author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Gardener TAYLOR.
    No. 06-KA-558.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Ken J. Dohre, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

li>0n January 6, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Gardener Taylor, with possession with intent to distribute marijuana within one thousand feet of a school, a violation of LSA-R.S. 40:981.3. Defendant was arraigned on January 8, 2004, and pled not guilty.

On January 15, 2004, defense counsel filed omnibus pre-trial motions, including a motion to suppress evidence. Defendant filed a pro se Motion to Suppress the Evidence on March 19, 2004, raising issues raised in the counseled motion. The trial court heard and denied the suppression motions on March 25, 2004. Defendant applied for writs to this Court from the trial court’s ruling. State v. Gardner Taylor, Writ No. 04-K-401. On April 12, 2004, this Court denied writs, stating: “On the showing made we see no reason to exercise our supervisory [ ¡Jurisdiction.” Defendant applied for writs to the Louisiana Supreme Court, challenging this Court’s ruling, and the supreme court denied writs. State v. Taylor, 04-0970 (La.6/4/04), 876 So.2d 76.

Defendant was tried by a twelve-person jury on August 11, 2004. The jury returned a unanimous verdict of guilty as charged.

Defendant filed a motion for new trial on August 13, 2004. The trial court heard and denied the motion on September 10, 2004. Defendant waived sentencing delays, and the trial court sentenced him that day to seven years at hard labor, to be served concurrently with any other sentences he was serving.

The State filed a habitual offender bill of information alleging defendant to be a second felony offender. On September 24, 2004, defendant was advised of the allegations in the habitual offender bill, and he denied them.

On April 29, 2005, defendant admitted to the allegations in the habitual offender bill, and the trial court found him to be a second felony offender. The court then vacated defendant’s original sentence and, citing State v. Dorthey, 623 So.2d 1276 (La.1993), imposed a habitual offénder sentence of twelve years at hard labor without benefit of probation or suspension of sentence. The court further ordered that the sentence be served concurrently with any other sentences defendant is serving, and with any sentences resulting from a parole revocation.

Defendant filed a timely pro se motion for appeal on May 9, 2005. The trial court granted the motion on June 1, 2005.

FACTS

Officer Timothy Carman of the Gretna Police Department testified at trial that on the afternoon of December 1, 2003, he was dispatched to the 700 block of Governor Hall Street on a criminal complaint. The officer was dressed in uniform and was driving a marked police car. When he approached the said location, 14Officer Car-man saw defendant sitting on the open tailgate of a gray truck, eating crabs.

Carman testified that, based on the complaint he received, he approached defendant on foot and introduced himself. Defendant appeared extremely nervous. He was fidgety and avoided eye contact with the officer. Carman asked defendant if he was from that neighborhood, and defendant said he was not. Moreover, defendant could not give Carman the name or address of anyone he was visiting in the area. The officer asked defendant for his identification, and defendant gave it to him. Carman then ran defendant’s personal information on the police computer to determine whether defendant had any outstanding warrants.

Carman testified that defendant continued to display nervous behavior, and the officer began to fear for his own safety. He asked defendant to put his hands on the truck’s tailgate so he could conduct a patdown search of defendant’s outer clothing for weapons., Defendant then reached for his left pants pocket. Fearing defendant was reaching for a weapon, the officer grabbed his hand and handcuffed him. Carman conducted a patdown search and felt a large lump in defendant’s left pants pocket. To the trained officer, the lump felt like several small packages of a controlled dangerous substance.

Carman testified that he pulled out of defendant’s pocket seven small plastic bags containing a green/brown vegetable substance which he believed was marijuana. On the outside of the bags was a Starship Enterprise logo, as seen on the television series Star Trek. Carman told defendant he was under arrest, and advised him of his Miranda rights. The officer then conducted a search of defendant’s person incident to arrest.

| sAfter learning from the police computer that the truck was registered to defendant, Carman asked him if he would consent to a vehicle search. Defendant replied, “I ain’t got nothing but peanuts and candy apples in there.” The officer asked again whether he could search the truck, and defendant said, “Yeah, you can search it.”

Sergeant Jim Price testified he arrived at the scene after defendant was placed in handcuffs. Officer Carman told Price he had obtained defendant’s consent to search the truck. Price then searched the passenger area of the vehicle and. retrieved from the back seat two plastic popcorn bags and a plastic peanut bag which held a total of 29 smaller plastic bags containing what he believed to be marijuana. Price gave the evidence to Carman, who was responsible for transporting it to the police department. Price identified State’s Exhibit 2 as three plastic bags of marijuana, bearing the Starship Enterprise Logo, that he recovered from the truck.' He identified State’s Exhibit 3 as a peanut bag that contained the three bags in State’s Exhibit 2. State’s Exhibit 4 was a group of 11 bags of marijuana Price found in the truck. State’s Exhibit 5 was a popcorn bag that held the 11 smaller bags in Exhibit 4. State’s Exhibit 6 was a.group of 15 plastic bags of marijuana. State’s Exhibit 7 was a popcorn bag that held the 15 bags in State’s Exhibit 6.

Officer Carman testified that Gretna No. 2 Elementary School is located in the 700 block of Amelia Street. The officer said one can clearly see the school grounds from where defendant was standing. Car-man measured the distance between where defendant was to the nearest part of the school grounds. He used a “measure master,” a wheeled instrument that counts distance as it is rolled along the ground. The distance measured 394 feet.

| ^Daniel Waguespaek of the Jefferson Parish Crime Lab, was accepted by the trial court as an expert in the field of forensic science. Waguespack testified that he examined and tested representative samples of the vegetative material from State’s Exhibits 1, 2, 4, and 6. All of the samples tested positive for marijuana. Waguespack included his findings in a lab report. He testified that the net weight of the marijuana in State’s Exhibits 1, 2, 4, and 6 was 57.6 grams.

The State introduced the testimony of Lieutenant Bruce Harrison, whom the trial court accepted as an expert in the packaging, distribution, and value of controlled dangerous substances. Harrison testified he was not involved in the investigation of the instant offense, but he had reviewed the police incident report.

According to Harrison, the three most important factors in distinguishing between simple possession and possession with intent to distribute narcotics are quantity, packaging, and value. In his opinion, the quantity, packaging, and value of the marijuana seized in this case were consistent with distribution rather than simple possession.

Harrison first explained that, as is true in any trade, it is more expensive to buy marijuana in small quantities than to buy it in large amounts. Harrison noted that the 56 grams of marijuana in this case was packaged in a total of 36 bags. To buy those individual bags for personal use would cost about $230, whereas 56 grams of marijuana that is not broken down into smaller quantities would cost about $140-160. If a user bought such a large quantity of marijuana that was not broken down, he would not typically divide it into smaller bags, as was done here. He would simply take some out of the large package as he used it.

Harrison noted that all of the small bags of marijuana bore the same Starship Enterprise logo. He said the bags all likely came from the same source, explaining that a distinctive logo is a way in which a dealer identifies his product.

l7Harrison felt the quantity of marijuana in this case was too large to indicate personal use. To use even five to ten grams of marijuana in a day, a user would have to smoke a cigarette every waking hour. Moreover, if someone had marijuana for his own use, Harrison would expect to see user paraphernalia, such as cigarette rolling papers. No such paraphernalia, was recovered in this case.

Harrison further testified to the fact that defendant did not have a large amount of money when he was arrested was not necessarily an indication that he was not selling marijuana. Sometimes a seller will have a lot of money on his person when he is apprehended, but it is more common for a seller not to carry much money. In defendant’s case, his money might have been at his house, or he might have just started selling when Detective Carman stopped him.

Isaac Williams was the only witness for the defense. He testified that on December 1, 2003, he was living at 721 Governor Hall Street, Apartment 1. Williams knows defendant, who grew up in Gretna. He saw defendant pull up in front of his residence at about 1:00 p.m. Defendant sat on the back of his truck eating seafood for 15-20 minutes before police arrived. During that time Williams did not see anyone approach defendant. Williams testified that he chose not to get involved in the incident when police arrived.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to grant the defense’s motion to suppress the evidence because the evidence was illegally retrieved.

DISCUSSION

By this assignment, defendant contends Detective Carman did not have reasonable suspicion to conduct an investigatory stop, nor did he have probable cause for an arrest. Therefore, defendant argues, any evidence seized pursuant to the stop and/or the subsequent arrest was suppressible.

|sThe State responds that Carman had reasonable suspicion to stop defendant because defendant met the description given by an anonymous caller of a man selling narcotics to school aged children in that area. The State further argues the officer legally seized the marijuana in defendant’s pocket during a pat-down frisk, under the “plain feel” exception to the warrant requirement. As regards the marijuana found in defendant’s truck, the State maintains it was legally seized pursuant to a valid consent search.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures., Warrantless searches and seizures are unreasonable per se unless justified by one of the exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, 335-336. The State bears the burden of proving the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703 D; State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765. A trial court is afforded great discretion in ruling .on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion, State v. Leonard, 945 So.2d at 765-766. In determining whether the ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the hearing on the motion to suppress, but may also consider pertinent evidence given at trial. State v. Higgins, 01-368 (La.App. 5 Cir. 10/17/01), 800 So.2d 918, 921, writ denied, 01-3267 (La.11/1/02), 828 So.2d 565, cert. denied, 538 U.S. 1038, 123 S.Ct. 2082, 155 L.Ed.2d 1070 (2003). '

At the suppression hearing, Officer Car-man testified he was with the Gretna Police Department from May, 1995 through September, 1998. He returned to the department in August, 2003. In the interim, he was an embassy guard with the United States Marines Corps, and he worked for a time as .a narcotics detection dog 19handler with the United States Border Patrol. He was also a special agent in the United States Customs Department’s high intensity drug trafficking unit.

Officer Carman testified that on December 1, 2003, he was dispatched to the 700 block of Governor Hall Street based on a 9-1-1 call regarding a black man sitting on a gray pickup truck and selling narcotics to children. The officer said narcotics arrests are common in that area. When Carman arrived at the designated place, he saw a gray Dodge truck parked on the street. Defendant, a black man, was sitting on the truck’s open tailgate eating crabs. Carman stopped his police unit and approached defendant on foot. He introduced himself and asked defendant for his identification. Defendant gave Carman his identification, and the officer called in defendant’s personal information to determine if he had any outstanding warrants. Carman testified defendant was still free to leave at that point.

Carman asked defendant whether he was from that area. Defendant replied he was from New Orleans, and that he was. in the neighborhood visiting. When the officer asked him which house he was visiting, defendant pointed to a residence. But he was unable to tell Carman who lived there.

Carman testified that while he was speaking to defendant, defendant appeared nervous, and his hands shook badly. Defendant would not make eye contact with him. Carman decided, for his own safety, to conduct a pat-down search of defendant’s outer clothing for weapons. Car-man was investigating alleged drug activity, and based on his experience as a police officer, he knows drugs and weapons often go hand-in-hand.

The officer instructed defendant to turn around and place his hands on the truck’s tailgate. As defendánt turned to comply with the order, he moved his hand toward his left pants pocket. Fearing defendant might be reaching for a weapon, | mCarman grabbed his hand, and placed him in handcuffs. Carman testified that he patted down defendant’s outer clothing. When he got to defendant’s left pants pocket, Car-man felt what he believed — based on his police experience — were “baggies” of narcotics. The officer reached into defendant’s pocket and retrieved seven small glassine bags containing what appeared to be marijuana. At that point he placed defendant under arrest.

Carman testified he advised defendant of his rights, and asked him for permission to search his truck. Defendant gave his consent to search, commenting that there was nothing inside the vehicle except peanuts and candy apples. Sergeant Price, who had arrived at the scene, searched the truck and found bags containing marijuana.

On cross-examination, Carman testified he spoke to a woman at the scene after he arrested defendant. She said defendant was frequently in the area eating crabs, and that he did not sell drugs.

Defendant testified on his own behalf at the suppression hearing. He stated he was simply eating crabs when the officer stopped him. He was not selling marijuana, nor was he committing any other crime. He was on Governor Hall Street to visit a woman named Rena. Defendant testified that Rena told the officer he visited that neighborhood all the time.

Defendant said the only time he went into his pocket was when he took out his driver’s license and gave it to the officer. He admitted to having four bags of marijuana in his pocket; not seven, as the officer claimed. He did not give the officers his permission to search his truck. Moreover, there was no marijuana in the vehicle. In denying defendant’s suppression motion, the trial judge reasoned:

Okay. The court finds, based on the totality of the circumstances, including the 911 call, the notice that it was a high-drug area, the responses, that the police officer had a h reasonable suspicion, that he could stop and talk to the defendant, that the remainder of the circumstances, including the defendant’s actions, answers to the questions about why he was there and who he was there to visit, which were vague and did,not know which house he was supposed to go to, the nervousness, the failure to keep eye contact alerted the officer that he could talk to him with a pat down of his outer garments, and the defendant’s thrusting his hand into his left pocket were reasonable for the officer to then search that pocket for any weapon, which then he could legally obtain the contraband. And, consequently, I believe that the search or the evidence obtained was not unconstitutionally obtained.

The right of law enforcement officers to stop and interrogate those reasonably suspected of criminal activity is recognized by state and federal jurisprudence, and is codified in LSA-C.Cr.P. art. 215.1. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1988), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion is something less than probable cause to arrest, and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement.of the individual’s right to be free from government interference. State v. Chauvin, 06-362 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 757-758. A police officer must be able to articulate specific facts upon which his suspicion is based. Id., 945 So.2d at 758.

The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049. An officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may 11?support reasonable suspicion of an investigatory stop. State v. Atkins, 05-823 (La.App. 5 Cir. 3/14/06), 926 So.2d 591, 596.

In the instant case, the officer was dispatched to Governor Hall Street based on an anonymous 9-1-1 call. Under certain circumstances, an anonymous tip can provide reasonable suspicion to detain and question a person. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Smith, 00-1838 (La.5/25/01), 785 So.2d 815 (per curiam). Generally, an informant’s tip must contain predictive information regarding the future behavior of the reported suspect, and the tip must be corroborated. Alabama v. White, supra; State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, 1270. Defendant argues the 9-1-1 call in this case did not provide a sufficient basis for reasonable suspicion, since the officer did not observe any behavior on his part to corroborate the anonymous tipster’s allegations.

It is true that Officer Carman did not see defendant engage in any illegal activity prior to stopping him. But police officers have the authority to stop someone in a public place, if they reasonably suspect that person is about to commit an offense, even though no illegal activity has yet taken place. State v. Jackson, 02-146 (La.App. 5 Cir. 5/29/02), 820 So.2d 1147, 1151. Officer Carman testified defendant and his vehicle fit the description given by the 9-1-1 caller. Even though Carman only saw defendant eating crabs, the officer was free to approach defendant and engage him in conversation.

While an individual’s mere presence in a high crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high crime area coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of an officer, gives rise to reasonable suspicion for an investigatory stop. State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 97. The street |1swhere defendant was parked was known to Officer Carman as a drug trafficking area. That, together with the 9-1-1 complaint, defendant’s nervous behavior when approached by the officer, and the. ambiguity of defendant’s answers when he was questioned about what he was doing there, was sufficient to support reasonable suspicion for an investigatory stop.

An officer who has stopped a person for questioning may conduct a limited frisk of that person’s outer clothing where circumstances are such that a reasonably prudent man would be warranted in the belief that his safety or that of others was in danger, LSA-C.Cr.P. art. 215.1 B; State v. Keller, 403 So.2d 693, 697 (La.1981); State v. Martinez, 04-38 (La.App. 5 Cir. 4/27/04), 874 So.2d 272, 277. Defendant argues Officer Carman was not justified in conducting a pat-down frisk of his clothing because he had no reason to fear for his safety. On the contrary, Carman was justified in his suspicion that defendant might be armed based on the fact that he suspected defendant of drug activity, and the officer knew from experience that drugs and weapons often go together. State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1288-1289. Carman’s safety concerns escalated when defendant attempted to reach for his pants pocket. The officer’s pat-down frisk fell within the scope of the investigatory stop.

If, in the course of an Article 215.1 weapons frisk, an officer feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize it under the' “plain feel” exception to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993); State v. Broussard, 816 So.2d at 1289. Carman’s testimony shows he is an experienced police officer who has made hundreds of narcotics arrests. Carman stated that when he patted defendant’s pocket, he felt several objects that he believed, based on his law enforcement training and experience, were baggies |14of marijuana. We find that the officer’s seizure of marijuana from defendant’s pocket was valid under the “plain feel” exception. Once Carman found the marijuana in defendant’s pocket, he had probable cause to arrest defendant.

The officers were authorized to search the truck based on defendant’s voluntary consent. See, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). The burden is on the state to prove the consent was given freely and voluntarily. Officer Carman testified both at the suppression hearing and at trial that defendant gave his voluntary consent to search his truck.

Even if, as defendant testified, he did not consent to the search, the officers were authorized to search the vehicle incident to the valid warrantless arrest. The police may search the passenger compartment of an automobile in a search incident to the arrest when the automobile’s occupant is arrested. State v. Becnel, 04-1266 (La.App. 5 Cir. 5/31/05), 904 So.2d 838, 853. This exception applies whether the individual remains in the vehicle or is removed by the police. Thornton v. United States, 541 U.S. 615, 621, 124 S.Ct. 2127, 2131, 158 L.Ed.2d 905 (2004).

Based on the foregoing, we fail to find that the trial court abused its discretion in denying defendant’s suppression motion. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred in denying • the defenses Batson challenges during jury selection.

J¿¿DISCUSSION

Defendant contends the trial court erred in failing to sustain his Batson challenges, arguing the State systematically used its peremptory strikes to exclude African-Americans from the jury. Defendant points out the State excused five African-American prospective jurors, leaving only one to serve on the jury. Defendant presents arguments as to only three of the excluded jurors: Manuel Stamand, Rita Emmanuel, and Shannon Green. The State argues that prosecutors provided race-neutral reasons for striking those jurors, and that the trial court did not err in denying defendant’s Batson challenges.

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination on the basis of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson the United States Supreme Court established a three-step analysis to be applied when addressing a claim that peremptory challenges of a prospective juror were based on race. The Supreme Court subsequently restated and employed the three-part test in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), and Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).

In State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 600, the Louisiana Supreme Court, quoting Collins, 126 S.Ct. at 974, set forth the reviewing process for a Batson claim:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U.S., at 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id., at 97-98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Although the prosecutor must present a comprehensible reason, “[t]he second Instep of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331-2332, 162 L.Ed.2d 196 (2005). This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834.

In State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, 319, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), the supreme court discussed the important part the trial court plays in the jury selection process:

The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire persons, the nuances' of questions asked, the racial composition of the venire, and the ■general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. As a result, the trial court’s evaluation of discriminatory intent is entitled to great deference by reviewing courts, (citations omitted).

The prospective jurors identified in the record as African-Americans are Addie Jenkins, Fred Savage, Jr., Larry Haw, Jr., Colonel White, Manuel Stamand, Shannon Green, and Rita Emmanuel. Jenkins was excused by the trial court for cause without defense objection. Mr. Haw was among the six members of the first voir dire panel who were seated on the jury. He was ultimately the only African-American who served on the jury.

The State used a peremptory challenge to excuse Fred Savage from the second panel of prospective jurors. Defense counsel did not object to the peremptory challenge, but noted for the record that Savage is African-American. When the State excused Colonel White from the second panel, defense counsel 117said, “I’m going to object. He’s an African American male. He answered everything properly.” The prosecutor responded, “No. He has a son in jail for drugs who’s innocent.” Defense counsel countered, “But he said he could be fair and would disregard that.” The trial judge did not comment or rule on defendant’s objection.

Manuel Stamand was included in the third voir dire panel. He stated he works as a combination fitter with Northrop Grumman. He is unmarried, and has three daughters. He said he has never served on a jury before, he has never been convicted of a criminal offense, and he has no friends or relatives in law enforcement.

When the State excused Mr. Stamand, defense counsel objected, and moved the court to require a race-neutral reason. The judge responded, “All right. This is the third out of four African Americans, so all right. I’m going to ask for a reason.” The following exchange ensued:

Mr. Dohre [prosecutor]:
Mr. Stamand? He shook his head twice during the voir dire. And I put, in relations to when Mr. Netterville [defense counsel] asked him about — when Netterville gave the example of if a man confessed that, yeah, I was going to sell this marijuana, then that would be evidence of possession with intent to distribute marijuana. That was the one time. Well, sir, we don’t have such a thing in this case; he was shaking his head like that’s what he needed.
Two, the other time he shook his head was when Mr. Netterville was giving the example of what a lot of marijuana could be, and when he said, when he was talking about the difference between— and I don’t have the exact amount — but he was talking about the difference between a small amount and a large amount, it was when he said the large amount that he started shaking his head, not related to the small amount.
In this particular case, it’s not a situation where there’s pounds of marijuana. And that’s what he was shaking his head to. In this particular case, it’s more of the packaging and more of the marijuana was kept and the paraphernalia issues, but it’s not pounds of marijuana, and that’s when he was shaking his head too. For those two reasons, I don’t have a confession in this case, which |1Ris one — the first time he shook his head; and the other time was when he was talking about pounds of marijuana indicative of what weight it would be.
Mr. Netterville [defense counsel]:
Judge, both of those examples I used were made to go to extremes so that people would agree so he would understand what the law is. And Mr. Sta-mand was not the only person shaking his head in an affirm demeanor. Other people were agreeing with me, because that’s the way it was set up, but — to make an illustration.
I’m just saying, judge, there’s no really reason to cut this man. I know there’s been studies and stuff about whether or not the district attorney’s office cuts more African Americans disproportion-mg them, they might be. But if they did the same study they show on the defense attorneys probably — I don’t know why people disproportion the blacks, but he (sic) point is it’s up to the courts to enforce that. I’ll never blame the DAs office for what they’re doing, but the courts need to enforce it. And you’re in a court has to enforce it, and the only way for it to enforce it is say, well, no, he’s going to be on the jury. He’s a black man and he’s going to be on the jury. It’s — I’m not persuaded that that’s strong enough to cut him off, so we’re going to put him on the jury. And until that happens, we’re going to have this proportion of white jurors.
The Court:
All right. I understand that I’m the gatekeeper, but it’s not strong enough to keep him off or strong enough to keep him on. It’s not — the later standard is that they can give any articluable reason, and that’s the way which — goes a long way from when Batson started out, the latest cases, articulable reason, whether they are great reasons or not so great reasons. It’s an articulable reason, so it’s the motion of a Batson is denied.
Mr. Netterville:
We’d not our objection.

There were ten seated jurors when the fourth panel of prospective jurors was called. That panel included Shannon Green and Rita Emmanuel. Ms. Green stated she lives in Westwego. She is unmarried, and has no children. She is employed by the Jefferson Parish School Board as a parent educator. She has no friends or relatives who work in law enforcement. Green said she has cousins who have been liaconvicted of drug charges, but that would not affect her ability to give the State a fair trial.

When the prosecutor asked whether any of the prospective jurors had a problem with the fact that the law imposed a greater punishment on those who were in possession of narcotics within 1,000 feet of a school, Ms. Green raised her hand. She said she would take such an offense seriously because she worked for the school board.

When the prosecutor excused Ms. Green, defense counsel made a Batson challenge. He argued that the State used four of its first six peremptory challenges to strike African-Americans. The judge asked the prosecutor for a race-neutral reason. The prosecutor gave as his reason for cutting Green that her cousins were convicted of drug charges. Defense counsel countered that Green said she would be tough on drugs near a school because she worked for the school board. The judge ruled, “[A] relative convicted on a charge is an articulable reason, which has been allowed by the court, so that objection is denied.”

Ms. Emmanuel stated she is unmarried and has one daughter and one grandson. She is employed by Bank of Louisiana as a customer service representative. Her daughter is a deputy criminal sheriff in Orleans Parish, but she .can still be fair to both the State and the defense. She said her younger brother has a drug problem, but that she can still be a fair juror. .

When the prosecutor asked whether anyone on the panel would need testimony from a witness other than police officers in order to convict, Ms. Emmanuel raised her hand. She said that considering where the incident occurred, “it seems like some other citizens would be seen or there would be somebody that could say something other than just the arresting officers.” After further discussion of the issue, the prosecutor asked Ms. Emmanuel, “Would you still think that there |anshould be police— more than just police officers who can testify?” She responded, “Por the charge that you have, yes.”

When the prosecutor excused Ms. Emmanuel, the following discussion took place:

The Court:
All right, now, this is—
Mr. Dohre:
Judge, she’s the one who does say that she would require more than police officer testimony, and given the situation that it occurred within a school. I don’t have no other but police officer testimony. She said that. That’s what she thought. That goes directly against my case.
Mr. Netterville:
What she said was that that would be an important facet of the case, as to whether or not somebody else saw him selling drugs from the area. Her daughter — and anyway, she said she couldn’t — said nothing about she could not be fair. Her daughter is a New Orleans criminal [sic] Sheriffs Deputy, Judge.
So now we’ve got the State — 1, 2, 3, 4, 5, 6 — now it’s six African Americans that has come in front of it. The State has used five of six challenges to cut those people. And Judge, Batson is never going to be enforced if the trial court doesn’t start enforcing it.
The Court:
No. Don’t — don’t—
Mr. Netterville:
Judge — wait—
The Court:
No. No, don’t — you need- — you—
Mr. Netterville:
The trial court needs to say, Judge, and I’m asking — what I’m asking you to do — I want to make it plain on Record— I’m asking the Court to say, no, sir, I’m putting these people on the jury. Of all the trials I’ve had around here, I’ve only had one judge to do it.
laiThe Court:
And I’m not doing it on this one, because that is — that is the basis for peremptory challenge, the articulable basis, and there was a number of questions about that issue. That’s a very serious issue.
If that was a white juror, and said the same instances and threw them off, there would be no question. It happens to be a black juror. So denied. Next.
Mr. Netterville:
We’d note our objection, Judge.

In considering defendant’s Batson objections, the trial judge did not make explicit findings as to the first step in the three-part analysis. Instead, he immediately asked the prosecutor for race-neutral explanations for the State’s peremptory challenges. When the trial judge does not rule on whether a defendant asserting a Batson challenge met his burden to establish a prima facie case of racial discrimination, but rules on the ultimate question of intentional discrimination after the state offers a race-neutral explanation for the peremptory challenge, the issue of whether the defendant made a prima facie showing becomes moot. State v. Robinson, 04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1124. The question in this case, then, is whether the State’s explanations for its peremptory challenges were in fact race-neutral.

Defendant argues the trial court erred in finding the reasons the State gave for excusing Manuel Stamand, Rita Emmanuel, and Shannon Green were race-neutral. He maintains the State’s reasons were a camouflage for racial bias. The prosecutor gave, as his first reason for striking Mr. Stamand, that Stamand shook his head when defense counsel explained a confession by the defendant was not necessary to prove intent to distribute, as if he did not agree with the law on that point. As his second reason, the prosecutor said Stamand shook his head when defense counsel spoke about the significance of a small amount of marijuana :Inversus a large amount, as if he believed a small amount of marijuana cannot be indicative of intent to distribute.

Defendant argues there is nothing in the record to show Mr. Stamand actually shook his head as the State claimed. But the trial judge, who was in the best position to observe the prospective jurors, accepted the prosecutor’s claim. Furthermore, the State’s reason for exercising a peremptory challenge will qualify as race-neutral. unless a discriminatory intent is inherent in the prosecutor’s explanation. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 956, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In this instance, there is no discernable discriminatory intent in the State’s explanation. LSA-C.Cr.P. art 798(1) lists a juror’s bias against the enforcement of a statute as a basis upon which the State may challenge a juror for causé. It follows, then, that Mr. Stamand’s apparent disagreement with the law in this case was a valid race-neutral reason for excusing him on a peremptory challenge.

The trial court did not err in denying defendant’s Batson challenge as to Ms. Green, whom the State excused because her cousins had been convicted on drug charges. That a venire member’s relative has been incarcerated for a drug offense has been found to be a valid nondiscriminatory basis for exercise of peremptory challenge in a drug prosecution. See, State v. Harrison, 32,643 (La.App. 2 Cir. 10/27/99), 743 So.2d 883, 888, writ denied, 99-3352 (La.6/30/00), 765 So.2d 327.

The trial court did not err in denying defendant’s Batson challenge as to Ms. Emmanuel. The State struck Ms. Emmanuel because she said she would require testimony other than that of a police officer in order to convict, and all of the State’s witnesses were police officers. This is another instance of the juror’s inability to follow the law.

|2,sBased on the foregoing, we fail to find that the trial court erred in denying defendant’s Batson challenges as to prospective jurors Stamand, Green, and Emmanuel. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The Defendant requests an errors patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920 regardless of whether defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record reveals no errors patent which require corrective action.

DECREE

Accordingly, for the reasons assigned herein, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Note that defendant’s first name is alternately spelled "Gardener” and “Gardner” throughout the appeal record, whereas it was spelled "Gardner” in defendant’s pre-trial writ application. At the suppression hearing below, defendant stated that "Gardner” is the correct spelling of his name.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This juror is referred to as “Selvage” or "Salvage” in the trial transcript, and as "Savage” in the minute entry.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge. TOBIAS, J.,

license: Public Domain

text:
    Rosetta IRONS, Rickey Nye, William Watts, Sylvia Van Buren, Rose Thomas & Shannon Thomas, Lynell Clark and Bruno & Bruno, LLP v. US BANK, INC.
    No. 2007-CA-0570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 14, 2007.
    Max Nathan, Jr., Sessions, Fishman & Nathan, L.L.P., and David S. Scalia, Stephen P. Bruno, Bruno & Bruno, New Orleans, LA, for Plaintiff/Appellee.
    Michael H. Rubin, Juston M. O’Brien, Jamie D. Seymour, McGlinchey Stafford, PLLC, Baton Rouge, LA, and Stephen W. Rider, Lisa D. Munyon, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellant.

      Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY.
   PATRICIA RIVET MURRAY, Judge.

13 This is a concursus proceeding. This proceeding was commenced by seven homeowners and their attorney, the law firm of Bruno & Bruno, L.L.P., Inc. (the “Bruno Firm”), against U.S. Bank, Inc., which is the holder of the mortgage on each of the homeowners’ residences and an additional loss payee on each of their insurance policies. The narrow legal issue presented in this proceeding is whether the Bruno Firm’s privilege and interest for its attorney’s fees in the insurance settlement funds it obtained on the homeowners’ behalf is superior to U.S. Bank’s interest as mortgagee-loss payee in such funds. Answering that question in the affirmative, the trial court found the plaintiffs were entitled to summary judgment as a matter of law.- For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2005, the homeowners suffered damages to their residences as a result of Hurricane Katrina. Dissatisfied with the amount of the initial settlement their insurance companies paid to them and to U.S. Bank as an additional loss |2payee, the homeowners retained the Bruno Firm to pursue their claims for increased insurance settlement amounts. In so doing, the homeowners entered into a contingency fee contract with the Bruno Firm whereby the firm would receive 25% of any recovery by the homeowners from their insurers above the initial settlement amounts.

The Bruno Firm successfully obtained increased recoveries from the respective insurers on behalf of each of the homeowners. The insurance companies made the settlement checks payable to the homeowner; U.S. Bank, and the Bruno Firm. Given the ethical mandate that an attorney deposit settlement checks into its escrow account before dispersing the funds, the Bruno Firm requested that U.S. Bank endorse the checks. US Bank refused to do so.

In July 2006, the Bruno Firm and the homeowners commenced the instant con-cursus proceeding pursuant to La. C.C.P. art. 4651. In this proceeding, the plaintiffs sought a determination of the Bruno Firm’s right to withdraw 25% of the amount deposited for each of the plaintiff-homeowners as its attorney’s fee. As noted, the plaintiffs filed a motion for summary judgment. Following a hearing, the trial court granted the plaintiffs’ motion for summary judgment. US Bank then filed a motion for new trial, which was denied. This appeal followed.

DISCUSSION

On appeal, U.S. Bank asserts that the trial court erred in granting summary judgment both procedurally and substantively. Procedurally, it contends that the trial court was mandated to grant its request for a continuance for two reasons: |s(i) the motion for summary judgment was untimely and improperly noticed, and (ii) there was a pending motion to compel discovery that the trial court had not ruled upon. Substantively, it contends that summary judgment was improper because its rights as a mortgagee-loss payee are superior to the Bruno Firm’s privilege for its attorney’s fees.

The timing of the notice of a motion for summary judgment is provided for in La. C.C.P. art. 966(B), which requires that “[t]he motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing.” La. C.C.P. art. 966(B). Although the plaintiffs do not dispute that the timing requirement was not met, they contend that U.S. Bank waived this requirement by appearing in court on the appointed day and arguing the merits of the motion. In support, they cite Strickland v. Board of Sup’rs of Louisiana State University and Agr. and Mechanical College, 432 So.2d 964 (La.App. 4th Cir.1983), and Johnson v. Canale, 00-89 (La.App. 5 Cir. 10/18/00), 769 So.2d 833. They cite these cases for the proposition that the mandatory timing requirement of Article 966(A) can be waived when the circumstances indicate that the opponent acquiesced in the violation of the timing requirement, and the opponent is not prejudiced by that violation. Johnson, 00-89 at p. 7, 769 So.2d at 836 (citing Strickland, supra). We find no error in the trial court’s implicit finding that U.S. Bank was not prejudiced.

US Bank also argues that it was premature to grant summary judgment given its outstanding motion to compel discovery. We disagree. The issue presented by the motion for summary judgment, as the plaintiffs point out, was the purely legal one of whether its attorney’s fee privilege ranks first ahead of U.S. Bank’s interest.

|4The summary judgment procedure is favored in this state and is designed to allow for the just, speedy, and inexpensive resolution of every case. King v. Parish National Bank, 2004-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545; La.C.C.P. art. 966(A)(2). Appellate courts review grants of summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 2000-2456, p. 4 (La.App. 4 Cir.1/10/01), 778 So.2d 668, 670. Under that standard, a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schmidt, 2000-2456 at p. 3, 778 So.2d at 670. A fact is “material” if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Schmidt, 2000-2456 at p. 3, 778 So.2d at 670 (citing Moyles v. Cruz, 96-0307 (La.App. 4 .Cir. 10/16/96), 682 So.2d 326).

As the trial court noted in its reasons for judgment, the pertinent undisputed facts on which the summary judgment motion was based are as follows:

• The homeowners have contingency fee contracts with the Bruno Firm for that firm to seek increased insurance proceeds for their Katrina related property damages.
• The Bruno Firm has succeeded in obtaining increased insurance proceeds from the homeowners’ insurance companies.
• The insurance companies have made the settlement checks payable to the homeowner, U.S. Bank, and the Bruno Firm.
• The Bruno Firm has requested authorization from U.S. Bank to deposit the insurance settlement checks into its escrow account.
Is* US Bank did not participate in connection with the recovery of the funds at issue.

The legal issue on which the trial court granted summary judgment is whether the Bruno Firm’s privilege for its contingency fee in the settlement funds it obtained for the homeowners is superior to U.S. Bank’s interest. The applicable statutory provision that applies to this dispute is La. R.S. 37:218(A), which provides:

By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws.

La. R.S. 37:218(A). The legislative history of this provision was discussed in detail in Calk v. Highland Constr. & Mfg, 376 So.2d 495, 499 (La.1979).

In Calk, supra, the Louisiana Supreme Court addressed a dispute between a personal injury plaintiff, the plaintiffs attorney, and the plaintiffs judgment creditor over the proceeds of. the plaintiffs tort settlement. In finding the attorney’s lien under La. R.S. 37:218 outranked the judgment creditor’s claim under R.S. 13:3864, the Supreme Court reasoned that the legislative intent behind La. R.S. 37:218 was “to assist the attorney in collecting his fee when he settles a case in the same way he is assisted by R.S. 9:5001, when he brings the suit to judgment.” Calk, 376 So.2d at 499. The Court stated that the statute gives the attorney “a privilege to the extent of his earned fee on any recovery obtained by settlement.” Id. The Court further stated that the attorney’s contract need not be recorded for the attorney’s fees claim to succeed; “however, for the attorney to ^succeed he must assert his claim by intervention or other legal proceedings prior to disbursement of the proceeds to a third party.” Id.

In this case, the plaintiffs contend that the language of La. R.S. 37:218 and the holding in Calk support their position that the Bruno Firm is entitled to a first ranked privilege for its attorney’s fees on the insurance proceeds it obtained on behalf of the homeowners. They contend that U.S. Bank as mortgagee-loss payee is not the owner of the insurance proceeds. See La. C.C. art. 477(A)(defining ownership as “the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.”) US Bank is required to hold the insurance proceeds as security to ensure the homeowner-mortgagors make the necessary repairs to their property. It follows, they contend, that U.S. Bank’s status as mortgagee-loss payee - does not trump the Bruno Firm’s first ranked privilege in the insurance proceeds for its attorney’s fee.

US Bank counters that when an insurance policy contains a loss payee clause, the mortgagee is contractually entitled to all of the insurance proceeds before the mortgagor-owner or those claiming through the owner are entitled to recover any amount. US Bank, as it did in the trial court, cites Hussain v. Boston Old Colony Ins. Co., 311 F.3d 623 (5th Cir.2002), for the proposition that its contractual- claim as a loss payee is superior to that of the Bruno Firm’s privilege for its attorney’s fees.

|7In Hussain, the plaintiff, Javaid Hussain, d/b/a Sheik’s Oriental Rugs, was insured by Boston Old Colony (“BOC”); and his mortgagee, Hibernia Bank, was named as a loss payee. After the mortgaged property was destroyed by a fire, Mr. Hus-sain defaulted on his loan, and Hibernia obtained a state court judgment recognizing its continued security interest in the property. Hibernia also filed a separate state court suit in its capacity as loss payee against both Mr. Hussain and BOC to recover a portion of the policy proceeds. Mr. Hussain also filed suit in state court against BOC. A final judgment was entered in state court holding BOC liable to both Mr. Hussain and Hibernia for the policy limits “as their interests appear in the Policy.” The suit subsequently was removed to federal court. In the federal court, one of the issues presented was whether .the claim of Hibernia, as mortgagee-loss payee, outranked the privileged claim of Mr. Hussain’s attorney, Mr. Ran-do, in the distribution of insurance proceeds. Rejecting the argument that Mr. Rando’s attorney’s fee should be calculated on the gross amount of the settlement, the federal court held that Hibernia, as mortgagee-loss payee, was a superior creditor to Mr. Rando.

In this case, the trial court in its reasons for judgment factually distinguished the Hussain case from this one, stating: “[djriving the Fifth Circuit’s opinion was the fact that the mortgagee was the first to pursue the claim, and that the mortgagee was active in protecting its interest.” The trial court stressed that the federal court ^mentioned this fact multiple times throughout the opinion. The trial court thus concluded:

Applying the result in Hussain to these facts would be patently unfair. Here, the mortgagee has done nothing to protect its interest, yet expects to reap the benefits of the insured homeowner’s and the insured homeowner’s attorney’s work and expense. Bruno was the first — and only — attorney to expend resources and- effort to obtain a bigger recovery on behalf of the homeowner, and consequently, the mortgagee. Bruno alone interrupted prescription. Bruno alone commenced the accrual of judicial interest. Not allowing Bruno & Bruno to recover its fees in untenable result.

We agree. We thus find no error in the trial court’s holding that the Bruno Firm’s privilege in the settlement' proceeds is superior to that of U.S. Bank.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurring.

|TI respectfully concur in order to assign reasons that in my view support the majority’s conclusion that U.S. Bank waived its right to object to the fifteen day ad-vanee notice for the hearing provided for in La. C.C.P. art. 966 B on the appellant’s motion for summary judgment.

After unsuccessful correspondence with U.S. Bank extending over months trying to obtain U.S. Bank’s signature on checks for insurance settlement proceeds, the plaintiffs filed their petition for concursus; the trial court by order dated 14 July 2006 simultaneously set a show cause hearing for 11 August 2006 on a show cause order why Bruno & Bruno, L.L.P., the appellant, should not be allowed to withdraw his 25% of the monies deposited in the court’s registry for their legal fees. On 3 August 2006, an order was signed that set a show cause hearing for 11 August 2006 why the appellant should not be allowed to withdraw 33% of a portion of the funds in the court registry as its fee. Service was effected by the long arm statute.

On 10 August 2006, one day prior to the hearing and following U.S. Bank obtaining an extension of time to plead, U.S. Bank removed the case to the United States District Court for the Eastern District of Louisiana that by operation of law 12stayed the 11 August 2006 hearing. Following remand by federal court, the appellant obtained an order on 13 September 2006 resetting their show cause hearing for 11 November 2006. US Bank propounded discovery to the appellant on 2 October 2006.

On 23 October 2006, U.S. Bank answered the petition. On 24 October 2006, U.S. Bank filed a dilatory exception of unauthorized use of summary proceedings, asserting that the appellant could not obtain the sought relief by rule, that contained an order setting a hearing on U.S. Bank’s motion for 17 November 2006. US Bank also filed a motion to compel answers to their discovery that was also set by court order for 17 November 2006.

On 2 November 2006, U.S. Bank filed a peremptory exception of no cause of action and obtained an order on 3 November 2006 setting a hearing date of that motion for 17 November 2006. The substance of the memorandum in support of the exception is a defense to the as yet unfiled motion for summary judgment. The appellant timely filed an opposition to same.

On 6 November 2006, the appellant filed the motion for summary judgment at issue in this appeal and a memorandum in support thereof; and a hearing date was set for 17 November 2006.

Subsequently, U.S. Bank filed a reply memorandum on 15 November 2006 to the appellant’s opposition to the exception of no cause of action. The opposition can be read to essentially address the same issues in the appellant’s motion for summary judgment.

IsOn the morning of 17 November 2006, prior to the hearing of all set motions, U.S. Bank filed an opposition to the appellant’s motion for summary judgment, accompanying with it a statement of uncontested facts.

On 11 December 2006, the trial court rendered a written judgment granting the appellant’s motion for summary judgment, and overruling U.S. Bank’s exception of no cause of action and unauthorized use of summary proceedings.

US Bank thereafter timely filed a motion for new trial (silent on the fifteen day issue), obtaining an order setting same for hearing on 23 March 2007. The appellant obtained an order resetting the motion for 9 February 2007 asserting that expedited consideration was warranted. The new trial motion was denied by judgment signed on 13 February 2007.

Thereafter, the appellant filed a supplemental petition for concursus to which U.S. Bank filed identical exceptions. For all intent and purposes, I find these filings to be immaterial to resolution of the issue presently before the court.

The transcript of the hearing of 17 November 2006 affirmatively reflects that U.S. Bank asked to continue the motion for summary judgment arguing that they did not have the full fifteen days allowed by law. They asserted that they had not had answer to their discovery. The trial court proceeded to decide the issues by taking the matter under advisement. I note that U.S. Bank did not file a further opposition to the hearing of the motion for summary judgment prior to the trial court ruling upon same.

From the foregoing, I find that U.S. Bank waived their right to the full fifteen day advance notice of the motion for summary judgment. La. C.C.P. art. 2164.

      . There are six homeowners named as plaintiffs in the petition. A seventh homeowner was added to the suit by an intervention.

      . As directed by Louisiana Supreme Court, this court has implemented procedures for handling Hurricane Katrina and Hurricane Rita related civil cases in an expedited manner. Pursuant to those procedures, this case was docketed before a five-judge panel and decided in an expedited manner.

      .Although U.S. Bank removed this case to federal court, it was remanded to state court. US Bank then filed exceptions of no cause of action and improper use of summary proceedings. The exception of improper use of summary proceedings was based on the plaintiffs' initial setting of the matter as a rule to show cause. US Bank also filed a motion to compel the plaintiffs to respond to various discovery requests.

      . We note, as did the trial court, that the statutory privilege provision at issue in Hus-sain was La. R.S. 9:5001, not La. R.S. 37:218.

      . Technically, this order was invalid because . it was not signed by a judge, but by a court crier. The order signed did more than merely set a hearing date.

      . Again this order was signed by a court crier.

      . This discovery was formally objected to on 24 October 2006 by the appellant asserting the discovery sought was privileged and irrelevant, and a formal opposition was filed thereto.

      . See footnote 2.

      . See footnote 2.

      . See footnote 2.


author: THOMAS F. DALEY, Judge.

text:
    Julie HUTH v. Gordon PICKERING, C & L Picks Auto Parts 2, Inc. and American Casualty Company of Reading, PA.
    No. 07-CA-181.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2007.

      Robert G. Harvey, Sr., Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Gregory W. Roniger, Law Offices of Sheryl Story, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, GREG G. GUIDRY, and JAMES C. GULOTTA, Pro Tempore.
   THOMAS F. DALEY, Judge.

| ¡¿Plaintiff, Julie Huth, appeals the dismissal of her lawsuit on defendants’ Exception of Prescription. At issue is the application of LSA-R.S. 9:5822, which the legislature enacted to suspend all prescriptive periods in proceedings in the state as a result of the effects of Hurricanes Katrina and Rita.

Plaintiffs petition alleges that she sustained injuries in a motor vehicle accident on December 14, 2004. Plaintiffs suit was filed on January 4, 2006, which, on the face of the pleading, makes the claim prescribed.

In Morris v. Westside Transit Line, 02-1029 (La.App. 5 Cir. 2/25/03), 841 So.2d 920, 924, this Court stated the law governing prescription: 1

Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained. La.C.C. art. 3492. Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be enforced. See, Lima v. Schmidt, 595 So.2d 624, 629 (La.1992). Of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the obligee’s claim. Id., 595 So.2d at 629.
The burden of proof of showing prescription is generally on the exceptor. However, if prescription is evident on the face of the ^pleadings, the burden shifts to the plaintiff to show suspension, interruption or renunciation. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993); Castaneda v. Louisiana Ins. Guar. Ass’n, 95-29 (La.App. 5 Cir. 5/30/95), 657 So.2d 338, 339, writ denied, 95-2097 (La.11/17/95), 663 So.2d 715.

LSA-R.S. 9:5822, which was passed by the legislature in ratification of the Governor’s Emergency Orders following Hurricanes Katrina and Rita, states, in pertinent part:

§ 5822. Suspension and extension of prescription and peremption; exceptions
A. All prescriptions, including libera-tive, acquisitive, and the prescription of nonuse, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall 'apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006. .

Plaintiffs case clearly falls within R.S. 9:5822, as plaintiffs claim would have expired on December 14, 2005. At issue is the language in R.S. 9:5822, which states that the limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action that would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006. Plaintiffs suit was filed on January 4, 2006.

The statute clearly states that it is the “limited suspension and/or extension” that shall terminate on January 3, while it is the “right, claim, or action” that shall lapse on January 4, 2006. LSA-C.C. art. 3492 states that prescription commences to run again upon the termination of the period of suspension. In deciding this case, we are guided by several factors. First, is the fact that LSA-R.S. 9:5822 |4clearly distinguishes the two things, the suspension of prescription versus the lapsing of the right, claim, or action. Second, is the directive of LSA-C.C. art. 3472, which states that “the period of suspension is not counted toward the accrual of prescription.” Third, jurisprudence holds that prescriptive statutes are strictly construed against prescription. Lima v. Schmidt, Id. (noting that if there are two possible constructions of a-prescription statute, one that would maintain the cause of action and one that would bar the cause of action, the cause of action should be maintained). These factors direct us to the conclusion that plaintiff had until January 4, 2006 to timely file her claim. Accordingly, her suit was timely.

We recognize the case of Failla v. Dynasty Distributors, Inc., 2006 WL 1581217 (E.D.La.6/6/06), which recognized that a suit subject to LSA-R.S. 9:5822 filed on January 3, 2006 was timely. That case, however, did not address the significance of the January 4, 2006 date contained in the statute, and therefore is of little guidance to this Court.

This Court also notes the case of Cipriano v. Pulitzer, 07-10 (La.App. 4 Cir. 5/23/07), 959 So.2d 558. However, that case can be factually distinguished. There, plaintiffs cause of action accrued in April of 2006, which brought the case outside the scope of LSA-R.S. 9:5822. The court found that suit timely, however, under LSA-C.C. art. 3472.

Accordingly, the Exception of Prescription is reversed, and the case remanded for further proceedings.

REVERSED AND REMANDED.

      . Lapse is defined in Black's Law Dictionary, Fifth Edition, as "the expiration of a right ... upon the expiration of a period of time” and "the termination or failure of a right or privilege through neglect to exercise it within some limit of time.... ”


text:
    STATE of Louisiana v. Dexter L. VASSAR.
    No. 07-KA-171.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Shannon Swaim, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, LA, for Plain-tiffiAppellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, GREG G. GUIDRY, and JAMES C. GULOTTA, Judge, Pro Tempore.
   THOMAS F. DALEY, Judge.

li>The defendant has appealed his conviction of possession of a firearm by a convicted felon. For the reasons that follow, we affirm.

FACTS:

At the trial of this matter, Sergeant Darren Monie testified that on May 29, 2005, just before 5:00 a.m., he and Sergeant Wine went to a trailer home at 305 South Bengal Road in River Ridge looking for the defendant. At the time, the officers had information that the defendant resided at that location and the officers needed to speak to him. Upon arrival, the officers saw an automobile parked near the trailer and determined that the vehicle was registered to the defendant at the South Bengal Road address. Additionally, the officers determined that the South Bengal Road address was listed on the defendant’s driver’s license. After the officers knocked at the door, the defendant consented to a search of the trailer and signed a consent form.

laWhen the officers stepped into the trailer, they were in the living room, which led to a small hallway, which connected to the bedroom. During the search of the trailer, the officers found a shotgun on top of the dresser in the bedroom. Both Sergeants Monie and Wine testified that the gun was visible from the living room upon entering the trailer. Sergeant Wine retrieved the gun, which was loaded. The defendant was arrested after verifying that it was illegal for the defendant to be in possession of a firearm.

The gun was not dusted for fingerprints. Sergeant Munguia, the State’s fingerprint expert, explained the procedure for lifting fingerprints. He stated that, although a shotgun is a type of object from which fingerprints can be lifted, Sergeant Mung-uia explained that it was rare to obtain a “readable” fingerprint from a firearm.

In an attempt to refute possession of the firearm, the defendant sought to establish that he lived elsewhere. To that end, his wife, Felicia Vassar, testified on his behalf. She stated that she and the defendant were married in 1999, while the defendant was incarcerated in Angola prison. Mrs. Vassar testified that she and the defendant had lived together from the time that the defendant was released from prison in 2000. Mrs. Vassar listed all of the addresses where she and the defendant lived between 2000 and June of 2005, none of which included the South Bengal Street address. According to Mrs. Vassar, the trailer belonged to the defendant’s father, who was in Mississippi. Mrs. Vassar testified that she and the defendant had a key to the trailer and that they had visited the trailer, but that neither of them had ever spent the night there or kept any belongings there.

|4On cross-examination, Mrs. Vassar acknowledged that the “DMV” query reflected that both her vehicle and the defendant’s vehicle were listed as being registered to the South Bengal Street address. However, Mrs. Vassar denied that she had registered her car to that address.

Initially, Mrs. Vassar testified that she could not explain why the South Bengal address corresponded to the defendant’s driver’s license. Upon further questioning, Mrs. Vassar admitted that the defendant had used the South Bengal address in 2004 on his license. Mrs. Vassar said that they were not separated and that the defendant used the address “Just because.”

Mrs. Vassar testified that she visited her father-in-law three to four times per month and had never seen the gun in the trailer before. She did not know to whom the gun belonged.

The defendant took the stand and testified that he heard and agreed with the testimony of his wife regarding the various addresses they lived in since his release from prison. He explained that the trailer at 305 South Bengal belonged to his father. He denied possession of the shotgun and explained that the first time he had seen the gun was when the police brought it out. The defendant explained the circumstances of his being at the trailer on the night he was arrested, testifying that prior to the arrival of the police, he and a woman, who was not his wife, went to the trailer at 3:45 a.m. He and the woman were engaged in sexual relations when the police knocked on the door. According to the defendant, he never lived in the trailer, but he said that this was not the first occasion he had used the trailer for a tryst.

IfiThe defendant admitted to consenting to a search of the trailer by the officers. The defendant denied knowing the shotgun was in the trailer and further stated that he had never owned a gun and knew that he could not possess a gun because of his status as a felon. The defendant had no explanation as to how the gun came to be inside the trailer.

The defendant denied that he told Sergeant Monie that he lived at the trailer. However, the defendant acknowledged that he had used the South Bengal Street address on his identification and his vehicle registration, even though he did not live there. Defendant explained that at the time he used the South Bengal Street address on his identification, he and his wife were living in a hotel and he needed an address to provide to the Department of Corrections prior to his release from prison. The defendant claimed he was released, but that his parole was revoked in 2000 and as such, he did not need to stay at the trailer. The defendant said that the hotel was not among the list of addresses provided by his wife because they only stayed at the hotel for a few weeks. The defendant explained that he had never updated his license with his new address. The defendant admitted that he had pled guilty to two counts of distribution of cocaine in 1996.

At the conclusion of trial, the jury found the defendant guilty of possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. Following the denial of the defendant’s Motions for New Trial and Post-Verdict Judgment of Acquittal, the defendant was sentenced to 10 years imprisonment. This timely appeal followed.

LAW AND DISCUSSION:

The defendant claims the evidence was insufficient to support his conviction because the State failed to prove he had knowledge of the gun in the trailer. The | (¡State responds that a review of the testimony and evidence presented in this matter supports the jury’s conclusion that the defendant exercised dominion and control over the gun, thereby intentionally possessing the gun found in the trailer.

In reviewing the sufficiency of evidence, an appellate court 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 have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). Under LSA-R.S. 15:438, “[tjhe rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This requirement does not establish a standard separate from the Jackson standard; rather, it provides a helpful methodology for determining the existence of reasonable doubt. State v. Jones, 98-842 (La.App. 5 Cir. 2/10/99), 729 So.2d 57, 63.

In assessing other possible hypotheses in circumstantial evidence cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an'exculpatory explanation of the events. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994). Instead, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. Id.

To convict a defendant of violating LSA-R.S. 14:95.1, the State must prove that the defendant was in possession of a firearm and is a convicted felon. State v. Johnson, 03-1228 (La.4/14/04), 870 So.2d 995, 998. Further, the State must prove that ten years has not elapsed since the date of completion of the punishment for the prior felony conviction. State v. Crawford, 03-1494 (La.App. 5 Cir. 4/27/04), 873 So.2d 768, 784, writ denied, 04-1744 (La.5/6/05), 901 So.2d 1083. General intent is required to commit this crime. Id.

The facts of each case determine whether the proof is sufficient to establish possession. State v. Johnson, supra at 998. Guilty knowledge of a defendant’s intent to possess a firearm may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. Constructive possession of a firearm exists when a firearm is subject to a person’s dominion and control. Id. Even if the person’s dominion over the weapon is only temporary in nature and if control is shared, constructive possession exists. Id. However, mere presence of a defendant in an area where a firearm is discovered does not necessarily establish possession. Id. at 999; State v. Curtis, 99-45 (La.App. 5 Cir. 7/27/99), 739 So.2d 931, 944.

The defendant does not challenge his prior felony convictions or argue the ten-year statutory limitation period has not expired. Instead, the defendant contends that the State failed to prove his guilty knowledge. He relies on several cases to illustrate the point that a defendant’s mere presence in an area with a firearm does not automatically prove possession. In State v. Evans, 29,675 (La.App. 2 Cir. 9/24/97), 700 So.2d 1039, writ denied, 97-2942 (La.1/9/98), 705 So.2d 1121, the court held that the evidence was insufficient to show constructive possession of a gun found under the seat in a' vehicle belonging to another person in which one defendant was driving and the other defendant was a passenger. The owner of the gun testified that he had placed it under the seat without the ^defendants’ knowledge and that he had inadvertently left it in the car when the defendants dropped him off. The Evans court reversed the convictions because there was no evidence they were aware of the gun under the seat. Id. at 1043-1044.

In State v. Fisher, 94-2255 (La.App. 1 Cir. 12/15/95), 669 So.2d 460, writ denied, 96-958 (La.9/20/96), 679 So.2d 432, the court held that the evidence was insufficient to prove the defendant had the general intent to possess a gun found in his sister’s purse after a search of the vehicle the defendant was driving. Although the clip was found in the defendant’s pocket, the sister’s purse was located on the front passenger’s seat floorboard and the sister produced proof that she was the gun’s registered owner. The Fisher court concluded that the evidence disclosed no intent to possess the gun, but only a mere acquiescence to the fact that the defendant’s sister owned a gun and had it in her purse. Id. at 462.

Finally, in State v. Heacox, 543 So.2d 101 (La.App. 3 Cir.1989), the court held there was no evidence that the defendant was aware of the gun, which was partially exposed on the seat of the vehicle between the defendant and the driver-owner of the vehicle. The gun belonged to the mother of the driver. In reversing the defendant’s conviction, the Third Circuit noted that there was no evidence to show that the defendant was aware that the gun was in the vehicle, or that he intended to possess it, rather than mere acquiescence to the fact that the driver had a gun in his truck. Id. at 106.

The foregoing cases are distinguishable from the present matter before this Court. In those cases, the guns were found in automobiles that did not belong to the defendants and there was evidence that the guns belonged to other people, who claimed ownership of the guns at trial and explained the reasons the guns were found in areas near the defendants. Unlike these cases, no one else in the present case claimed ownership of the gun found in the trailer. Defendant was occupying |9the trailer when the gun was found and admitted to occupying the trailer on prior occasions.

In his brief, the defendant acknowledges that courts have generally found evidence of constructive possession when a gun is found in an area customarily occupied by the defendant. He notes the case of State v. Jackson, 97-1246 (La.App. 5 Cir. 4/13/98), 712 So.2d 934, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37, in which this Court held that the evidence was sufficient to prove the defendant knowingly possessed the gun found in his bedroom under the mattress where he regularly slept. Despite the argument that other friends and relatives had recently stayed in defendant’s bedroom while visiting and the gun could have belonged to them, this Court found the evidence was sufficient to affirm defendant’s conviction for possession of a firearm by a convicted felon.

Further, in State v. Paul, 05-612 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 349-350, this Court found that the State proved beyond a reasonable doubt that the defendant knowingly possessed the gun found between the pillows in the room where he slept when spending the night at his father’s house. In Paul, the defendant sought to establish that he lived elsewhere. His girlfriend testified that he stayed with her and his father testified that the defendant was living with his grandmother. However, the defendant’s father admitted that the defendant slept in that bedroom when he spent the night at the house, and the defendant had identified that bedroom as his when a probation officer visited the home a month earlier. Further, the police recovered personal items bearing the defendant’s name from the room. As such, this Court held that the State presented sufficient evidence that, if believed by the jury, established the defendant would have known that the gun was in between the pillows in the room where he slept, and thus, that the gun was in the defendant’s dominion and control. Id at 350.

|inOur review of the record and evidence in this case indicates that the State presented sufficient evidence, which if believed by the jury, showed that the defendant exercised dominion and control over the gun in the trailer. The State presented evidence that the police had information that the defendant resided at that trailer before they went there at 5:00 a.m. in the morning. A check of the defendant’s. vehicle registration and the defendant’s driver’s license corresponded to that same address. Additionally, Sergeant Monie testified that the defendant gave his address as 305 South Bengal Road when Sergeant Monie executed the consent to search form before searching the trailer.

While the defendant contended at trial that he did not live at the trailer, he admitted that this was not the only time he had used the trailer for a tryst. Moreover, the defendant admitted that he listed the trailer as his residence on his driver’s license and his vehicle registration, although he denied providing the trailer’s address to Sergeant Monie on the consent form. In addition, the defendant admitted that, moments before the police showed up, he was occupying the bed in the same room where the gun was located. According to Sergeant Monie, that was the only bed he saw in the trailer, and both Sergeants Wine and Monie testified that the gun was visible upon entering the trailer.

Whether a defendant possessed the requisite intent in a criminal case is for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d 311. In evaluating the sufficiency of the evidence, the trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may impinge on the fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Johnson, 870 So.2d at 998.

In State v. Sosa, 05-213 (La.1/19/06), 921 So.2d 94, 99, the Louisiana Supreme Court reiterated the standard of review in circumstantial evidence cases:

[I]n cases involving circumstantial evidence, when a jury rationally rejects the hypothesis of innocence advanced by the defendant, that hypothesis fails, and “the defendant is guilty unless there is another hypothesis which raises a reasonable doubt,” i.e., an “alternative hypothesis ... sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” State v. Captville, 448 So.2d at 680 (internal quotation marks and citation omitted).

In finding the defendant guilty in the present case, the jury rejected the hypothesis of innocence advanced by the defendant and believed the testimony of the State’s witnesses, rather than the defense witnesses’ testimony. Given the conflicts between the testimony of the defendant and his wife, and the defendant’s vague explanation for using the address on his vehicle registration and his driver’s license, the jury’s decision was not irrational. As such, we find that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant was in constructive possession of the gun found on the dresser next to the bed the defendant was occupying when the police arrived at the trailer.

The record was reviewed for errors patent in accordance with 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). There are no errors patent that require corrective action by this Court.

For the foregoing reasons the defendant’s conviction is affirmed.

AFFIRMED.

      . Photographs showing that the shotgun was on top of what appears to be a hutch on the dresser were introduced into evidence.

      . Although during her testimony she produced a copy of her vehicle registration for 2003-2004 that listed another address, she did not provide a copy of her registration showing the address for the year 2005.

      . The defendant's 1996 distribution of cocaine convictions were established through the testimony of Sergeant Munguia and documentary evidence of the convictions. In addition, the defendant admitted his prior felony convictions.