author: WALTER J. ROTHSCHILD, Judge.

text:
    Tywanna BAKER v. TMSEL.
    No. 07-CA-227.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2007.

      Marc E. Belloni, Martin L. Broussard, Jr., Attorneys at Law, New Orleans, LA, for PlaintiffiAppellee.
    Philip J. Borne, Oscar M. Gwin, IV, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Anna E. Dow, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

L,In this workers’ compensation case, judgment was rendered in favor of the claimant, Tywanna Baker. Appellant, Transit Management of Southeast Louisiana, Inc. (“TMSEL”), contends that the workers’ compensation judge was manifestly erroneous in finding that Ms. Baker suffered a compensable injury connected to a workplace accident. For the reasons stated herein, we affirm.

Facts and Procedural History

Tywanna Baker was employed by TMSEL as a transit operator from 1998 until 2002. On May 14, 2002, Ms. Baker presented to the emergency room for back and leg pain, and she was hospitalized from June 10, 2002 until June 17, 2002 for a blood clot. She discontinued working after the May incident due to pain. She subsequently filed a disputed claim for ^compensation seeking wage benefits and medical treatment. TMSEL disputed that Ms. Baker suffered a work-related accident and therefore denied her claim.

TMSEL subsequently brought a motion for summary judgment as to Ms. Baker’s claims and this motion was denied by judgment rendered on November 10, 2004 on the basis that the trial judge found genuine issues of material fact.

Trial on the merits in this matter was held on August 31, 2006. The parties stipulated that Ms. Baker was employed by TMSEL during all relevant times, and they also stipulated to the admission of the medical records.

At trial, Tywanna Baker testified that she sustained injury to her lower back at the L3-L4 levels and that she was also diagnosed with deep vein thrombosis as evidenced by a blood clot in her left leg. She stated that she experienced back pain in May of 2002 due to the movement and bumping of driving the bus. She stated that she had a previous vehicular accident in 2001 when a vehicle hit the bus which she was driving in connection with her employment. She stated that she sought medical treatment for the back injury she sustained in 2001 from her employer’s physician, but that she did not file a workers’ compensation claim at this time. She stated she saw Dr. Norman Ott for a period of 3-6 months during which time she continued to work. She stated she was discharged by Dr. Ott in August of 2001 and she continued working as a bus driver although she had some back pain.

Ms. Baker admitted that she was not involved in a vehicular accident after April of 2001, but that on May 14, 2002 her back began hurting and her leg began to swell without any type of traumatic event. The medical records ^indicate that she reported a twisting of her torso as the onset of the symptoms and that she told medical personnel1 that her back “shut down” on this date. Following an emergency room visit, she was given medication and told to follow up with her doctor. However, she was unable to continue working due to the pain she experienced at this time.

Ms. Baker stated that she subsequently underwent an MRI and that she saw Dr. Alix Bouchette on May 22, 2002. At this time, she was diagnosed with a herniated disc in her lower back and she was referred to a neurologist for the disc injury. Ms. Baker stated that the neurologist, Dr. Frank Culicchia, subsequently noticed the swelling in her leg and diagnosed her with deep vein thrombosis. She also saw Dr. Robert Kessler, who told her she could not drive the bus any longer. She then informed her employer of this condition by completing an Occupational Injury Report Form. Ms. Baker stated that the last wages she earned from TMSEL were $16 or $17 per hour.

Ms. Baker testified that she was hospitalized for seven days in June of 2002 because of the deep vein thrombosis. She said that although that condition resolved, she continues to take medication for that condition. Ms. Baker testified that she continues to seek medical treatment for her back from Dr. Robert Lesser. She stated that due to her medical condition she is no longer able to work because she has to sit, stand and prop her leg up during the day due to numbness, tingling and a burning sensation in her leg. She stated that she has not looked for another type of employment due to the pain she experiences.

The workers’ compensation judge took this matter under advisement and rendered a judgment on October 10, 2006 finding that Tywanna Baker | Rhad suffered a compensable work injury on May 14, 2002 to her back and left leg for which she continues to be temporarily totally disabled. The judgment further provided that Ms. Baker was entitled to weekly benefits in the amount of $398 and to the payment of all medical expenses relating to this accident.' The workers’ compensation judge also assigned reasons for judgment on October 12, 2006.

By this appeal, TMSEL contends that the workers’ compensation judge manifestly erred in finding claimant suffered a compensable injury to her left leg because the deep vein thrombosis which was diagnosed is a perivascular injury that is specifically excluded from the purview of the workers’ compensation statute, La. R.S. 23:1021(8)(e). Further, TMSEL contends on appeal that the workers’ compensation judge was manifestly erroneous in finding claimant sustained a compensable injury to her back as claimant failed to meet her burden of proving the existence of a work-related accident on May 14, 2002.

Law and Discussion

Workers’ compensation benefits are available for claimants who suffer personal injury by accident arising out of and in the course of employment. La. R.S. 23:1031(A). An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1).

The claimant’s burden of proof in establishing a causal relationship between a job-related accident and the disability is by a preponderance of the evidence. Quinones v. U.S. Fidelity and Guaranty Company, 93-1648 (La.l/14/94), 630 So.2d 1303, 1306-07; Lafrance v. Custom Built Torque Convertors, 96-971 (LaApp. 5 Cir. 4/29/97), 694 So.2d 1027, 1030. There is a legal presumption that the accident caused the disability when an employee proves that before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition. Id. The medical testimony “must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability ...” Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, 1044-45 (La.1982). Further, an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985); Rhoto v. Louisiana Transmission Parts, 95-965 (La.App. 5 Cir. 3/13/96), 670 So.2d 1388, 1392.

Once the disabled employee establishes the presumption of a causal relationship, the party denying the existence of the presumed fact assumes both the burden of producing evidence and the burden of persuasion on the issue. Quinones v. U.S. Fidelity and Guaranty Company, 630 So.2d at 1307; Rhoto v. Louisiana Transmission Parts, 670 So.2d at 1392. In other words, in order for the party denying the existence of the presumed causal relationship to prevail, he must produce evidence and persuade the trier of fact that it is more probable than not that the work-related injury did not 17accelerate, aggravate, or combine with the preexisting disease or infirmity to produce the employee’s disability. Id; See also, Penny v. Avondale Container Service, 93-966 (La.App. 5 Cir. 3/29/94), 636 So.2d 980, 983; Fiffie v. Borden, Inc., 92-1062 (La.App. 5 Cir. 5/12/93), 618 So.2d 1199, 1202, writ denied, 93-1610 (La.9/24/93), 624 So.2d 1235.

In a workers’ compensation case, the standard of review has been set forth by this Court as follows in Hookfin v. Advantage Nursing Services, 03-340 (La.App. 5 Cir. 10/15/03), 860 So.2d 57, 59, writ denied, 03-3136 (La.1/30/04), 865 So.2d 85:

The manifest error standard of review applies to factual findings in a workers’ compensation case. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Scuderi v. Crazy Johnnie Cafe, Inc., 02-243. p. 4 (La.App. 5th Cir.10/16/02), 831 So.2d 1037, 1040. In applying the manifest error-clearly wrong standard, we must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Chaisson, 97-1225 at p. 13; 708 So.2d at 380; Scuderi, 02-243 at p. 4, 831 So.2d at 1040. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though we may feel that its own evaluations and inferences are as reasonable. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); Gray v. H.B. Zachary Const. Co., 01-276, p. 6 (La.App. 5th Cir.9/25/01), 798 So.2d 271, 274, writ denied, 01-2847 (La.1/4/02), 805 So.2d 207. Thus, where there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Scuderi, 02-243 at p. 4, 831 So.2d at 1040. Thus, if the factfinder’s findings are reasonable in light of the record, we may not reverse or modify the judgment. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Scuderi, 02-243 at p. 4, 831 So.2d at 1040-1041.

With regard to the back and leg injury, the workers’ compensation judge found that Ms. Baker suffered a compensable work injury on May 14, |s2002. The judge found that Ms. Baker twisted her torso on that date which was an identifiable precipitous event that caused her injury. The judge also found that there was a causal connexity between the precipitous event and the resulting leg and back injury. After a review of the record, we find that the testimonial and medical evidence in the record fully supports the findings of the workers’ compensation judge with regard to Ms. Baker’s back and leg injury.

Ms. Baker testified that she first injured her back in a work-related accident while driving a bus in April of 2001. She was treated for this injury for several months, and resumed her normal duties as a bus driver. Ms. Baker testified that on May 14, 2002, her back began hurting and she reported that a twisting of her torso on that date caused pain which prevented her from returning to work. She reported to the emergency room that day complaining of low back pain radiating to her left leg.

The medical evidence indicates that Ms. Baker was diagnosed by Dr. Alix Bou-chette with a herniated disc on May 22, 2002. Further, the evidence in the record fully supports a conclusion that the injury was work-related. The treating neurologist, Dr. Frank Culicchia, found that “a left lateral recess sequestered fragment ... at the L4 level ... may well account for her complaints.” Based on all of the evidence presented, the workers’ compensation judge concluded that the May 14, 2002 twisting event described by Ms. Baker caused her back and leg pain. Dr. Isaac Kirschbom found that Ms. Baker is significantly disabled, and that she is not capable of returning to work driving a bus full or part time. In sum, the evidence supports a finding that the work-related event on May 14, 2002, which 19aggravated a pre-existing back injury suffered in April of 2001, accounts for the back and leg injury sustained by Ms. Baker.

In disputing that Ms. Baker’s injury is compensable, TMSEL relies on the fact that Ms. Baker failed to describe a new accident on May 14, 2002 and denied the occurrence of a traumatic event on that date. However, TMSEL failed to produce evidence or otherwise persuade the trier of fact that Ms. Baker’s previous back injury was not accelerated by an incident on May 14, 2002.

Rather, the undisputed evidence in this case indicates that Ms. Baker suffered a work-related injury to her back in 2001. She was treated and attempted to continue her employment as a bus driver, but the twisting incident on May 14, 2002 aggravated her previous back injury and prevented her from continuing her employment. The medical evidence undisputably shows that Ms. Baker suffered a disc herniation which became evident after the May 2002 incident.

The findings of the workers’ compensation judge that the “identifiable precipitous event” on this date constitutes a compen-sable work injury for which Ms. Baker continues to be temporarily totally disabled is supported by the record. Absent manifest error, we fail to disturb the factual findings in this case.

In arguing that claimant’s left leg injury is not work-related or compensable, TMSEL relies on La. R.S. 23:1021(8)(e), which provides as follows:

(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable Impursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

This provision, added by La.Act. No. 454, § 1, of 1989, became effective January 1, 1990. It imposes a more stringent test for recovery than was previously set out in our jurisprudence. See, e.g., Carrwthers v. PPG Industries, Inc., On Rehearing, 551 So.2d 1282 (La.1989); Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). First, a standard of clear and convincing evidence is imposed rather than the previous standard, a preponderance of the evidence. Second, the worker must demonstrate that the physical work stress experienced was “extraordinary and unusual” in comparison to that experienced by the average employee in that occupation, rather than as previously compared to stress in a non-employment setting. And finally, the amendment added the requirement that the worker establish that the physical work stress “and not some other source of stress or preexisting condition” was “the predominant and major cause” of the heart related or perivascular injury, illness or death.

TMSEL contends that deep vein thrombosis (DVT) constitutes a perivascular injury which is not considered a personal injury by accident arising out of workplace employment pursuant to La. R.S. 23:1021(8)(e). In her brief filed in this Court, Ms. Baker does not dispute that the DVT is lunoncompensable, but she argues that the condition nevertheless contributes to her disability. We agree.

Pursuant to the holding of the Louisiana Supreme Court in Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01), 784 So.2d 1284, 1291, a showing of “physical work stress” is required prior to compensability for a perivascular injury under the workers’ compensation statute. In the present case, the record contains no evidence that Ms. Baker’s job involved strenuous manual labor, or that she was engaged in physical work stress at the time of her injury. Rather, the record shows that she was performing the usual duties of her employment at the time of her injury. Although the workers’ compensation judge relied on the medical evidence that the claimant’s “clot formation is secondary to her occupation and lifestyle rather than of underlying hypercoagulable state,” we find that based on the current state of the law, the DVT as evidenced by the blood clot is a noncom-pensable injury under the specific provisions of La. R.S. 23:1021(8)(e).

Nevertheless, the evidence in the record supports the findings of the workers’ compensation judge that Ms. Baker is temporarily totally disabled due to the back injury which included radiating leg pain which was diagnosed as a herniated disc. Although Ms. Baker was also diagnosed with DVT, that condition does not account for the back and radiating leg pain which caused her disability. Ms. Baker’s vascular condition does not disqualify her claim because the work-related back injury combined with this condition produce the disability for which compensation is claimed.

Conclusion

Accordingly, for the reasons assigned herein, we find no manifest error in the judgment of the workers’ compensation judge finding Tywanna 1 iaBaker is entitled to workers’ compensation benefits as a result of a work-related injury. The judgment is hereby affirmed and TMSEL is liable for all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Karen LONGWELL and her husband, Charles Longwell and adult daughter of Karen Longwell, Jennifer Rodriguez v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 1 d/b/a West Jefferson Medical Center, Dr. Robert C. Dawson, III and Culicchia Neurological Clinic, L.L.C. Karen Longwell and her husband, Charles Longwell and adult daughter of Karen Longwell, Jennifer Rodriguez v. Jefferson Parish Hospital Service District No. 1 d/b/a West Jefferson Medical Center, Dr. Robert C. Dawson, III and Louisiana Medical Mutual Insurance Company (“LAMMICO”).
    Nos. 07-CA-259, 07-CA-260.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2007.

      P. Chris Christofferson, P. Chris Chris-tofferson, APLC, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Peter J. Butler, Peter J. Butler, L.L.C., Gretna, Louisiana, and Peter J. Butler, Jr., Michael C. Luquet, Ralph T. Rabalais, Lydia Habliston Toso, Breazeale, Sachse, & Wilson, L.L.P., New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| ^Plaintiffs/appellants appeal a trial court ruling which granted summary judgment in favor of defendant/appellee hospital on the issue of spoliation of evidence in the context of a medical malpractice claim. For the reasons that follow, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

This case appears before us for the second time on appeal. Previously, the trial court granted a partial summary judgment in favor of plaintiffs/appellants, Karen Longwell, Charles Longwell, and Jennifer Rodriguez (“plaintiffs or plaintiff’), on the issue of whether defendant/appellee, West Jefferson Medical Center (“WJMC”), was negligent in the destruction of images related to plaintiffs medical procedure. In that appeal, we vacated the certification of appealability issued by the trial judge, dismissed the appeal, and remanded for further ^proceedings after finding that the judicial policy against piecemeal litigation was not outweighed by any considerations of justice to the litigants.

Following remand, WJMC filed a Motion for Summary Judgment for a dismissal of all plaintiffs’ claims against it, as well as a Supplemental Motion for Summary Judgment after plaintiffs filed a Supplemental and Amending Petition.

After a hearing on December 8, 2006, the trial court granted WJMC’s Motion for Summary Judgment. The plaintiffs timely filed the present appeal.

As we noted in our previous decision, Longwell, et al. v. Jefferson Parish Hosp. Serv. Dist. No. 1, et al., the pertinent facts of the underlying suit are as follows:

Karen Longwell was diagnosed as suffering from a cerebral aneurysm or weak “bubble” in an artery in her brain. Dr. Robert Dawson, a specialist in inter-ventional neuroradiology, decided to perform a trans-femoral coil embolization of the aneurysm. This procedure involves running a catheter through the arteries and into the “bubble” and then introducing through the catheter a number of microcoils. These coils are then activated and they crinkle up and fill the “bubble” causing the blood to clot in the artery. This effectively prevents the aneurysm from rupturing and causing bleeding in the brain. Unfortunately, during this operation secondary blood clotting occurred and a clot apparently blocked an artery and caused the patient to suffer a stroke.
To perform this procedure it is necessary to make contemporary x-ray images while the catheter and coils are being inserted and activated and that was done in this case. However, when suit was filed it was discovered that the images had all been lost. WJMC represented that it had recently installed a new computerized system in which all of the images were stored electronically in the system. It further represented that the technician operating the machine during the procedure here either did not save the images or did so in a manner that would permit them being overwritten later. In either case it admitted that they were lost. It further acknowledged that La. R.S. 40:2144(F)(2) requires that hospitals retain electronic imaging for three years from discharge of a patient, and that it breached this duty in not doing so.

| sOn appeal, plaintiffs assert that the trial court erred in granting WJMC’s Motion for Summary Judgment based on the finding that all of the plaintiffs’ claims lie in spoliation of evidence within the parameters of Desselle v. Jefferson Parish Hosp. Dist. No. 2 d/b/a East Jefferson Gen. Hosp. Plaintiffs further argue that the trial court erred in dismissing their claim of gross negligence against WJMC based upon the finding that plaintiffs could not demonstrate that the destruction of the images at issue was intentional.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

|Jn their original petition, plaintiffs asserted the following relevant claims against WJMC:

IV.
Plaintiffs aver that the Petition for Damages is filed herein against defendants not for a medical malpractice claim of negligent injury but for spoliation of evidence, intentional or negligent, or in the alternative, impairment of a civil action, for the subsequent disappearance of and/or destruction of the cerebral angiogram performed on January 28, 2002 by Dr. Robert C. Dawson III on Karen Longwell while a patient at West Jefferson.
XI.
Plaintiffs aver that spoliation of the evidence and/or intentional interference with a civil claim, i.e. disappearance and/or destruction of Karen Longwell’s January 28, 2002 cerebral angiogram and intentional falsification of a medical record should result in an award of damages commensurate with those of proof of the medical malpractice claim, simultaneously filed with the Division of Administration, as well as an award of the presumption in a trial that the missing evidence contained information detrimental to the party which destroyed the evidence, given the statutory obligation to preserve the angiogram film for three years.

In their Supplemental and Amending Petition for Damages filed on September 25, 2006, the plaintiffs supplemented Paragraph IV of their original petition for damages to read:

Additionally, or in the alternative, defendant, West Jefferson, is negligently or grossly negligent in development of and/or enforcement of its administrative policies and procedures relative to creation of and protection of films and digital images of the cerebral angiogram and embolization of an anterior communicating artery aneurysm of Karen Longwell (procedure) performed on January 28, 2002 by Dr. Robert Dawson in Special Procedure Room 8 at West Jefferson, which acts of negligence or gross negligence involving administrative policies and procedures fall outside the Medical Malpractice Act.

WJMC represents that the technicians operating the machine during plaintiffs procedure either did not save the images or did so in a manner that 17would permit them being overwritten later. In either case, it admitted that they were lost. It further acknowledges that LSA-R.S. 40:2144(F)(2) requires that hospitals retain electronic imaging for three years from discharge of a patient and that it breached this duty in not doing so.

In its Reasons for Judgment the trial court held, citing Desselle v. Jefferson Parish Hosp. Dist. No. 2 d/b/a East Jefferson Gen. Hosp., supra:

The defendant argues that this suit is one purely for spoliation of evidence, and therefore the plaintiff must present evidence that the failure to maintain the angiogram images was intentional. The plaintiffs’ only alleged damage is the impairment of her separate medical malpractice suit. We therefore agree with the defendant that the law of spoliation of evidence must apply.
The defendant presented significant evidence that the failure to maintain the film images was inadvertent, and likely due to employees’ lack of familiarity with a recently installed “filmless” ang-iography system. The plaintiff has been unable to produce any countervailing evidence that the failure to maintain the images was intentional.

In Desselle, this Court recounted the law regarding spoliation of evidence, as follows:

The theory of “spoliation of evidence” refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Pham v. Contico Intern. Inc., 99-945, p. 4 (La.App. 5th Cir.3/22/00), 759 So.2d 880, 882; Quinn v. RISO Investments, Inc., 03-0903, p. 5 (La.App. 4th Cir.3/3/04), 869 So.2d 922, 927. A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Pham, 99-945 at p. 4, 759 So.2d at 882; Quinn, 03-0903 at p. 5, 869 So.2d at 927. Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply. Quinn, 03-0903, p. 5, 869 So.2d at 927; Smith v. Jitney Jungle of Am., 35,100, p. 11 (La. App. 2nd Cir.12/5/01), 802 So.2d 988, 995, writ denied, 02-0039 (La.3/15/02), 811 So.2d 913. The tort of spoliation of evidence has its roots in the evidentiary doctrine of “adverse presumption,” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the IsParty who destroyed the evidence unless such destruction is adequately explained. Pham, 99-945 at p. 4, 759 So.2d at 882; Quinn, 03-0903 at p. 5, 869 So.2d at 927.

This case presents an issue that is one of first impression in this Circuit. In our previous opinions regarding spoliation claims, we had not been confronted with a fact scenario in which a defendant had an obligation to preserve evidence on behalf of a plaintiff. In contrast, the record currently before us reflects that WJMC admits that it negligently violated a statutory duty in not preserving the plaintiffs records.

Other circuits have recognized a cause of action for spoliation that arises when a defendant has an obligation to preserve evidence. In Carter, et al. v. Exide Corp., et al., the Second Circuit discussed the issue of spoliation as it pertained to an employer and an exception of no cause of action. We find the analysis in that case instructive.

Did the defendant have a duty to preserve the evidence for the plaintiff, whether arising from a statute, a contract, a special relationship between the parties, or an affirmative agreement or undertaking to preserve the evidence? See generally Edwards v. Louisville Ladder Co., 796 F.Supp. 966 (W.D.La. 1992), and authorities cited therein. If so, the plaintiff has a cause of action for the defendant’s breach of this duty. If not, the law does not afford the plaintiff a cause of action. The courts have consistently held the plaintiff to a high standard of factual specificity regarding the source of the defendant’s alleged duty to preserve evidence for the plaintiffs benefit, requiring a showing of something more than the general tort duty to act reasonably under the circumstances.

|nThe court in Edwards v. Louisville Ladder Co., 796 F.Supp. 966 (W.D.La. 1992), cited above, further referenced the case of Bondu v. Gurvich, a Florida appellate court case that addressed a similar issue to the one at bar. In Bondu, the plaintiff, as personal representative of her late husband’s estate, brought a negligence action against an anesthesiologist and a hospital, alleging that the hospital was negligent per se by failing to provide her with requested medical records and that the hospital intentionally interfered with her right of action. In that case, the court recognized a negligence claim for spoliation of evidence where the hospital failed to preserve records. The court held that a duty on the part of the hospital in favor of the plaintiff was established by a statute and since the plaintiff alleged that this duty was breached by the hospital when it failed to furnish her husband’s records to her, and that this breach caused her damage in that she lost “a medical negligence lawsuit when [she] could not provide expert witnesses,” her complaint stated a cause of action.

In Louisiana, negligence claims are resolved by employing a duty/risk analysis. The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of plaintiffs injury (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damage element).

|10In our previous Longwell opinion, we observed that the trial court’s grant of summary judgment on the issue of WJMC’s negligence was premature because the issues of causation and damages had not been addressed, although a breach of duty had already been established.

Here the judgment appears to be one simply holding that the hospital negligently destroyed records which by statute they were required to maintain for three years. The unadjudicated related issues are first whether that negligence caused harm to the plaintiffs, and if so what were their damages. We see no reason why the partial judgment should be appealable now because neither plaintiffs nor the hospital can suffer any harm in adjudicating the remainder of the issues before seeking relief on appeal.

The record shows that a determination of the causation and damage issues remains outstanding. It appears that the trial court, in granting WJMC’s Motion for Summary Judgment, essentially rendered its previous finding of negligence on the part of WJMC moot by dismissing all of plaintiffs’ claims against it.

After a review of the record in the present case, we cannot say that the trial court erred in granting summary judgment in favor of WJMC on the specific issue of plaintiffs’ deliberate spoliation claims. Simply stated, the record is devoid of evidence that WJMC intentionally destroyed the records at issue and, therefore, a spoliation claim cannot stand as defined by the parameters of Desselle. However, we further find that, based on the facts presented, the trial court erred in dismissing plaintiffs’ claims against WJMC in their entirety. We find the present case distinguishable from Desselle in that WJMC had a statutory duty to preserve the plaintiffs records which, when breached, became actionable under a theory of negligence. To the extent that the trial court’s judgment holds to the contrary, it is hereby reversed.

| nAccordingly, for the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Each party is to bear its own cost on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . 05-324 (La.App. 5 Cir. 11/29/05), 919 So.2d 736-37.

      . 04-455 (La.App. 5 Cir. 10/12/04), 887 So.2d 524.

      . Bua v. Dressel, 96-79 (La.App. 5 Cir. 5/28/96), 675 So.2d 1191, writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348 (citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180).

      . Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5 Cir. 4/9/97), 694 So.2d 1006.

      . Id. at 1008.

        .J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305.

      . 887 So.2d 524, 534.

      . See also, Hooker v. Super Prod. Corp., 98-1107 (La.App. 5 Cir. 6/30/99), 751 So.2d 889, writ denied, 99-2911 (La. 12/17/99), 751 So.2d 880, writ denied, 99-2947 (La. 12/17/99), 751 So.2d 884, and Pham v. Contico Int'l, Inc., 99-945 (La.App. 5 Cir. 3/22/00), 759 So.2d 880.

      .27,358 (La.App. 2 Cir. 9/29/95), 661 So.2d 698, 704-05.

      . 473 So.2d 1307 (Fla.App. 1984).

      . Perkins v. Entergy Corp., 2000-1372 (La.3/23/01), 782 So.2d 606.

      . Id.

      . Longwell, supra, at 737.


author: CANNIZZARO, J. BAGNERIS, J., TOBIAS, J.,

text:
    John DESHOTEL v. DEPARTMENT OF POLICE.
    No. 2007-CA-0363.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.

      Frank G. Desalvo, Desalvo Desalvo & Blackburn, APLC, New Orleans, LA, for Plaintiff/Appellee, John Deshotel.
    Penya Moses-Fields, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Heather M. Valliant, Assistant City Attorney, Victor L. Papai, Jr., Assistant City Attorney, New Orleans, LA, for Defendant/Appellant, Department of Police.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.)
   CANNIZZARO, J.

hThe defendant/appellant, New Orleans Police Department (“NOPD”), appeals from a decision in favor of the plaintiff, Sergeant John Deshotel, rendered by the New Orleans Civil Service Commission(“CSC”). After reviewing the record and applicable law, we affirm the decision.

FACTS AND PROCEDURAL HISTORY

Sergeant Deshotel was stationed at the New Orleans Superdome prior to, during, and after Hurricane Katrina. He was responsible for the supervision of five other NOPD officers during that time. At approximately 5:30 a.m., on Saturday, September 3, 2005, Sergeant Deshotel made the decision to leave his post without obtaining permission from his chain of command. He stated that when he left, most of the occupants of the Superdome had been evacuated. He further stated that he heard that once the Superdome was empty, his unit would be immediately assigned to the Convention Center. The reason for his departure was to obtain life-saving heart medication for his 80-year old mother who had refused to evacuate New Orleans before the storm. Sergeant Des-hotel testified that he did not ask ^permission from his immediate superior because he knew that his request would be denied. Sergeant Deshotel also knew that his actions could result in some kind of discipline. He returned within twenty-four (24) hours and discovered that his unit was relieved from duty at 1:00 p.m. the previous day. Sergeant Deshotel testified that while he did not obtain permission before leaving his post, he did leave telephone messages with his supervisor during the period he was absent. The parties stipulated that if called to testify, Sergeant Deshotel’s superior officer would have stated that he did not give Sergeant Des-hotel permission to leave his duty assignment.

By letter dated December 21, 2005, the NOPD gave Sergeant Deshotel the minimum thirty-day suspension for neglect of duty, and an additional ten days because he was a supervisor. He appealed the forty-day suspension.

The decision of the NOPD was assigned to a hearing officer and was heard on March 8, 2006, at which time testimony was presented. The hearing officer found that the facts underlying the NOPD’s decision, i.e. abandonment, were proven. However, the hearing officer found that Sergeant Deshotel’s actions did not give rise to the level of discipline imposed by the NOPD. Although the hearing officer found that Sergeant Deshotel should have obtained permission before leaving and did not, the hearing officer recommended that the CSC uphold the appeal in light of the limited time he was gone and the reason for leaving his post.

DThe CSC reviewed the hearing officer’s recommendation and agreed that the facts of the matter were proven. However, the CSC unanimously found that the NOPD failed to establish by a preponderance of the evidence that it disciplined Sergeant Deshotel for cause. It stated that the NOPD abused its authority by failing to consider Sergeant Deshotel’s mitigation and establish that his actions undermined the efficient operation of the department. The NOPD timely filed the instant appeal.

LAW AND DISCUSSION

The NOPD has assigned two errors for review. First, it contends that the CSC acted arbitrarily in disregarding the stipulation between the parties when it found that the NOPD failed to establish that it disciplined Sergeant Deshotel for cause. In addition, the NOPD argues that the CSC erred in substituting its own judgment for that of the NOPD where cause exists and where the discipline imposed was commensurate with the discipline imposed against all other similarly situated officers.

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. The employee may appeal from such disciplinary action to the CSC. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8 (1974); Walters v. Department of Police of New Orleans, 454 So.2d 106, 112-113 (La.1984). The CSC’s decision is subject to preview on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X § 12(B).

The CSC has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Walters, 454 So.2d at 113. Legal cause for disciplinary action exists whenever an employee’s conduct impairs the efficiency of the public service in which that employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir.1990). The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service. Id. at 1315.

In reviewing the CSC’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this court should not modify the CSC’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” means that there is no rational basis for the action taken by the CSC. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

The CSC has the authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Fihlman v. New Orleans Police Department, 00-2360 (La.App. 4 Cir. 10/31/01), 797 So.2d 783. The legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of civil service employees is only against firing (or other discipline) without cause. Id. at p. 5, 797 So.2d at 787. Thus, in the instant case, unless the CSC determined that there was insufficient cause for the Superintendent to impose the forty-day suspension, the penalty must stand.

The superintendent of police is charged with the operation of his department and it is within his discretion to discipline an officer for sufficient cause. Id.

In this case, the CSC noted in its written decision that the NOPD presented no fact witnesses at the hearing. The CSC also noted that NOPD Assistant Superintendent Steven Nicholas had testified that although Sergeant Deshotel should have obtained permission before leaving his post, Sgt. Deshotel’s supervisor would have granted him permission to leave had he requested it. Furthermore, in rendering its decision, the CSC adopted the following findings from the hearing examiner’s report:

The Appellant responded to the call to duty without questions. He was assigned, accepted, and worked around the clock in the first week at the unbelievable and horrific confines of the Super-dome. He was on duty for those first six days attempting to provide security, save lives, and give some semblance of hope to the citizens waiting for rescue.
Considering the fact that so many [a]p-peals are of officers who just failed to report, or who reported and decided to desert the citizens of New Orleans, this [ajppeal is very different. This is an officer who was there, remained on duty, and did leave for a few hours to | r,assist his mother who was in need of medicine. After doing so, he immediately returned to his duty assignment ...
The facts of the matter are proven. However, the Hearing Examiner finds that the actions on the part of the Appellant do not give rise to the level of discipline in this particular Appeal.
The Appellant was there for the citizens of New Orleans. And, he did not leave to assist his mother until after the evacuation was completed by the late arriving federal troops. And, the fact that his unit was relieved of duty on that day at about one o’clock proves that his job was done.

After reviewing the record in this matter, we agree with the CSC’s finding that the NOPD did not establish by a preponderance of the evidence that it disciplined Sergeant Deshotel for cause. The NOPD failed to present any evidence whatsoever that Sergeant Deshotel’s conduct bore a real and substantial relationship to the efficient operation of the public service. Thus, we conclude that the CSC neither erred nor abused its discretion when it granted Sergeant Deshotel’s appeal and ordered the NOPD to return to him forty days of back pay and the emoluments of employment.

DECREE

Accordingly, the decision of the CSC is affirmed.

AFFIRMED.

BAGNERIS, J. concurs with reasons.

TOBIAS, J., dissents with reasons.

BAGNERIS, J.,

concurring.

IT respectfully concur and find that this Court should affirm the findings of the Civil Service Commission. In the days of Katrina the City of New Orleans and those in civil service were faced with new and unique circumstances. Sergeant Deshotel has been working with the New Orleans Police Department since 1987 and during the days of Katrina the CSC found that he continued to serve this City during its darkest days. Sergeant Deshotel seized the little window of opportunity that he had to obtain heart medicine for his eighty-year old mother. He had the decency to telephone his supervisor and report his whereabouts.

I find that the Commission is in the best posture to determine whether the NOPD sufficiently established that it met its burden of proof. “In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.” Lombas, 467 So.2d at 1275, quoting Walters v. Department of Police of the City of New Orleans, 454 So.2d at 114. Cittadino v. Department of Police 558 So.2d 1311 (La.App. 4 Cir.1990).

I think that Sergeant Deshotel’s suspension for forty days for neglect of duty was not commensurate to the violation considering the mitigating circumstances. I understand that the Superintendent put into place emergency orders imposing clear penalties for officers who failed to report or remain for duty thus requiring a 30-day suspension for any unauthorized absence of two hours up to six days. I also believe that this punishment was imposed for those limited circumstances in which some officers chose to outright not serve the City; whose whereabouts were unknown; who failed to contact their supervisor; and who took on a selfish, self-serving role to protect themselves only. Sergeant Des-hotel did none of that.

TOBIAS, J.,

dissenting.

hi respectfully dissent. I would reverse and reinstate the discipline imposed by the New Orleans Police Department (“NOPD”).

The majority has ignored certain facts in the record. For example, Sergeant Des-hotel admitted under oath that he did not ask permission to leave his posting at the Louisiana Superdome from his immediate superior because he knew that his request would be denied. Sergeant Deshotel also stated under oath that he knew that his actions would result in some kind of discipline. It is undisputed that Sergeant Des-hotel was responsible for the supervision of five other NOPD officers at the Super-dome at the time he left his post.

The majority argues that the NOPD did not prove that Sergeant Deshotel’s actions bore a real and substantial relationship to the efficient operation of the public service, relying on the fact that the Super-dome had been substantially evacuated and his unit was relieved of duty several hours after he left. However, the majority ignores Sergeant Deshotel’s admission that he was actively supervising five officers when he left his post. No evidence exists that Sergeant Deshotel advised his men of his departure, or that he spoke to another supervising officer to take command of his officers. More importantly, Sergeant Deshotel did not know that his unit was going to be relieved of duty when he left. Instead, Sergeant Deshotel testified that he left when he did because he was under the | ^impression that his unit was going to be immediately assigned to police the New Orleans Convention Center. While I might be persuaded to reduce the amount of discipline imposed on Sergeant Deshotel because the discipline imposed appears harsh, I cannot condone his behavior and neither should the majority or the New Orleans Civil Service Commission.

As we noted in McElrath v. Department of Police, 06-1288, p. 1 (La.App. 4 Cir. 5/23/07), 959 So.2d 566, 567:

On August 27, 2005, due to the approach of Hurricane Katrina, Superintendent Eddie Compass placed the New Orleans Police Department in “Activation Status” in order to mobilize departmental personnel for emergency operations upon the hurricane’s making landfall. Pursuant to this status, all essential personnel were required to report to duty and remain on duty until relieved. It was made clear that only the Superintendent himself could grant furlough to an officer who sought to be relieved of duty after the storm.
[Emphasis added.]

We further stated:

The appellants were aware that only the Superintendent himself could grant furlough to an officer who sought to be relieved of duty after the storm, but left anyway. Although the appellants [sic] actions were understandable, that does not change the fact that they violated the rule laid down by the Superintendent. The purpose of this rule was to centralize control of the police force under the Superintendent and avoid chaos in organizing and administering rescue efforts following the hurricane.

Id. at pp. 3-4, 959 So.2d at 568 [emphasis added].

These same facts apply to Sergeant Des-hotel’s case. He left his post without permission, thereby violating the rule laid down by the Superintendent. Based on the logic of the majority, every officer on duty, given sufficient “mitigating circumstances” in the officer’s subjective opinion, was entitled to leave his/her post without permission if that officer believed that his/ her job was finished. How many desertions does it take for there to be a real and substantial relationship to the |sefficient operation of the public service? I find that the NOPD met its burden of proof and thus dissent from a decision to find that Sergeant Deshotel should not be punished for violating rules of the Superintendent of Police.


text:
    STATE of Louisiana v. Felton D. LAGARDE.
    No. 07-KA-288.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Thomas J. Butler, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

^Defendant, Felton D. LaGarde, was indicted and charged with second degree murder in violation of LSA-R.S. 14:30.1 and he pled not guilty. The case was tried before a 12-person jury which unanimously found defendant guilty as charged. Defendant filed a motion for new trial that was denied on February 9, 2007. On that same date, the trial court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence to run concurrently with the sentence on his prior armed robbery conviction. Defendant filed a timely motion for appeal that was granted.

| FACTS

Robert McCrory testified at trial that, on August 3, 2004, at approximately 5:30 to 5:45 p.m., he was about to watch the evening news at home when he heard two gunshots. When he got up out of his chair and looked out of the blinds, he observed defendant standing at the back of the lot directly across the street with a gun in his hand shooting at the ground. McCrory could not see what defendant was shooting at because the weeds were too high. As he looked out the window, McCrory saw defendant shoot one or two more times, then defendant turned around to see if anybody was looking. McCrory explained that defendant subsequently reached into his pocket, pulled out a black mask, put it over his head, and ran away. After the incident, McCrory went outside and saw a man lying on the ground. He positively identified defendant in a photographic lineup and in court as the shooter. McCrory noted that, immediately before he went inside his house to watch the evening news, he noticed defendant and another “guy” headed toward the back of the lot.

Dr. Frasier MacKenzie, an employee of the Jefferson Parish coroner’s office and a stipulated expert in the field of forensic pathology, testified that he performed the autopsy on the victim, Brian Scott, and found five gunshot wounds to the body, three of which were fatal (those to the head, right shoulder, and left shoulder).

Detective Dax Russo of the Jefferson Parish Sheriffs Office (JPSO) testified that, on or about August 4, 2004, he was assigned to investigate a claim regarding a stolen 1995 Toyota 4-Runner vehicle. When he searched that vehicle, he recovered a .25 caliber Raven semi-automatic silver handgun from under the front passenger seat.

| ¿Louise Walzer, a stipulated expert in the field of firearms identification, testified that the .25 caliber bullet recovered from the victim’s back was fired from the weapon recovered from the stolen Toyota 4-Runner.

JPSO Sergeant Larry Dyess testified that, on August 4, 2004, at 2:29 p.m., defendant waived his rights and gave a statement. The statement indicated that defendant was advised he was under arrest for second degree murder and under investigation for armed robbery.

In his statement, defendant said that he and a white female were smoking crack cocaine in a crack house. He then asked the female to give him a ride, but she refused. Defendant explained that the female got into her vehicle and started it, and that he got in the back seat, put the vehicle in park, and grabbed the keys. A struggle ensued, and the female subsequently jumped out of the vehicle. Defendant then jumped in the front seat and pulled off. Defendant said that he had a .380 automatic weapon in his pocket but did not point it at her.

After defendant left, he went across the river and parked the vehicle somewhere downtown. Defendant told the detective that the keys to the vehicle were “in his property.” He admitted that he was looking for a ride away from the area because someone told him that he had killed “Egghead.” Defendant explained that he and “Egghead” had gotten into an argument about $500.00 that “Egghead” owed him. He indicated that this argument occurred on Heather by Wayne (Streets) at a stop sign. “Egghead” said something to defendant that made him angry, but he could not remember what it was, so he shot the (.380) gun one time into the ground.

Defendant stated that that was not the same gun he used in the “other incident” that he and the detective previously talked about. He said that he left that | ¿weapon, which was silver, “way down somewhere.” Defendant stated that his partner nicknamed “Lester” or “June” came up to him after he shot the gun and gave him some crack cocaine. Defendant then left and went to “get loaded.” The next thing defendant remembered was coming out of “the house” from “getting loaded” and walking up the street. Defendant stated that “Lester” or “June” then told him that people were looking for him because they said defendant had killed “Egghead.”

Defendant said that he did not remember whether he killed “Egghead.” He indicated that he left the clothes he was wearing when he got into the argument with “Egghead” (black pants and a gray shirt) at his home in the Magnolia projects. He said that he was also wearing a gray “do-rag” on his head, which he always wore. Defendant explained that a “do-rag” was worn by either women or gang members, and that he would fit into the gang member category.

Sgt. Dyess identified photographs of keys to the Toyota 4-Runner taken from “the property belonging to defendant.”

After the State rested, defendant testified that he knew the victim, Brian Scott, as they grew up together and were best friends. He explained that Scott was also known as “Egg.” Defendant remembered having an argument with Scott regarding money on the day in question. He testified that after he shot the gun into the ground, he went to the crack house, and Scott went somewhere else. Defendant said that Scott died approximately 30 to 40 minutes later. He initially testified that he did not shoot Scott, but he later admitted that he did not know whether he shot Scott.

Defendant also admitted that he was addicted to crack cocaine and heroin. He testified that he did not have crack cocaine prior to the argument with Scott. Defendant indicated that he did not remember giving a statement because he was |fihigh on crack cocaine, heroin, and ecstasy at the time. Defendant also testified that after “Lester” told him that people were saying he had killed “Egg,” defendant stole a woman’s vehicle and left.

DISCUSSION

By his first assignment of error, defendant argues that the trial court erred by allowing him to represent himself at the suppression hearing without first securing a valid waiver of his right to counsel. He contends that the trial court failed to advise him of the dangers and pitfalls inherent in self-representation, and that the trial court made no effort to ascertain whether he understood his actions. Therefore, defendant asserts that his waiver of his right to counsel was not knowingly and intelligently made.

The State responds that a “Farettcf hearing” is not required in pre-trial proceedings but only requires a waiver of counsel at trial. The State further responds that defendant is precluded from claiming he had inadequate representation during the suppression hearing because he acquiesced in the decision to represent himself at that hearing. The State also contends that defendant cannot show prejudice as a result of representing himself at the suppression hearing.

The record shows that, on January 17, 2007, the first day of trial, defendant advised the trial judge that he wanted new representation. The trial judge responded that defendant had to remain with John Benz, his Indigent Defender Board (IDB) attorney, whether he liked him or not. Defendant explained that his attorney had no defense for him other than to show evidence of his drug addiction. The trial judge countered that defendant’s attorney could not fabricate a defense, and that defendant had to provide one himself. Defendant said he tried to do that, |7but his attorney would not listen to him. He also added that he had just been convicted on his first violent offense with his IDB attorney and received a 99-year sentence.

The trial judge stated that just because defendant did not get the result he wanted did not mean his attorney was not doing his best. Defendant said all he had on his case were police reports and statements, and the trial judge responded that that was probably all that had been provided to his attorney. Defendant indicated that his attorney had filed no motions for discovery. He further stated that he had told his attorney he had been in mental hospitals, was on medication, and was illiterate. Defendant asked the trial judge for “some help” considering that he was facing a life sentence if convicted.

Defendant also said he had told Benz approximately one month prior that he wanted to represent himself. Benz then enumerated the dates he had met with defendant. Benz indicated that, after defendant told him he wanted to represent himself, he sent defendant a letter on December 19, 2006 telling him that he had filed a motion to that effect which the trial judge had approved.

Benz further explained that he told defendant he intended to bring defendant’s sister to court to testify, and that if defendant decided he wanted Benz to try the matter, to let him know, and also to let him know if defendant wanted any witnesses subpoenaed. Benz said defendant did not respond to that. Benz further stated that he had filed a motion for discovery, and that discovery was subsequently given to him. He indicated that he filed other motions and expected them to be heard on the day of trial as they usually were. When defendant asked what motions had been filed, Benz told him there was a motion to suppress | ^evidence, confession, and identification, and a motion for criminal history on all state witnesses. Defendant said Benz had not told him about any of those motions.

The trial judge then asked defendant if he wanted Benz to help him or if he wanted to represent himself. Defendant responded that he would rather represent himself. The trial judge stated that Benz was going to “sit there” anyway and assist him. Defendant and Benz said, “[a]ll right.” The trial judge also informed defendant that there were rules of evidence that he was not familiar with. Defendant told the trial judge he respected him, but that he wanted to take his chances and represent himself.

The trial judge responded that he did not think defendant was qualified to represent himself in this case. He said he was going to allow defendant to represent himself, but he again stated that he was going to ask Benz to assist defendant. He told defendant that this was a “serious” charge, and only defendant could decide whether he wanted to be tried by the judge or a jury. Defendant subsequently stated that he wanted a jury trial. He also stated that he thought the district attorney had to give him the evidence they had against him. The trial judge said that all the district attorney’s office had were police reports and statements, and that the evidence came from witness testimony.

Defendant indicated he could not read, noting that he dropped out of school in the fifth grade, went to “LTI” at 11-years-old, and at one time was in New Orleans General, a mental hospital. However, defendant said that, while he was imprisoned, people had read the witnesses’ statements to him. The record indicates that defendant and Benz talked, after which defendant said the trial judge might as well convict him now because Benz was not defending him. The trial judge responded that he had known Benz a long time, and that Benz did the best he could for everybody he represented. After additional discussion, defendant told the trial Igjudge that if the trial judge could give Benz something to work with, he would keep Benz as his attorney. Benz told defendant that they had already gone over the witnesses’ statements.

Benz then told the trial judge that defendant had told him he did not remember anything about the incident. After more discussion, defendant agreed to go ahead with jury selection. Before the jury was selected and sworn, Benz told the jury that he would be assisting defendant in trying this matter. The jury was then selected and sworn and removed from the courtroom. The suppression hearing was subsequently held, after which the trial judge denied the motion to suppress the line-up and the statement. Following the trial judge’s denial, the trial judge again suggested to defendant that he reconsider and let Benz handle this case. Defendant responded that he thought it would be better for Benz to handle the case.

A defendant’s right to the assistance of counsel is guaranteed by both our state and federal constitutions. State v. Brooks, 452 So.2d 149,155 (La.1984), citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. State v. Bruce, 03-918 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 857. “A defendant may represent himself only if he makes an unequivocal request to represent himself and knowingly and intelligently waives his right to counsel.” Id., citing Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), and State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 893, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

A waiver of counsel, in order that an accused may enter into self-representation, must be clear and unequivocal. State v. Ormond, 00-1371 (La.App. 5 Cir. 4/24/01), 786 So.2d 187, 191. Requests which vacillate between self-representation and representation by counsel are equivocal. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, 147, cert. denied, — U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). A defendant who vacillates between self-representation and representation by counsel cannot be said to have waived his right to learned counsel. State v. Treadway, 97-901 (La.App. 5 Cir. 03/25/98), 710 So.2d 1121, writs denied, 98-1634 (La.09/25/98), 725 So.2d 490, 00-1197 (La.1/12/01), 780 So.2d 1067. Courts must indulge in every reasonable presumption against a waiver of counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Before accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. Bruce, 864 So.2d at 857. In addition, the court should inquire into the defendant’s age, education and mental condition, and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. Id.

“Whether an accused has knowingly and intelligently waived his right to counsel is a question which depends on the facts and circumstances of each case.” State v. Strain, 585 So.2d 540, 542 (La.1991), citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

A criminal defendant does not have the right to act both as “represented and representative” due to the potential for disruption of the trial process. State v. Brown, 03-897 (La.4/12/05), 907 So.2d 1, 24, citing State v. Bodley, 394 So.2d 584, 593 (La.1981). However, “hybrid” representation does allow a defendant the luright to defend himself as co-counsel while standby counsel explains and enforces the basic courtroom rules, as long as standby counsel participation does not seriously undermine the defendant’s appearance as representing himself before the jury. Brown, 907 So.2d at 21-24.

A defendant performs the core functions of an attorney’s traditional role when he formulates his own trial strategy, determines his own theory of the defense, chooses the witnesses to subpoena and to call to the stand, formulates the questions to be asked of the witnesses, and performs the opening and closing statements. State v. Dupre, 500 So.2d 873, 877 (La.App. 1 Cir.1986), writ denied, 505 So.2d 55 (La.1987). An attorney functions in an advisory capacity when he is not the controlling strategist, but rather helps the defendant with procedural matters and proper courtroom conduct. Id.

When an attorney partially represents a defendant who assumes functions that are at the core of an attorney’s traditional role, the defendant must still knowingly and intelligently waive his constitutional right to have his lawyer perform the core functions, in order to show that the defendant appreciates the possible consequences of mishandling the core functions that lawyers are more competent to perform. Dupre, 500 So.2d at 877. “Therefore, when an attorney is appointed as an advisor the accused must knowingly abandon his right to be represented by counsel.” Id.

Once the defendant has made a clear request to represent himself, the trial court must determine whether the defendant is competent to waive counsel and is voluntarily exercising informed free will. State v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, 321. Only the defendant’s competence to waive his right is at issue, not his competence to represent himself. Id.

| -i¡.Because there are no inflexible criteria or a magic-word formula for determining the validity of a defendant’s waiver of the right counsel, the inquiry into validity of the waiver must take into account the totality of the circumstances in each case. State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 845.

The trial court is given much discretion in determining whether the defendant’s waiver was knowing and intelligent. State v. Mendez, 05-173 (La.App. 5 Cir. 1/17/06), 923 So.2d 189, 194. Since the trial court has had the opportunity to observe the defendant in court appearances and motions, the trial court is familiar with the defendant. Id. An appellate court should not reverse the trial court ruling absent an abuse of its discretion. Id.

In the instant case, we find that defendant knowingly and intelligently waived his right to counsel. The record reflects that the trial judge told defendant he was facing a serious charge, and that defendant knew he was facing a potential life sentence. The record also reflects that the trial judge advised defendant of the disadvantages of self-representation. The trial judge told defendant that he did not think defendant was qualified to represent himself in this case. He informed defendant that there were rules of evidence defendant was not familiar with and questions defendant had to be able to ask the witnesses. The trial judge further informed defendant that he had to be able to select a jury and understand the procedures. The record also indicates that defendant’s IDB counsel told defendant that he would have to review witness statements, police reports, crime lab reports, and autopsy reports (which he gave defendant copies of) and be prepared to question individuals in connection with those statements and reports.

Additionally, we note that the trial judge was aware of defendant’s education and mental condition when he allowed defendant to represent, himself. Although defendant advised the trial judge that he dropped out of school in the fifth grade |1sand could not read, defendant indicated that many people had read the witnesses’ statements to him while he was in prison. Defendant also advised the trial judge that he was in a mental hospital at one time. However, the trial judge presided over defendant’s prior armed robbery trial and, therefore, he was familiar with defendant and knew that two doctors had found defendant competent to stand trial in that case.

We also find that defendant was not prejudiced by waiving his right to counsel at the suppression hearing, as defendant’s IDB counsel assisted defendant at the request of the trial judge. Additionally, the record shows that defendant competently cross-examined the witnesses at the suppression hearing and made pertinent legal arguments in support of his positions after conferring with IDB counsel. The record further shows that IDB counsel made significant arguments on behalf of defendant’s positions as well.

During the hearing on the motion to suppress identification, defendant attempted to elicit during his cross-examination of Detective Gorumba that the other men in the photographic lineup did not look like him. Following defendant’s cross-examination, IDB counsel asked the trial judge to wait a minute, after which defendant asked another question of the detective. As such, we find that IDB counsel actively participated in assisting defendant with the questions. The record also shows that during the cross-examination of the eyewitness, Robert McCrory, defendant elicited relevant testimony from McCrory that he was a good distance from the lot when he saw defendant shooting the gun. Following the testimony, the trial judge denied the motion to suppress the “identification lineup.”

The State subsequently moved to play the entire audiotape of defendant’s statement, including the reference to the armed robbery committed by defendant. After conferring with IDB counsel, defendant made the appropriate objections as |14to relevance, lack of notice, and no Prieur hearing. After hearing arguments, the trial judge overruled defendant’s objection and denied the motion to suppress statement.

Defendant’s IDB counsel then argued that there was evidence that should be suppressed, namely the gun. The prosecutor remarked that there had already been a suppression hearing during the armed robbery trial regarding the gun, but he would argue the motion again if necessary. The prosecutor added that if it was admissible at the last trial, it would be admissible at this trial. The trial judge said that it was not necessary for him to hear the motion again. Defendant’s IDB counsel argued that they were trying a different crime at this time, that the two crimes were separate, and that what was admissible at one trial might not be admissible at this trial. The prosecutor responded that evidence regarding the recovery of the gun had not changed and, therefore, evidence of such was admissible. After hearing arguments of counsel, the trial judge overruled the objection.

In light of the foregoing, we find that defendant knowingly and intelligently waived his right to counsel at the suppression hearing. Therefore, the trial court did not abuse its discretion in allowing defendant to represent himself at the suppression hearing with assistance of IDB counsel.

By his next assignment, defendant argues that the trial court erred by admitting into evidence his audiotaped statement which included reference to the armed robbery for which he was previously convicted. He contends that the trial court permitted the evidence to be heard by the jury without requiring the state to comply with notice requirements, and without requiring the state to show some | ^independent probative value for the evidence. Defendant asserts that the trial court’s error in admitting the evidence was not harmless on the basis that it was cumulative, as he would not have testified had the trial court allowed him a continuance to secure the presence of a witness.

The State responds that the evidence was admissible without prior notice to the defense because it constituted an integral part of the crime, and because it explained the sequence of events leading to defendant’s arrest. The State further responds that the evidence was cumulative.

After the trial judge denied defendant’s motion to suppress identification, the State noted that it intended to play the entire audiotape of defendant’s statement without redacting anything, including the references to the armed robbery defendant committed and for which he was convicted prior to the instant trial. The State indicated that there was no surprise as to the contents of that tape, and that both crimes occurred within a short period of time of one another. The State further indicated that it was going to introduce the clothes and the gun recovered from the stolen vehicle.

Defendant’s IDB counsel asked the trial judge to allow him to explain to defendant what was happening. After he did so, defendant objected. The trial judge responded that they had already had a trial, which would be similar to a Prieur hearing. He said that he was going to go ahead and allow the tape to be played considering the close space in time between the two crimes, and because the evidence would have been allowed had there been a Prieur hearing. Defendant countered that the armed robbery was a separate crime, that the State did not give him notice they were going to admit evidence of that crime, and that no Prieur hearing had been held.

| ifjThe trial judge informed defendant that he already had notice because he had been convicted of the armed robbery. Defendant said he did not see the relevance, again arguing that these were two separate incidents occurring in separate places. The trial judge overruled his objection and allowed the statement to be played in its entirety. Defendant noted his objection. The trial judge then denied the motion to suppress statement.

Evidence of other crimes, wrongs or acts may be introduced when it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” LSA-C.E. art. 404(B)(1). A close connexity between the charged and uncharged conduct is required to ensure that “ ‘the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Noten, 01-1818 (La.6/25/01), 791 So.2d 607, 609 (per cu-riam), internal citations omitted. Evidence that constitutes an integral part of the crime is admissible without prior notice to the defense. State v. Charles, 00-1586 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708.

The test for integral act (res ges-tae ) evidence is therefore not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the state’s case of narrative momentum and cohesiveness, “ ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, 1076, quoting Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). Accord, State v. Taylor, 01-1638 (La.14/03), 838 So.2d 729, 741-742, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

In a similar case, State v. Edwards, 406 So.2d 1331, 1350-1351 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982), defendant, who was convicted of first degree murder, argued that the trial judge improperly admitted evidence of other crimes attributable to him. In that case, the testimony indicated that defendant and another accomplice arrived at a third person’s house, and that defendant suggested they “go make a hit.” They first went to a grocery store where defendant stole some wine, and then they ultimately went to the victim’s house, killed her, and sped away from the scene in the victim’s automobile. The testimony also indicated that they subsequently followed another woman to a college campus in an attempt to snatch her purse but abandoned the plan when she saw them coming. Afterwards, they went to a convenience store looking for still another “hustle” until the appearance of a police officer terminated the night’s activities. The Louisiana Supreme Court found that the other crimes evidence was properly admitted under the res gestae exception, noting that the sequence of events formed “one continuous transaction” with the crime for which defendant was being tried. Id. at 1351.

In the instant case, we find that the armed robbery incident was admissible without prior notice because it constituted an integral part Of the crime that is the subject of the present proceeding. The record indicates that there was a close temporal connection between the two incidents. Defendant shot the victim, went to a “crack house” to smoke crack cocaine, then stole a woman’s vehicle to escape the area when he heard that people were saying that he had killed the victim. Additionally, the weapon used in the shooting was recovered from the stolen [^vehicle. Further, the evidence was cumulative, as defendant testified that he was serving a 99-year sentence for the armed robbery incident.

However, even if the trial court erred in allowing evidence of the armed robbery, the introduction of inadmissible other crimes evidence is subject to a harmless error analysis. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 980. An error is harmless when the verdict is “surely unattributable to the error.” State v. Johnson, supra, at 102.

We conclude that the verdict was “surely unattributable to the error,” as there was ample other evidence to convict defendant of second degree murder. Robert McCrory testified that he observed defendant shooting a gun into the ground, but that he could not see what defendant was shooting at because the weeds were too high. Afterwards, McCrory ■ saw defendant turn around to see if anybody was looking, then put on a mask and run away. When McCrory went outside, he saw a man lying on the ground. Defendant admitted at trial that he and the victim got into an argument, and that he shot a gun into the ground. Defendant also testified that he did not remember whether he killed the victim. Additionally, one of the guns used in the shooting was recovered from the vehicle defendant stole to escape the area after the shooting.

In light of the foregoing, we find that the trial court did not err by admitting the entire audiotaped statement of defendant into evidence. This assignment is without merit.

Defendant next argues that the trial court erred by denying his oral motion for a continuance to secure the presence of a material witness. He contends that |1flthe trial court’s ruling forced him to testify on his own behalf, a strategy he would not have otherwise chosen. The State responds that the trial court did not abuse its discretion in denying the motion, noting that defendant did not satisfy the criteria set forth in LSA-C.Cr.P. art. 709.

On January 17, 2007, after the State rested its case, defense counsel informed the trial judge that his witness, defendant’s sister, would not be available until the next day. He also informed the trial judge that he wanted to keep Det. Gorum-ba on call. The trial judge asked defense counsel what time his witnesses would be there, and defense counsel responded that if they were going to come, they would be there for 9:00 or 9:30 a.m.

Defense counsel indicated that defendant’s sister was coming by train from the west coast, and that she had left on Sunday. The trial judge noted that that trip would take three days. Defense counsel responded that she should be there today, that she was supposed to call when she got in, but that he had not heard from her. An unrecorded off-the-record bench conference was held, after which the trial judge informed the jury that they would have to return the next day to hear testimony from two additional witnesses. The minute entry indicates that court was adjourned at approximately 4:30 p.m.

On January 18, 2007, at approximately 10:00 a.m., the second day of trial, a bench conference was held. Defense counsel asked that the trial be continued until that afternoon, as defendant’s sister was somewhere between Gretna and Chicago on a train. Defense counsel explained that the witness had no control over when she got there since she was coming by train. When the trial judge asked defense counsel whether he had any other witnesses, defense counsel responded negatively, remarking that defendant was going to have to testify since his sister was not there.

__|¿¡jThe trial judge inquired as to whether defendant’s sister was a fact witness, and defense counsel stated that she was going to testify as to defendant’s drug problem. The trial judge said that if defendant was going to testify, that he could cover that area. Defense counsel explained that if defendant’s sister was there, defendant might not have to take the stand. He noted that he had heard from defendant’s sister yesterday, that she was in Chicago at that time, and that she was supposed to have gotten into town at approximately 4:00 or 5:00 a.m. The trial judge denied defense counsel’s motion, saying that defendant’s sister would have had “plenty enough time” to get there if she were coming. Defense counsel noted his objection.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution (1974) guarantee a criminal defendant the right to compulsory process and to present a defense. A defendant’s right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Gordon, 01-734 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 148, writs denied, 2002-0362 (La.12/19/02), 833 So.2d 336 and 2002-0209 (La.2/14/03), 836 So.2d 134.

LSA-C.Cr.P. art. 708 defines continuance and recess as follows:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

Pursuant to LSA-C.Cr.P. art. 709, a defendant must state the following in order to be entitled to a continuance for securing the presence of a witness:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
I ai (3) Facts showing due diligence used in an effort to procure attendance of the witness.

A motion for recess is evaluated by the same standards as a motion for a continuance. State v. Warren, 437 So.2d 886, 838 (La.1983); State v. Rodriguez, 02-334 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061. The decision to grant a recess lies within the discretion of the trial court and will not be overturned absent an abuse of that discretion. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 877, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Stevenson, 02-0079 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 345.

In the instant case, it is initially noted that the trial judge did, in fact, adjourn the proceedings after defense counsel said that his witness would not be available until the next day, if she was going to come. Thus, defense counsel was given additional time to locate his witness and bring her to court. Apparently, defendant is arguing in his brief that the trial judge erred by denying his request for a recess when his witness failed to appear the next day.

The record shows that defendant did not satisfy the requirements of LSA-C.Cr.P. art. 709. Although defense counsel informed the trial judge that defendant’s sister was going to testify as to defendant’s drug problem, the trial judge apparently thought that such testimony was either not material or unnecessary. As the State noted in its brief, there is no evidence such testimony would have been relevant or permitted. Defendant also failed to state facts and circumstances showing a probability that the witness would be available at the time to which the trial was deferred. The witness allegedly left the west coast on Sunday, January 14th and still had not arrived in court by the morning of Thursday, January 18th. As the trial court correctly noted, the witness had enough time to |aacome to court had she so desired. Additionally, we find that defendant failed to use due diligence in an effort to procure the attendance of the witness, as there was no evidence presented at trial that defense counsel attempted to subpoena the witness.

Finally, defendant has failed to show that he was prejudiced by the failure of the witness to testify. The witness’s testimony was not relevant to defendant’s guilt or innocence, and the record reflects that defendant testified regarding his drug problem. Also, there is no evidence that defendant would not have testified had his sister done so.

In light of the foregoing, we find that the trial court did not abuse its discretion in denying defendant’s motion for a recess to secure the presence of a witness.

By his final assignment of error, defendant argues that the trial court erred by sentencing him immediately after denying his motion for new trial without first securing a waiver of the 24-hour statutory delay. The State responds that defendant impliedly waived the delay when he told the trial judge that he was ready for sentencing.

The record shows that defendant did not expressly state that he was waiving the 24-hour delay period required by LSA-C.Cr.P. art. 873. However, when the trial court asked defense counsel if he was ready for sentencing, defense counsel affirmatively answered, “Ready for sentencing, Your Honor.” This was an implied waiver of the delay. See State v. Ferrell, 94-702 (La.App. 5 Cir. 5/30/95), 656 So.2d 739, 745, writ denied, 95-2360 (La.4/18/97), 692 So.2d 433. The trial court did not err in sentencing defendant.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent in this case.

The trial judge did not advise defendant of the prescriptive period for post-conviction relief as provided in LSA-C.Cr.P. art. 930.8. Therefore, we remand this matter to the trial court to properly inform defendant of the prescriptive period by sending defendant written notice within ten days of the rendition of the opinion and to file written proof in the record that defendant received such notice. State v. Knight, 01-881 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 951.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . Defendant was also charged with armed robbery in the same indictment. The State noted in its brief that the armed robbery and second degree murder charges were severed. On August 1, 2006, a jury found defendant guilty as charged of armed robbery. (07-KA-123). It is noted that this Court affirmed that conviction and sentence. State v. LaGarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105.

      . The State mentions in its brief that the appellate record is incomplete because it fails to contain pre-trial pleadings and minute entries. However, it is noted that that information is contained in the record pertaining to defendant’s prior conviction for armed robbery, 07-KA-123, which has been made part of the present record.

      . Sgt. Dyess testified that "Egg” was the nickname of the victim, Brian Scott.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . It is noted that no written motion requesting that defendant be allowed to represent himself could be found in either this record or the record involving defendant's armed robbery conviction (07-KA-123).

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . See Assignment of Error Number Two for a more detailed discussion of the exchange among the trial judge, defendant, and IDB counsel.

      . It is noted that defendant's motion for a continuance should have been styled "motion for recess” since trial had already begun. See LSA-C.Cr.P. art. 708, infra. It is also noted that defendant in his brief cites to Louisiana Code of Civil Procedure articles 1601 and 1602 to support his contention that the continuance should have been granted. However, those articles and the case law cited along with those articles involve civil cases, not criminal, and, therefore, are inapplicable to the instant case.

      . Art. 873. Delay between conviction and sentence
      If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.