author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Patrick W. VEALS.
    No. 07-KA-605.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Patrick Veals, Kinder, Louisiana, pro se.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ¡¡Defendant, Patrick Veals, was charged by amended bill of information along with co-defendants with three counts of armed robbery, violations of LSA-R.S. 14:64. At his arraignment, defendant pled not guilty to all charges. Defendant’s motions to suppress evidence, identification, and statement were denied by the trial court. Following a jury trial, defendant was found not guilty as to count one, and guilty as charged as to counts two and three. He was sentenced to fifteen years on each count, to run concurrently with each other. Defendant was granted an out-of-time appeal and now asserts three assignments of error by counseled and pro se briefs. He also requests a review of the record for errors patent.

\ ¿FACTS

In count three of the amended bill of information, defendant was charged with armed robbery of Peter Bui. Mr. Bui testified at trial that during the late afternoon of April 1, 2003, he was cleaning his car at a carwash on Behrman Highway when a black man pointed a gun at him and said, “Give me whatever you have.” Bui gave the man his wallet, which contained some credit cards and a casino card. The gunman then turned and ran from the scene. A second man — who had been hiding out of Bui’s view up to that point — fled along with him. Bui testified that one of the men ran through some bushes and into a nearby apartment. The second man continued to flee on foot.

At trial Bui testified he could only see the gunman’s eyes and mouth, as the rest of the man’s face was covered by a dark-colored ski mask. According to Bui, the gunman was five feet, five inches to five feet, seven inches tall, and weighed 135 to 140 pounds. The second man was taller than the gunman.

Bui testified that carwash employees called police to report the robbery. Officers arrived at the scene 10 to 15 minutes later. Deputy Anthony Green of the Jefferson Parish Sheriffs Office (JPSO) testified he was the responding officer. He interviewed Bui, who reported he had been robbed at gunpoint by two individuals who had taken his wallet and then fled into a wooded area behind the carwash. Green wrote the initial police report in the matter. Bui described the gunman’s clothing to Green as dark jeans, a dark hooded jacket, and a hat. Bui did not say anything to Green about a ski mask.

Detective Dax Russo of the JPSO’s robbery division testified he reported to the scene of the carwash robbery at 835 Behr-man Highway. Russo interviewed Mr. Bui, who gave him information about the suspects and about his stolen credit cards. Bui told Russo the gunman wore dark clothing and a ski mask.

|BBui identified state’s exhibits of photographs of cards that were in his wallet when it was stolen, including a photograph of the Hibernia banking card.

Russo testified that several days after the carwash robbery, Bui notified him there had been some activity on his stolen credit cards. Based on that information, Russo went to Albertson’s supermarket on Belle Chasse Highway and met with Jared Hemler, a store manager. Hender gave Russo an electronic journal report of a purchase in the amount of $80.98 made with one of Bui’s bank cards. Russo testified that based on information he obtained at Albertson’s, he instituted a search for a tan or beige older model foreign car.

Russo also obtained documentation from Wal-Mart on Behrman Highway of a purchase made there using one of Bui’s cards. Wal-Mart’s loss prevention manager gave Russo the surveillance tape of the purchase, and the detective created some still photographs from the videotape.

Russo further testified that he obtained surveillance videotape from Algiers Bank and Trust, located inside of a Winn-Dixie supermarket on Holiday Drive in New Orleans. The tape depicted subjects attempting to use Mr. Bui’s bank card to obtain money from an ATM machine. The detective made still photographs from the surveillance tape. One of the still photographs from the surveillance tape was date and time stamped April 1, 2003, at 10:27 p.m.

In count two of the bill of information, defendant was charged with armed robbery of Michael Crawford. Mr. Crawford testified he is a maintenance supervisor at Cedarwood Apartmerits on Park Place. On the night of April 2, 2003, he received an emergency call from one of the apartments. When he drove-to that apartment, and found that two men were standing in front of it. Both men had something white covering their faces. One of them pulled a black revolver on him. The men ordered Crawford to drop what he had and to turn around. Crawford | fidropped his wallet on the ground, then turned and ran. Crawford testified his wallet contained his identification, credit cards, and $20.00 in cash.

Crawford alerted police to the robbery immediately. Deputy Roy Gorman testified that he reported to the scene at 2350 Park Place in Gretna. Gorman interviewed Crawford and completed a police incident report. Gorman testified that Detective Russo did the follow-up investigation on the case. Crawford-was never able to identify the perpetrators, since he did not see the men’s faces.

■ In count one of the bill of information— on which defendant was ultimately acquitted — defendant was charged with armed robbery of Teresa Hoang. Ms. Hoang testified that on April 8, 2003, she was working the afternoon shift at the Quality Inn Hotel on the Westbank Expressway in Gretna. She was alone at the front desk when a man entered and used the lobby telephone. Just after that man left the hotel, a second man entered, wearing a handkerchief across his face. She could only see the man’s eyes. The man pointed a gun at her head and ordered her to shut up and give him the money in the cash register. After she opened the cash register the man pushed her to the floor and said, “Shut the f* *k up before I shoot you.” After the gunman took the money from the register, he dragged Hoang to the hotel’s safe and told her to open it. She told him she did not know the safe’s code. Continuing to point the gun at her, the man said, “Shut the f* *k up.”

Hoang testified she could only see the barrel of his gun, and that it was black. Hoang said there was only 50 to 100 dollars in the cash register at the time of the robbery. She surmised that the man who entered the lobby to use the telephone prior to the robbery was with the gunman.

After the gunman left, Hoang called 9-1-1 to report the robbery. Detective Randy Thibodeaux testified that he responded to the call. Ms. Hoang told him the gunman had brown eyes, curly black hair, and wore dark colored jeans and black ptennis shoes. The man wore a bandanna. Detective Thibodeaux testified that Hoang described a second man who used the telephone in the lobby just before the robbery, but that she was unsure about whether the second man was connected to the gunman.

Detective Russo testified that based on information he received from a witness named Brignac at the Quality Inn, he set out to find an older model beige or tan Mercedes automobile. He decided that since the three robbery locations and the stores where the stolen cards were used were all in the same general vicinity, he would drive around that area and look for a car that fit that description. Officers located an older Mercedes meeting the description on East Monterey or West Monterey. They canvassed the neighborhood to uncover the identity of the car’s owner. They learned from the police computer that the car belonged to John Williams.

Russo testified that they located Williams and advised him of his Miranda rights. Williams agreed to waive his rights and speak with officers. Williams also completed consent forms allowing officers to search his car and his residence. Russo testified that they located items purchased at Albertson’s with Mr. Bui’s bank card, including Johnny Walker, Red Label, Taaka Vodka, and a case of Bud Light beer. Officers then made contact with Patrick Wooten, an acquaintance of defendant’s.

Patrick Wooten testified that in April, 2003, he lived in Monterey Court in Terry-town, a subdivision close to Behrman Highway. He knew John Williams, Walter Cosse, and defendant. Wooten testified that he recognized the cards pictured in the State’s exhibits and that he also recognized the .22 caliber handgun in the State’s evidence. Wooten said defendant brought those items to his house | sand asked him to hold them for him. Defendant returned 15 minutes later to retrieve the gun. Wooten saw that the cards did not belong to defendant. Sergeant Larry Dyess, whom Wooten has known for three to four years, confiscated the cards sometime in April, 2003. The sergeant asked Wooten about the nobbery suspects, and where they lived. When questioned at trial about whether defendant told him where he had obtained the cards, Wooten invoked his Fifth Amendment right against self-incrimination.

Wooten intimated that he had been threatened by members of defendant’s family who did not want him to testify against defendant at trial. He testified that if he told the truth at trial, his neck would be on the “chopping block.”

Detective Russo testified that he learned defendant was staying at the home of his girlfriend, Aniquia Lowe. Russo and Sergeant Dyess went to the Lowe residence at 936 West Monterey Court, Apartment B, and knocked on the door. Aniquia answered the door and allowed the officers to enter the apartment. The officers learned defendant was in a bedroom.- They brought him from the bedroom to the front room of the apartment and advised him of his rights.

When Aniquia’s mother, Shandrika Lowe, arrived, the officers obtained her written consent to a search of the residence. Russo asked defendant whether there was any clothing in the apartment that he had worn at the time of the car-wash robbery, and defendant pointed out a black Girbaud t-shirt. The Wal-Mart surveillance video taken hours after the robbery depicts defendant wearing that shirt. Russo testified that Mr. Bui’s Hibernia bank card was found under a pillow on the bed where defendant had been lying.

Russo testified that after defendant was advised of his rights, he began telling him about his involvement in the carwash robbery. Defendant said the gun he used in the robbery was next door at the home of his friend, Walter. While the [ ¡¡officers were at the Lowe residence, Walter Cosse knocked on the front door. The officers answered the door, and Cosse looked surprised. Cosse said he was there to visit defendant, and that he wanted to tell the officers something. Russo advised Cosse of his rights, and asked for his consent to search his residence. Cosse consented, and the officers searched his home. They recovered a .22 caliber gun from a clothes hamper in Cosse’s bedroom.

Russo testified that he transported defendant to the JPSO’s detective bureau, where he conducted three tape recorded interviews with defendant. Defendant completed a waiver of rights form before each interview. The three tape recordings were played for the jury at trial. The recordings were transcribed, and the three transcripts were admitted in evidence as State’s Exhibit 20.

The first recorded interview began at 6:50 p.m. on April 10, 2003. Both Russo and Sergeant Dyess questioned defendant about the carwash robbery. Defendant said he was with Clarence, whose sister lives in his neighborhood. Clarence wanted to rob someone. Defendant said he was wearing a black shirt and black pants; and Clarence was wearing a white shirt pulled over his head, a “rag” (i.e., bandanna) over his face, jeans, and a jean jacket. Clarence’s bandanna had a white or blue design in it. . Clarence gave defendant a black knit hat with holes cut out for the eyes and nose. Clarence told defendant he had a gun.

Defendant stated that he and Clarence approached the carwash through the bushes in the back. Clarence, who was in front of defendant, approached an Asian man and demanded his wallet. Defendant grabbed the wallet and he and Clarence fled on foot. Defendant said Clarence ran behind him. Defendant got $10.00 in cash from the robbery. The wallet also contained a Hibernia bank card and some other cards. .

| mDefendant told the detectives he went to Poochie’s house, and that Poochie drove him to various stores so they could use the victim’s credit cards. They used Poochie’s car, an old yellowish-colored Mercedes' Benz. They went to the Quality Inn because it does not have a security camera at its ATM. They also went to Winn-Dixie, Wal-Mart, and Sav-A-Cen-ter. Poochie bought several bottles of alcohol at Albertson’s, and defendant bought some baby items for his pregnant girlfriend. Defendant identified himself in still photographs taken from surveillance tape at Winn-Dixie and Wal-Mart. He also drew a diagram of the carwash robbery, a copy of which was attached to the transcript of the statement.

Defendant told the officers the ATM card they used was Mr. Bui’s Hibernia card. He said they threw the cards away afterwards. He did not know how Mr. Bui’s Hibernia card had gotten into his bedroom at the Lowes’ apartment, because Poochie was the last one to have it. Defendant said he had given the gun to Walter to hold, and that it was now at Walter’s house. The first interview ended at 7:21 p.m.

The second interview began at 8:32 p.m. on April 10, 2003. Detective Russo questioned defendant about the robbery of Michael Crawford in the apartment complex. Defendant said he was with “Putt,” who lives in, his neighborhood. They were walking around looking for someone to rob. Defendant was wearing a blue mask over his head with holes cut out of it for his eyes. Putt was wearing black pants and a black hooded sweater, and had a rag over his face. They saw the victim pull up in a vehicle, and they approached him. Defendant held the gun on the victim and told him to drop his wallet and run. The man complied. Defendant and Putt fled on a bicycle. He spotted a police car, and he got off of the bicycle, jumped over some fences, and went indoors.

1 nDefendant said he used a black, .22 caliber revolver in the robbery. The victim’s wallet was black. It contained several cards and $20.00 in cash. Defendant threw away the cards, and he and Putt each took $10.00. The second interview ended at 8:45 p.m.

Defendant’s third interview began at 9:34 p.m. on April 10, 2003. Detective Russo showed defendant a photographic lineup. Defendant identified a photograph of the person he knew as Putt, the person with whom he committed the second robbery. Detective Russo noted for the record that the person defendant identified was Walter Cosse. Defendant said Cosse did not have a gun at the time of the robbery. The third interview ended at 9:37 p.m.

Aniquia Lowe testified on defendant’s behalf at trial. At the time of the robberies, she was pregnant with defendant’s child, and defendant was spending some nights at her mother’s residence. Aniquia testified that on April 8, 2003, the date of the robbery at the Quality Inn, she was taken to University Hospital in New Orleans after fainting. She was not discharged until 2:45 the following morning. Defendant was with her for at least part of her hospital stay. She was sleeping for part of that time, so she could not say what time he arrived at the hospital. Nor did she know whether he left the hospital and returned while she was sleeping. An-iquia testified that she and defendant were at her mother’s house on April 10, 2003, when Detective Russo and Sergeant Dyess arrived. She said her mother was not at home at the time, and defendant was the oldest one there. Aniquia testified that her 14-year-old sister answered the door. The officers simply walked inside, went into the bedroom, and brought defendant out. Aniquia said the detectives had their guns drawn. They did not ask for her permission to search the residence.

| ^Aniquia testified that Detective Russo asked her what the credit card was doing in the apartment, and she told him she did not know. Russo told her that if she did not tell them what defendant was up to, she -would never see her unborn baby. Aniquia’s mother and grandparents arrived at the apartment, and they spoke to the detectives. The officers took the defendant with them for questioning, and Aniquia did not see him again.

Shandrika Lowe, Aniquia’s mother, testified she was at work on April 10, 2003, when the detectives arrived at her home. When she went home, she took her parents with her for support. When she got there, one of the detectives was outside the residence. She identified herself to him, and then entered , the apartment. .Sergeant Dyess explained to her what had happened, and asked for her permission to search the apartment. Ms. Lowe testified that Dyess told her she could either consent to a search or he would obtain a warrant and search the apartment anyway. Ms. Lowe said she could tell the apartment had already been searched. She nevertheless signed the consent form and allowed the detectives to search the residence.

Defendant took the stand in his own defense. He testified he was 17 years old at the time of his arrest, and 19 years old at the time of trial. Defendant denied having robbed Mr. Bui on April 1, 2003. He also denied any involvement in the robbery of Mr. Crawford on April 2, 2003. He testified that he did not rob the Quality Inn on April 8, 2003, and that he was at the hospital with Aniquia at that time.

Defendant said he came into possession of Mr. Bui’s credit cards when Walter Cosse and Clarence Newsome visited him at Aniquia’s house and bragged that they had robbed someone. They asked defendant if he wanted some credit cards, and defendant took them. Defendant then went to Wal-Mart with John |1sWilliams (a/k/a Poochie), and bought merchandise with the cards. Defendant said Patrick Wooten’s testimony that he received credit cards from him was untrue.

Defendant identified himself in the surveillance photographs from the ATM at Winn-Dixie. He pointed out that John Williams was pictured attempting to use one of the victim’s cards, while he (defendant) was talking on a telephone.

Defendant testified that when the detectives arrived at the Lowe residence, 14-year-old Toniquia Lowe answered the door. The officers forced their way inside with their guns drawn. Defendant said the officers entéred the bedroom where he was, shoved him against a wall, and held a gun to his head. The officers did not advise him of his rights in the apartment. The detectives told him they knew where the gun was, and they knéw the answers to their questions already, so he should just give them the answers they wanted to hear. Sergeant Dyess told him if he did not cooperate, he would never see his baby.

Defendant testified that the officers questioned him all the way from the Lowe residence to the detective bureau. Once they arrived there, they questioned him for 15-20 minutes before they started recording. The detectives advised him of his rights at the detective bureau, but he did not understand what they told him. Defendant said the detectives told him what they wanted to hear, and he repeated it during the recorded interviews. The officers told him if he did not cooperate with them, he would receive a sentence of life imprisonment.

Defendant said that on the morning after his' arrest, he went before a judge for a bond hearing. The judge advised him he had the right to remain silent. After-wards,- Detective Dyess got him from the parish correctional center and attempted to question him again. He told them he would not speak to them without his family-present. The officers told him his family could not be present.

|140n the State’s rebuttal, Sergeant Dyess testified that Aniquia Lowe answered the door when he and Russo arrived at her apartment. Aniquia gave them permission to enter the residence. He and Russo waited for 30-45 minutes for Shandrika Lowe to arrive. When Ms. Lowe completed the consent form, they began their search. Dyess further testified he never told defendant he was going to serve a life sentence for this series of robberies.

Detective Russo testified on rebuttal that he did not threaten Aniquia Lowe or defendant, nor did he tell defendant what answers to give during the recorded interviews. Russo further testified that Aniq-uia answered the door when he and Dyess arrived at her residence, and she did not mind if they entered. Russo said defendant cooperated with him and Dyess from the beginning.

DISCUSSION

By counsel’s first assignment of error, defendant complains that the officers’ entry and search of the Lowe residence was illegal, as it was not based on valid consent. He argues that any evidence seized as a result of the search should have been suppressed as fruit of the poisonous tree. The State responds that defendant failed to raise this argument below in his motion to suppress, and he is not entitled to raise it for the first time on appeal.

The defense has the burden of asserting the basis for its motion to suppress in order to provide the State with adequate notice so that it may prepare evidence addressing the defendant’s claims. LSA-C.Cr.P. art. 703 E; State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162. Therefore, the defendant is limited on appeal to the grounds articulated in his motion to suppress or at the hearing on that motion. A new basis, even a meritorious one, cannot be raised for the first time on appeal. 1 State v. Jackson, supra; State v. Smith, 94-120, p. 6 (La.App. 5 Cir. 5/31/94), 638 So.2d 452, 455.

The record shows defendant was represented by appointed counsel for his arraignment and for some time thereafter. There is no evidence in the record that the public defender, Tracy Glorioso, filed any written suppression motions on his behalf. Nevertheless, the trial court heard defense motions to suppress evidence, confession, and identification on August 11, 2004. At the time of the suppression hearing, Ms. Glorioso was still representing defendant. The State’s sole witness at the hearing was Detective Russo. Russo identified the consent form signed by Shandrika Lowe for the search of her residence. He testified Ms. Lowe freely and voluntarily consented to the search of the apartment.

In her argument to the court, defense counsel noted that defendant was only a guest in the Lowes’ apartment, and that he did not consent to the search. She did not argue that the written consent of Ms. Lowe, the lessee of the residence, was invalid. The trial judge denied all of the suppression motions.

After the motion hearing, defendant retained James Williams as his trial counsel. Mr. Williams filed a Motion to Suppress the Evidence on September 17, 2004. Counsel asserted the evidence in this case was not seized pursuant to a lawful search, as the officers did not have a valid search warrant or probable cause. The motion contained no allegation that Ms. Lowe’s consent for the search was invalid. Moreover, there is no evidence in the record that the written motion was ever heard. This Court has held that motions pending at commencement of trial are waived if the defendant proceeds to trial without objecting to the court’s failure to rule. State v. Day, 00-64, p. 5 (La.App. 5 Cir. 5/30/00), 762 So.2d 264, 268.

|1(iBased on the foregoing, we find the State is correct in its assertion that defendant is not entitled to review on this issue. Further, even if addressed on its merits., defendant’s argument has no merit. ,

As a preliminary matter, it is noted that defendant has standing under the Fourth Amendment to challenge the officers’ war-rantless search of the Lowe residence, despite the fact that he was only a house-guest at the time of the search. In Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the United States Supreme Court held that overnight guests have a legitimate expectation of privacy in their host’s residence because the guest has a measure of control over the premises, and because “it is unlikely that [the host] will admit someone who wants to see or meet with the guest over the objection of the guest.” Id., at 99, 110 S.Ct. at 1689.

Unless justified by one of the narrowly drawn exceptions to the Fourth Amendment’s warrant requirement, a war-rantless search is per se unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). In a hearing on a motion to suppress, the State bears the burden of proving that such an exception applies. LSA-C.Cr.P. art. 703 D; State v. Addison, 05-378, p. 8 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 890, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36. The trial court’s ruling on a motion to suppress is afforded great weight and will not be overturned unless it is clearly erroneous. State v. Cambre, 04-1317, p. 14 (La.App. 5 Cir. 4/26/05), 902 So.2d 473, 482, writ denied, 05-1325 (La.1/9/06), 918 So.2d 1039. To determine whether the trial court’s denial of a motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Addison, 05-378 at pp. 8-9, 920 So.2d at 890.

|17Consent to search is one of the recognized exceptions to the warrant requirement, where the consent is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects' sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). A warrantless search may be valid even if consent was given by one without authority, if facts available to the officers at the time of the entry justified the officers’ reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 185-89, 110 S.Ct. 2793, 2799-2801, 111 L.Ed.2d 148 (1990); State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). Consent may be oral or in writing. State v. Ossey, 446 So.2d 280, 287 (La.1984), cert0 denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984); State v. Gomez, 06-417, p. 7 (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 86.

When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was freely and voluntarily given. State v. Enclade, 03-353, p. 9 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 15. Voluntariness of consent is a question of fact which the trial judge must determine based on a totality of the circumstances. Id. If consent to search is obtained after an illegal detention or entry, the consent is valid only if it was the product of free will and not the result of exploitation of the previous illegality. State v. Cambre, 04-1317 at p. 9, 902 So.2d at 480. .

In the instant case, defendant maintains the officers did not enter the premises legally, basing his argument on defense testimony that the detectives entered the apartment uninvited, and with their guns drawn. The State’s witnesses testified that the contrary was true. Detective Russo testified at trial that Aniquia |1sLowe answered the door and allowed him and Detective Dyess into the apartment. Dyess also testified that they had Aniquia’s permission to enter the apartment. Russo testified that he and Dyess did not have their weapons drawn when they entered. Since Aniquia lived at the apartment, she possessed common authority over the premises. Aniquia’s status as a minor did not vitiate her consent to the officers’ entry. See State v. Brumfield, 05-2500, p. 6 (La.App. 1 Cir. 9/20/06), 944 So.2d 588, 594, n. 2, writ denied, 07-0213 (La.9/28/07), 964 So.2d 353, where the court found a minor resident of a trailer home freely gave an officer consent to enter to look for the defendant, whom the officer expected to find there. The Brum-field court found that the young man’s status as a minor did not vitiate his consent.

In the instant case, defense witnesses testified that it was actually Aniquia’s 14-year-old sister who answered the door when the detectives knocked. If that was the case, the sister’s consent would have been sufficient to allow the officers to enter.

Defense witnesses testified that the officers searched the apartment before Shan-drika Lowe arrived and signed the consent to search form. Detective Russo testified Aniquia gave them her verbal consent to look for defendant in the bedroom. Russo said that once they found defendant, they did not do anything else until Ms. Lowe arrived. The question of which witnesses’ testimony was more truthful was a matter of credibility for the trier of fact.

The trial court did not err in finding, based on a totality of the circumstances, that Shandrika Lowe’s written consent to a search of her apartment was freely and voluntarily given. The testimony at the suppression hearing was limited with regard to the consent form. The prosecutor simply had Detective Russo identify it, and asked whether Ms. Lowe signed it freely and voluntarily. Russo responded |iathat she had. At trial, Russo testified that no one was forced or threatened to obtain their consent to the searches. Detective Dyess testified that the consent form Ms. Lowe signed contains a statement to the effect that the subject has the right not to consent to a search and to require police to obtain a warrant. He said Ms. Lowe cooperated with the officers. Ms. Lowe herself testified that her parents advised her to sign the consent form because she had nothing to hide, so she signed it.

Based on the foregoing, this assignment of error has no merit.

By counsel’s second assignment of error, defendant complains that the statements he gave to police were inadmissible because they were the result of the officers’ threats and coercion, and because he was questioned before he was advised of his Miranda rights.

Before a confession or inculpa-tory statement made under custodial interrogation can be admitted in evidence, the State has the burden of showing that the accused who made the statement was first advised of his Miranda rights and that the statement was made freely and voluntarily, and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA-R.S. 15:451; State v. Harris, 01-2730, p. 26 (La.1/19/05), 892 So.2d 1238, 1261, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Gurganus, 03-992, p. 11 (La.App. 5 Cir. 12/30/03), 864 So.2d 771, 778, writ denied, 04-0254 (La.6/4/04), 876 So.2d 75. A determination as to voluntariness is made on a case-by-case basis, with a regard for the facts and circumstances of each case. Id. The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. State v. Pugh, 02-171, p. 19 (La.App. 5 Cir. 10/16/02), 831 So.2d 341, 353. The trial judge’s determination as to the admissibility of the statement is entitled to 1 ?ngreat weight and will not be overturned unless unsupported by the evidence. State v. Gregory, 05-628, p. 8 (La.App. 5 Cir. 3/28/06), 927 So.2d 479, 483.

At the suppression hearing, Detective Russo identified the two rights of arrestee forms completed by defendant on April 10, 2003, and a third that was completed on April 15, 2003. Russo testified that he advised defendant of his rights, and defendant did not have any questions. Defendant initialed the form beside each right to indicate that he understood what was explained to him. He also signed the forms to indicate he understood his rights and he was willing to waive his rights and answer the officers’ questions without an attorney present.

Detective Russo testified that defendant did not invoke his right to an attorney at any time. He did not appear to be under the influence of alcohol or drugs, nor did he appear to suffer any mental defects. Russo testified no one threatened or coerced defendant in order to induce him to submit to the interviews. No intimidating tactics were used on defendant.

At trial defendant testified that Russo and Dyess questioned him on the trip from the Lowe residence to the detective bureau without first advising him of his rights. Defendant also stated that Sergeant Dyess told him if he did not cooperate with the investigation he would never see his unborn baby. Dyess also told him he would go to prison for life if he did not cooperate. According to defendant, the officers told him what to say during the recorded interviews. He admitted to the robberies because they held a gun to his head.

Defendant testified the officers allowed him to use the telephone in his office to make a call between the first and second interviews. He called a girlfriend, Marcia Vaughn. When he told Marcia the officers were threatening him, Sergeant Dyess took the telephone from him and hung it up. Marcia testified at trial that defendant did telephone her following his arrest on April 10, 2003. He | ^told her he was in jail, and she did not believe him. She heard some noise on the line, and then the call was disconnected.

Defendant further testified at trial that on April 15, 2003, after he had been before a judge and had his bond set, Sergeant Dyess took him from the correctional center and told him he was “going for a ride.” Defendant told Dyess the only way he would talk to him again was if his family was allowed to be there. Dyess told him he could not have his family there. The officer questioned him for several hours before returning him to the jail.

Detective Russo testified at trial that defendant was advised of his Miranda rights at the Lowe residence. Russo said that either he or Sergeant Dyess was with defendant at all times at the detective bureau following his arrest on April 10, 2003. Defendant never asked to make a telephone call while there. If defendant had made a call, he or Dyess would have witnessed it. Russo said if Marcia Vaughn claimed defendant telephoned her to inform her that officers were abusing him, she was lying. Russo further testified that he never turned off the tape recorder during the first interview on April 10, 2003.

Russo testified that when he interviews suspects, he does not suggest to them what answers they should give. There were time lapses between the statements because each statement pertained to a different robbery case, and he stopped after each one to do paperwork pertaining to that individual case.

Sergeant Dyess testified that on April 15, 2003, he again advised defendant of his rights, and completed an advice of rights form with him. According to Dyess, defendant said he understood his rights, and he wanted to waive them and give a statement. Dyess questioned defendant about the Quality Inn robbery. Defendant denied any involvement in that robbery, and said he only went into the hotel to use the telephone. At that time defendant refused to submit to a recorded ^interview. Dyess testified he concluded the questioning, because once a subject says he wants to discontinue an interview, police cannot, by law, force him to continue.

During the State’s rebuttal case, Sergeant Dyess testified that he did not tell defendant he would serve a life sentence for this series of robberies. Detective Russo testified he did not see Sergeant Dyess hold a gun to defendant’s head, nor did he hear Dyess threaten defendant. Russo further testified that he did not feed defendant information during the three recorded interviews. Russo said defendant cooperated with the investigation from the beginning.

Before the officers began the recorded interviews on April 10, 2003, they questioned defendant about whether he had been advised of his rights, and whether he was freely and voluntarily waiving them. Defendant acknowledged that the officers had verbally advised him of his rights before transporting him to the police station. He further stated that the officers had gone over the waiver of rights form with him, and that he had initialed and signed it. Defendant said he understood all of his rights, and that he wished to waive them and submit to an interview. At the conclusion of the first statement defendant said he had not been forced to give the officers information.

At the beginning of the second recorded statement, defendant acknowledged that he had been advised of his rights again, and that he had signed the second waiver of rights form. Defendant stated he had not been forced in any way to make a statement. At the beginning of the third recorded statement, defendant again acknowledged that he had been advised of his rights, and that he had not been forced to submit to the interview.

Where the State’s and the defendant’s testimony differ, the trial judge and the jury apparently found the State’s witnesses to be the more credible. Based on | g3the foregoing, we find the State sufficiently proved that defendant was properly advised of his rights, and that he knowingly and voluntarily waived his rights prior to making statements to police. There is no evidence that the trial court erred in denying defendant’s motion to suppress statements. This assignment of error is without merit.

In a pro se assignment of error, defendant argues he was prejudiced by the prosecutor’s attempts to question him about prior arrests during cross-examination at trial.

Defendant refers to an exchange in which the prosecutor questioned him about the circumstances surrounding his recorded statements to police. Defendant commented that he had “never been in trouble before, to understand the rights of the law.” The following colloquy ensued:

Q. Let’s focus on that for a second. You’ve never been in trouble before?
A. No, ma’am.
Q. Ever?
A. No, ma’am.
Q. You’ve never been arrested before and had your rights read to you, previously, — prior to this?
A. Runnin’ away from home, but how could you call that arrested, when I was released to my mother custody.
Q. And you’ve never been arrested for anything else, where you’ve had your rights read to you?
A. No.
Q. Are you sure about that?
A. Yes.
Q. You weren’t arrested for—

laiAt that point, defense counsel objected. Out of the jury’s presence, counsel stated that if the prosecutor asked one more question about prior arrests, he would move for a mistrial. The prosecutor countered that during direct examination, the defense had “opened the door” to questioning on the subject of arrests. The trial judge asked the prosecutor whether she had any proof that defendant had ever been advised of his rights in the past. The prosecutor said she did not. The judge said, “Well, I’m going to sustain his objection, because if you don’t have any proof that he was advised, I mean, you’re going to go into a bunch of arrests, I don’t think that’s going to be proper.” The State’s cross-examination then continued without further mention of arrests. Defendant now argues the trial court erred in failing to grant a mistrial based on the State’s improper questioning.

Every testifying witness in a criminal case, including the defendant, subjects himself to limited examination relative to his criminal convictions. LSA-C.E. art. 609.1 A. Generally, evidence of arrests not resulting in convictions is not admissible on the issue of credibility. LSA-C.E. art. 609.1 B; State v. Johnson, 94-1379, pp. 10-11 (La.11/27/95), 664 So.2d 94, 99; State v. Burks, 04-1435, p. 13 (La.App. 5 Cir. 5/31/05), 905 So.2d 394, 402, writ denied, 05-1696 (La.2/3/06), 922 So.2d 1176.

LSA-C.Cr.P. art. 770 provides, in part, that a mistrial shall be ordered when the district attorney makes a remark or comment within the hearing of the jury referring directly or indirectly to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[.]” Defendant argues the trial court erred in failing to grant a mistrial. But the record shows counsel never moved for a mistrial; he only threatened to do so.

In any case, the prosecutor’s line of questioning did not constitute reversible error. There was no specific mention of any prior. offenses for which defendant l,i>fiwas arrested, and defendant denied having a history of previous arrests. Any error committed by the trial court was harmless.

Defendant also complains that the jury was inflamed by the prosecutor’s assertion during closing rebuttal argument that he is a “serial robber.” Defendant argues that the prosecutor’s comment prejudiced the jury, and that the judge should have admonished the jurors to disregard it.

Defendant refers to the following portion of the prosecutor’s argument:

The reason' — -the reason that Mr. Veals talked to the police that night is because, in his mind, for whatever reason, these are his accomplishments. This is what he was doing for a living. He was out there being a man, and he thinks he’s out there and he’s supporting his family and he’s doing a good job by them. And so when he’s talking to the police, the reason he’s yawning and laughing and relaxing is because he— these are his accomplishments. He’s proud of himself. And I think that’s evidenced in those statements.
And he may think that God has forgiven him but the citizens of Jefferson Parish have to worry about our safety. Mr. Veals is a serial armed robber, like I said in my first closing, and he should not be allowed out on the streets because he’s not sorry for what he did and he did it, he did all three of them. He was involved in the first one, in the second one and the third one. It was his job; it was his profession. He doesn’t have another one.

Defendant did not preserve this issue for appeal, since he did not object at trial to the prosecutor’s remarks. LSA-C.Cr.P. art. 841. In any case, defendant’s argument has no merit.

In State v. Frank, 99-0553, p. 30 (La.5/22/07), 957 So.2d 724, 743 (citations omitted), the Louisiana Supreme Court explained:

[T]his court will not reverse a conviction or sentence on the ground of improper closing argument unless it is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Giving deference to the good sensibility and fairmindedness of juries ... and after reviewing the argument as a whole and the limited nature of the prosecutor’s objectionable comments therein, we can conclude that the comments did not influence the jury or contribute to the death sentence.

Lifln this case defendant was charged with three instances of armed robbery, each on a different day against a different victim. In calling defendant a serial armed robber, the prosecutor was merely referring to the evidence presented at trial. Giving deference to the good sensibility and fairmindedness of juries, and viewing the comment in the context of the prosecutor’s entire argument, we fail to find that the comment prejudiced the jury or contributed to the verdict.

Based on the foregoing, this assignment of error is without merit.

ERRORS PATENT DISCUSSION

Defendant requests an error 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. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matter was discovered:

At the time of sentencing, the trial court advised defendant, “You have two years to file for post conviction relief.” The trial court’s advisal was incomplete, since LSA-C.Cr.P. art. 930.8 A provides that a defendant has two years “after the judgment of conviction and sentence has become final” in which to file an application for post-conviction relief. We therefore remand the case to the trial court with instructions that it provide defendant with written notice of the provisions of Article 930.8, and to file written proof of said notice in the record. State v. Taylor, 04-90, p. 15 (La.App. 5 Cir. 5/26/04), 875 So.2d 962, writ denied, 04-1649 (La.11/19/04), 888 So.2d 193.

| ?7DECREE

Accordingly, for the reasons assigned herein, defendant’s conviction and sentence are affirmed. In addition, the case is remanded to the trial court to correctly inform defendant in writing of the prescriptive period contained in La. C.C.P. art. 930.8 and to file written proof of the notice in the record.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . This appeal pertains only to Patrick Veals.

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

      . Detective Russo explained that he conducted a separate interview for each armed robbery incident.

      . Detective Dyess only participated in the first interview.

      .Although defendant did not know Poochie’s real name at the time of the interview, it was established at trial that his name was John Williams.

      . Aniquia’s mother, Shandrika Lowe, testified that Aniquia was 16 years old in April, 2003.

      . The commitment reflects that the trial court properly advised defendant of the prescriptive period under Article 930.8. But where the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Claire RIEHM v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Jeffrey M. Slaughter, Christopher L. Slaughter, and the Hanover Insurance Company.
    No. 07-CA-651.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Jim S. Hall, Joseph W. Rausch, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Caroline D. Ibos, Lauren E. Brisbi, Attorneys at Law, Metairie, LA, for Defen-danVAppellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Plaintiff Claire Riehm appeals a judgment sustaining an exception of prescription. The trial judge rendered judgment in favor of defendants Jeffrey M. Slaughter, Christopher L. Slaughter, and State Farm Mutual Insurance Company dismissing plaintiffs petition for damages against these defendants with prejudice. For the reasons which follow, we reverse and remand.

This case arises from a motor vehicle accident that allegedly occurred on July 3, 2005 in Jefferson Parish. According to plaintiff, Jeffrey was operating a vehicle owned by Christopher when Jeffrey ran a red light and struck plaintiffs vehicle.

|sThe Louisiana Civil Code provides a one-year prescriptive period for delictual actions. La.C.C. art. 3492. Although the party pleading prescription ordinarily has the burden of proof, the burden is shifted to the plaintiff when the petition on its face reveals that prescription has run. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). Such is the case here. On its face, plaintiffs petition states that the accident occurred on July 3, 2005, yet this action was not commenced until July 12, 2006, nine days beyond the one-year prescriptive period. Plaintiff thus has the burden to establish that her claim was not prescribed.

The jurisprudence has recognized three theories upon which a plaintiff may rely to establish that prescription has not run: suspension, interruption and renunciation. Lima, supra, 595 So.2d at 629. Plaintiff relies on interruption.

In support of the contention that her claim has not prescribed, plaintiff relies on two theories, which she also presented in the trial court — solidary liability or tacit acknowledgment of the debt.

Regarding solidary liability, she contends . that because a timely lawsuit was filed against other defendants arising from a separate motor vehicle accident, that timely lawsuit interrupted prescription here. She alleges that both accidents caused neck injuries and the injuries that arose from both cannot be separated. Regarding tacit acknowledgment of the debt, she asserts that State Farm’s reimbursement to her insurer of property damage for her rented vehicle constituted an unconditional payment. Thus, there was a tacit acknowledgement of the debt, which interrupted prescription under Mallett v. McNeal, 05-2289 (La.10/17/06), 939 So.2d 1254.

We find, for the following reasons, that plaintiff met her burden under Mallett. Having reached this conclusion, we preter-mit a discussion regarding the alleged soli-dary liability.

|4It is undisputed that plaintiff was driving a leased vehicle from Enterprise-Rent-A-Car (Enterprise) at the time of the accident and that defendant State Farm issued a check for physical damage to Hanover, plaintiffs insurer, as reimbursement for the amount Hanover paid to Enterprise.

State Farm argues the payment was a settlement to a non-party and that it did not admit liability by simply reimbursing Hanover.

State Farm attached to its memorandum below a copy of its check to Hanover in the. amount of $5,460.93. It also attached a copy of an inter-company reimbursement notification form from Hanover. This was a request to State Farm for the amount Hanover paid for physical damage coverage^,460.93. The trial judge found, that the payment by the defendant to a non-party was a settlement and not an unconditional tender of payment. Thus, it did not interrupt prescription. We disagree.

Plaintiff argued that she was leasing a vehicle from Enterprise and under her lease agreement with Enterprise, she was primarily responsible for any damages and had to indemnify Enterprise. Thus, the payment constituted a payment for her benefit. Plaintiff attached to a memorandum below a copy of a lease agreement with Enterprise. However, that lease agreement was dated June 14, 2005 and stated she was to return the vehicle by June 21, 2005. It is unclear whether this was the particular lease agreement that was in effect at the time of the accident here on July 3, 2005. It is clear, however, that Hanover reimbursed Enterprise on behalf of plaintiff.

La.R.S. 22:661 provides that a “settlement” shall be construed as an admission of liability by the insured as follows:

No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property 1 sowned by another person shall be construed as an admission of liability by the insured, or the insurer’s recognition of such liability, with respect to any other claim arising from the same accident or event.

“Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be, extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted.” Mallett, supra, 939 So.2d at 1258 (citation omitted). “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464.” 939 So.2d at 1258. “Such an acknowledgment is not subject to any particular formality ... It may be written or verbal, express or tacit.” Id.

Mallett held that an unconditional payment of a property damage claim constitutes an acknowledgment sufficient to interrupt prescription and that the term “settlement,” as used in R.S. 22:661, is limited to a settlement or compromise as contemplated by La. C.C. art. 3071. 939 So.2d at 1256.

Mallett explained that in Lima v. Schmidt, 595 So.2d 624, 633, 634 (La.1992), it defined “a tacit acknowledgment as occurring when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability.” 939 So.2d at 1258. “Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments!:.]” Id. “[M]ere recognition of a disputed claim, conditional payments, and settlement or compromise offers or negotiations do not evidence an acknowledgment.” Id.

The court noted a settlement rather than acknowledgment of the debt occurred in Collins v. Capital Valve & Fitting Co., 409 So.2d 579, 580-81 |n(La.1982), where the court “held that the check issued by the insurer, coupled with the release executed by the third party claimant, clearly indicated that the parties intended a settlement of the property damage.” Id.

Mallett observed that R.S. 22:661 “does not state that no payment shall be construed as an admission of liability by the insured; it states that no settlement shall be construed as an admission.” 939 So.2d at 1260. (emphasis in original). “A settlement and a payment are two distinct things. Louisiana jurisprudence has consistently equated' a settlement with a transaction or compromise.” Id. In Mal-lett, the court commented that where the insurer simply pays a plaintiff for property damage and wrecker expenses, there is no settlement as envisioned by La. R.S. 22:661, and therefore, the statute does not apply. Id.

Here, despite State Farm’s argument to the contrary, there is no evidence of a settlement of the property damage to Enterprise. Thus, the issuance of a check was an unconditional payment.

In this case, however, unlike Mallett, the unconditional tender was made to a non-party.

But here the non-party — Enterprise— leased a vehicle that plaintiff drove at the time of the accident. We hold, under these circumstances, that it is of no moment that the payment was a reimbursement to plaintiff’s insurer for its payment to Enterprise. State Farm’s act of reimbursing plaintiffs insurer for plaintiffs benefit was a tacit acknowledgement of a debt that effectively lulled plaintiff into believing State Farm would not contest liability. See, Mallett, 939 So.2d at 1258 (citing Lima).

17Accordingly, for the reasons stated, the judgment sustaining the exception of prescription is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

      . Only these defendants filed the exception. Attorneys Christian Comarda and Michael G. Riehlman intervened, seeking attorney’s fees. In addition, plaintiff had also filed suit against the Hanover Insurance Company (also referred to as Hanover American Insurance Company) (Hanover) as her uninsured/under-insured insurer. In this case, the judgment dismissed plaintiff's petition as to the Slaughter defendants and State Farm. The judgment is appealable pursuant to La.C.C.P. art. 1915(A)(1), because as a judgment that dismissed a party it is final and appealable without the necessity for designation under Section (B). Bordelon v. Avondale Industries, Inc., 03-228 (La.App. 5 Cir. 5/28/03), 846 So.2d 993, 994, n. 1., writ denied, 03-2074 (La. 11/7/03), 857 So.2d 497. See also, La. C.C.P. art. 1911.


author: DAVID S. GORBATY, Judge. TOBIAS, J.,

text:
    Jennifer GRAY, et al. v. The GRAY INSURANCE COMPANY, et al.
    No. 2007-C-1606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.
    Writ Denied April 4, 2008.
    Leon A. Aucoin, Law Office of Leon A. Aucoin, Covington, LA, for Defendants/Appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

h Relators, the Gray Insurance Company (“GIC”), Brent Trauth (“Mr. Trauth”), and Preheat, Inc., seek supervisory review of the trial court’s judgment denying their exceptions of improper venue and prescription, and a motion for summary judgment filed by co-defendant, Progressive Security Insurance Company (“Progressive”). For the reasons set forth below, we grant the writ as to the exception of improper venue, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY:

Plaintiff, Jennifer Gray (“Ms. Gray”), filed suit in the Civil District Court for the Parish of Orleans for injuries allegedly sustained in an automobile accident, which occurred in Jefferson Parish on January 7, 2005. The petition alleges the joint and solidary liability of Mr. Trauth, the driver of the other vehicle, Preheat, Inc., Mr. Trauth’s employer and owner of the vehicle, GIC, the liability insurer of the vehicle, and Progressive, Ms. Gray’s uninsured motorist (“UM”) carrier.

12Progressive filed a motion for summary judgment arguing that there were no genuine issues of material fact that the value of Ms. Gray’s damages would not exceed the $4,000,000.00 liability coverage provided by GIC, which the trial court denied.

Relators filed, simultaneously with their answer, an exception of venue alleging that Ms. Gray named her UM carrier in bad faith for the purpose of creating venue in Orleans Parish, Ms. Gray’s domicile. The exception maintains that the accident occurred in Jefferson Parish, Mr. Trauth was domiciled in Plaquemines Parish, Preheat, Inc. was a Louisiana corporation with its registered office in Lafayette Parish, and GIC was a domestic insurer domiciled in Jefferson Parish.

Additionally, relators filed an exception of prescription pursuant to La. Civ.Code art. 3462, which provides, in part, that “[i]f action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” The record reflects that the accident occurred on January 7, 2005, and the defendants were served on or after January 26, 2007.

All matters were heard on September 21, 2007. In a judgment rendered November 15, 2007, the trial court denied Progressive’s motion for summary judgment finding that the amount of damages had not been sufficiently established, making it premature to grant summary judgment at that time. The trial court also denied relators’ exception of prescription, stating that the issue was moot in light of the denial of summary judgment. The judgment and reasons for judgment do not address the exception of venue. Relators note in their brief to this Court that they have contacted the trial court regarding a ruling on the exception of venue, but have not yet received a response.

I «DISCUSSION;

In the present case, the trial court determined that summary judgment was premature. As stated previously, a review of that judgment has not been sought by Progressive. Therefore, the judgment stands.

Exceptions of Prescription and Improper Venue:

Louisiana Code of Civil Procedure art. 76 provides, in pertinent part, “An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled, or in the parish where the accident or illness occurred.” The relevant portion of La.Code Civ. Proc. art. 73(A) states, “An action against joint or solidary obligors may be brought ... in the parish where the plaintiff is domiciled if the parish of plaintiffs domicile would be a parish of proper venue against any defendant under ... Article 76.... ”

Clearly, when Ms. Gray filed her petition for damages, alleging solidary liability among her UM carrier and the other defendants, venue was proper in Orleans, the parish of her domicile, pursuant to articles 73 and 76. However, the exception of prescription in this case is based on La. C.C. art. 3462, and the assertion that venue is improper is based on the allegation that Ms. Gray named her UM carrier in bad faith in order to create proper venue in Orleans Parish. A problem arises here because the trial court determined that the denial of summary judgment rendered the exception of prescription moot, but did not make a factual determination regarding bad faith, and did not specifically rule on the exception of venue that was before the court.

It can be argued that implicit in the trial court’s denial of summary judgment, is the finding that Ms. Gray was not in bad faith in naming her UM carrier. From a review of the record, it does not appear that such a finding would be clearly wrong. The record reflects that Ms. Gray named her UM carrier as a defendant in the original petition (not in response to the exception of improper | ¿venue) at a time when, as she claims, GIC had not disclosed its policy limits. There is nothing in the record showing bad faith on the part of Ms. Gray.

However, before the trial court can make a determination on the issue of prescription it must rule on the exception of improper venue. Therefore, the trial court’s declaration that the exception of prescription was rendered moot by its ruling on the motion for summary judgment was improper. A judgment must be rendered on the exception of venue, after a contradictory hearing, before the court rules on the exception of prescription.

In Haines v. Millet, 2006-0289, p. 1 (La.5/26/06), 950 So.2d 678, the. Louisiana Supreme Court remanded under similar circumstances, stating: “we cannot determine whether the trial court made a specific finding on whether plaintiff named his uninsured motorist carrier in bad faith solely for the purpose of obtaining venue in Orleans Parish. Accordingly, the case is remanded to the trial court to conduct a contradictory hearing on this issue and rule anew on the exception of improper venue. See Farrar v. Haedicke, 97-2923 (La.12/2/97), 702 So.2d 690.”

In Farrar, at the hearing on the venue exception, defendants contended that plaintiffs joined their uninsured motorist carrier solely for the purpose of making venue proper in the parish of plaintiffs’ domicile. Defendants argued that the tortfeasor’s liability insurer had policy limits of $1,500,000.00 and that plaintiffs acted in bad faith in joining the uninsured carrier. The trial court overruled the exception of venue. The Second Circuit Court reversed, finding that Union Parish (plaintiffs’ domicile) was a parish of proper venue under La. C.C.P. articles 73 and 76. The Louisiana Supreme Court remanded to the trial court to conduct a contradictory hearing on whether plaintiffs joined their uninsured motorist carrier in bad faith solely for the purpose of obtaining venue in Union Parish, and to rule anew on the exception of improper venue. The Court determined that the question |5of whether plaintiffs were in bad faith in joining their uninsured motorist carrier is one that should be decided, prior to trial, at the time of the contradictory hearing on the exception of improper venue.

CONCLUSION:

Thus, we grant relators’ writ and remand to the trial court for it to make a factual determination regarding bad faith as it relates to the issue of venue, and render a judgment on the exception of improper venue; only then can the exception of prescription be considered.

WRIT GRANTED; REMANDED.

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurs and assigns reasons.

hi respectfully concur.

Following the remand of Haines v. Millet, 06-0289 (La.5/26/06), 950 So.2d 678, the district court once again ruled as it had before. This court affirmed with one judge dissenting. The Louisiana Supreme Court once again reversed this court stating:

The judgment of the trial court is reversed, and the exception of improper venue is granted for the reasons assigned by the dissenting judge in the court of appeal. The matter is remanded to the trial court which is instructed to transfer the case to an appropriate venue.

Haines v. Millet, 07-1267 (La.10/5/07), 964 So.2d 375.

That which is missing from the history of Haines is what the dissenting judge on this court stated:

This matter comes before this court a second time on the issue of whether the plaintiff filed his suit in a proper venue. In writ number 2005-C-1412 in this court, a majority of the court found no error in the trial court’s ruling that venue was proper in Orleans Parish. The dissent in that writ stated in pertinent part:
... [T]he plaintiff/respondent has failed to demonstrate that his claims will exceed the $2,000,000.00 policy limits of the defendants/relators, Millet and Hilton Hotels Corporation. The plaintifl/respondent’s insurer, State Farm, provides plaintiff only 12$10,000.00 of uninsured/underinsured coverage. Since the accident did not occur in Orleans Parish, but rather Jefferson Parish, and the individual defendant (Millet) is domiciled in St. Charles Parish [sic], venue is proper in Jefferson, St. Charles [sic] or East Baton Rouge Parish. Farrar v. Haedicke, 97-2923 (La.12/2/97), 702 So.2d 690.
The Louisiana Supreme Court granted supervisory writs and in a per cu-riam remanded the matter to the trial court to determine whether the plaintiff had filed his suit in bad faith by naming his uninsured/underinsured automobile liability carrier in order to obtain venue in Orleans Parish. Haines v. Millet, 06-0289 (La.5/26/06), 950 So.2d 678.
The subject accident occurred in Jefferson Parish. The defendant, Hilton Hotels Corporation (“Hilton”), is a foreign corporation with its registered office in East Baton Rouge Parish and its principle business office in Jefferson Parish. Hilton’s insurer, the relator herein, is domiciled in East Baton Rouge Parish. The plaintiff is domiciled in Orleans Parish. Alen Millet, the driver of the Hilton vehicle, is domiciled in St. John the Baptist Parish.
From the record before us, the ultimate question is whether a plaintiff (plaintiffs counsel) must make a reasonable effort to determine whether the tortfeasor has adequate insurance or is adequately solvent before naming the plaintiffs uninsured/ underinsured liability insurer that results in the suit being filed in a venue that would not ordinarily be a proper venue under law but for the uninsured/ underinsured liability policy of the plaintiff.
Plaintiffs’ counsel testified that it is the policy of his office to always name his client’s uninsured/underinsured liability carrier when the plaintiffs injuries are significant. In the case at bar, the plaintiff, prior to the subject accident, was one hundred percent disabled primarily due to being Hepatitis C positive, having a hepatoma, having undergone a liver transplant, and having undergone knee surgery; he had previous back pain and post the subject accident was experiencing back and cervical pain. At the time the plaintiff filed suit some nine months post initial medical information, plaintiffs counsel was aware [sthat his client might have disc problems that ultimately would require surgery.
Ultimately, the gravamen of the dispute before the court is whether plaintiffs counsel had a duty to investigate whether Hilton could respond in damages to his client and ergo the extent of the solvency of Hilton before filing suit and to a lesser, but equally important, extent determine the policy limits of Hilton’s liability carrier. Plaintiffs counsel had been in contact with Hilton’s insurance adjuster regarding the property damage claim, which was paid. Plaintiffs counsel never broached with the insurer’s adjuster the subject of the quantum of the plaintiffs injuries or inquired about the policy limits of Hilton’s policy. Plaintiffs counsel counters that it was his experience that no defendant’s insurer will disclose policy limits until suit is actually filed, and/or alternatively, that an adjuster may only be assigned to deal with property damage and another adjuster is assigned to handle the personal injury claim.
As I understand the remand of the Supreme Court to the trial court, the trial court was to determine whether the plaintiff was in “bad faith” when he filed suit in Orleans Parish. I am aware that there exists many definitions of the phrase “bad faith” in our jurisprudence. Black’s Law Dictionary (8th Ed.2004) defines “bad faith” as “[djishonesty of belief or purpose <the lawyer filed the pleading in bad faith>.” Citing Restatement (Second) of Contracts § 205 cmt. d (1979), Black’s notes that one cannot list all types of bad faith, but it includes “evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.”
La. C.C.P. art. 863, relative to the signing of pleadings, in pertinent part, states:
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a | ¿good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
* * *
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee. Thus, the question becomes whether a
lawyer who after nine months (approximately eleven months post-accident/injury) fails to investigate adequately whether a defendant can respond in damages without naming a defendant who is contingently liable (i.e., liable only if the underlying tortfeasor and his/her/its insurer cannot respond in damages) violates the letter if not the spirit of article 863 as read in the context of what constitute “bad faith.” Here, the trier of fact must make a credibility call that may only be reversed if manifestly erroneous or clearly wrong. But also, a corollary question is whether a lawyer is ethically permitted to fail to reasonably and fully investigate a matter within a reasonable amount of time, and thereby appropriately file suit in a venue that would not ordinarily, under the facts of the case, be a proper venue. Considerations include, inter alia, the amount of time counsel has to investigate the claim and whether counsel can adopt a policy that he/she will always name his/her client’s uninsured/ underinsured liability insurer in a lawsuit and file the suit at the plaintiffs domicile that but for the uninsured/ underinsured liability insurance policy would not be a proper venue.
The trial judge apparently believed the plaintiffs counsel when he stated that he almost always named the plaintiffs uninsured/ underinsured liability carrier as party when he filed suit because, among other reasons, it 15reduced court costs. Certainly such could be viewed as a form of “good faith” which out of necessity precludes a finding of “bad faith.”
Weigh against this whether plaintiffs counsel knew or should have known as a matter of common sense and ordinary knowledge that Hilton was a major company with substantial assets whose financial well being could be easily ascertained by resorting to the internet or a stockbroker.
In view of Black’s Law Dictionary and the Restatement (Second) of Contracts, quoted above, I conclude that the trial court was manifestly erroneous, clearly wrong, and abused his discretion in the case at bar in holding that Orleans Parish was a proper venue given what plaintiffs counsel should have known and given the length of time he had to investigate the claim before he filed, and actually filed suit. The nature of counsel’s client’s injuries when weighed against the maximum recovery that a judge or jury could award that would be neither manifestly erroneous nor clearly wrong as a matter of law or would not subject the plaintiff to a reduction in a quantum award on a judgment notwithstanding the verdict must weigh in an attorney’s decision where to file suit. To view this case in any other manner would proverbially be said to be straining at a gnat and swallowing a camel. McNeeley[McNeely] v. Town of Vidalia, 157 La. 388, 343, 102 So. 422, 423 (La.1924); State v. Carter, 107 La. 792, 793, 32 So. 183, 184 (1902); World Trade Center Taxing District v. All Taxpayers Property Owners, and Citizens of World Trade Center Taxing District and Nonresidents Owning Property or Subject to Taxation therein, 05-0048, p. 17 [ (]La.App. 4 Cir. 2/1/05), 894 So.2d 1185, 1196, aff'd 05-0374 (La.6/29/05), 908 So.2d 623.
Accordingly, I would grant the relator’s application for supervisory writ, reverse the judgment of the trial court, and remand this matter to the trial court for transfer of the suit to a proper venue: Jefferson Parish, St. John the Baptist Parish, or East Baton Rouge Parish.

This court is bound by Haines.

The trial court erred in not following the Louisiana Supreme Court’s instructions to transfer this case to a court of proper venue. The trial court should only have rendered a judgment transferring this case to another venue and should |finot have ruled on anything else. Thus, I interpret this court’s decree as nothing more than a vacating of the trial court’s ruling on the exception of prescription; any ruling by the trial court on the summary judgment is similarly null and void. The prescription issue and summary judgment may only be ruled upon by a court of proper venue, which the Supreme Court has said is not Orleans Parish.

      . Progressive has not taken a writ from the trial court's judgment, and relators do not have standing to seek review of a judgment rendered against a co-defendant. We find Michelet v. Scheuring Security Services, Inc., 95-2196 (La.App. 4 Cir. 9/4/96), 680 So.2d 140, to be inapposite. However, because the issues are related, we will discuss the motion for summary judgment.

      . Plaintiff's uninsured/ underinsured policy limits were $10,000.00.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    Michelle Nunez NELSON and Terry Glynn Nelson, Sr., Individually and on Behalf of their Minor Daughter, Terriel Nelson, Terrell Nelson, Mary Nunez and Terrence Nunez v. THIBAUT HG CORPORATION d/b/a Higgins Gate Apartments and Discover Specialty Insurance.
    No. 2007-CA-0515.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.

      Richard K. Leefe, Leefe, Gibbs, Sullivan, Dupre’ & Aldous, LLC, Metairie, LA, and David R. Fine, Fine & Associates, PLC, New Orleans, LA, for Plaintiffs/Appellants.
    Michael J. Remondet, Jr., Scott F. Higgins, Jeansonne & Remondet, Lafayette, LA, for Defendants/Appellees.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

11 This appeal arises from the drowning death of a minor in an apartment complex swimming pool. The minor was not a resident of the apartment complex. The owner and insurer of the apartment complex filed a motion for summary judgment asserting that a duty was not breached as fences, postings, and light surrounded the swimming pool and that no duty was owed to the minor as he was trespassing. The trial court granted the motion for summary judgment. We find that no genuine issues of material fact exist and affirm the judgment of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Terry Nelson, Jr. (“Terry”) and some associates entered the Higgins Gate Apartments (“the Complex”) on May 15, 2004, allegedly to visit a friend’s grandmother and brother at night. Terry decided to get into the Complex’s swimming pool and subsequently drowned.

Michelle Nunez Nelson and Terry Nelson, Sr. filed a petition for damages on behalf of themselves, Terry’s siblings, and two cousins (collectively “the Plaintiffs”) against Thibaut HG Corporation, the owner of the Complex, and Discover Specialty Insurance Company, the owner’s insurer (collectively “the | ¡¿Defendants”) alleging gross negligence. The Defendants filed an exception of no right of action as to Terry’s two cousins asserting that they were not entitled to recovery pursuant to La. C.C. art. 2315.6. After receiving a joint motion to dismiss without prejudice, the trial court dismissed the two cousins.

The Defendants then filed a motion for summary judgment on the basis that the fence, postings, and lights fulfilled their duty and/or that they owed no duty to the Plaintiffs because Terry was trespassing. The trial court granted the Defendants’ motion for summary judgment. This timely devolutive appeal followed.

STANDARD OF REVIEW

The appellate courts review summary judgments using the de novo standard of review. Henry v. S. La. Sugars Co-op., Inc., 06-2764, p. 4 (La.5/22/07), 957 So.2d 1275, 1277. “Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate.” Id. “[I]f the pleadings depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is not genuine issue as to material fact,” then the “mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The burden of proof remains with the mover. La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden of proof at trial ... the movant’s burden” is “to point out ... an absence of factual support” for an element essential to the adverse party. La. C.C.P. art. 966(C)(2).

SUMMARY JUDGMENT

The Plaintiffs assert the trial court erred in granting the Defendants’ motion for summary judgment because they alleged that the swimming pool was not properly maintained, the gates were unlocked, and the fence was in disrepair.

|sThe Louisiana Civil Code provides:

[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La. C.C. art. 2317.1. Therefore, the Plaintiffs must prove that 1) the Defendants owned or had custody/care of the swimming pool; 2) the swimming pool was the cause-in-fact of Terry’s injuries; and 3) that the Defendants knew or should have known the swimming pool presented an unreasonable risk of harm. Graubarth v. French Mkt. Corp., 07-0416, p. 2 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664.

The Defendants do not dispute that they own or have custody/care of the swimming pool. It is also uncontested that the swimming pool was the cause-in-fact of Terry drowning. Thus, our analysis of whether the swimming pool presented an unreasonable risk of harm is determinative.

The duty owed by a landowner to his guests is governed by a reasonableness standard. Socorro v. City of New Orleans, 579 So.2d 931, 942 (La.1991). The test to determine whether a breach of a landowner’s duty has occurred is whether, in the management of his property, he has acted as a reasonable man in view of the probability of injury to others. Collins v. Whitaker, 29,324, p. 4 (LaApp. 2 Cir. 4/2/97), 691 So.2d 820, 823. A “landowner is not liable for an injury sustained which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner.” Annis v. Shapiro, 517 So.2d 1237, 1238-39 (La.App. 4th Cir.1987).4 In regards to a swimming pool, “[t]he danger presented, the risk of drowning, is an open and obvious one.” Id. at p. 3, 691 So.2d at 823.

The Defendants provided the affidavit of Michael Frenzel (“Mr. Frenzel”), a certified safety professional, who inspected the Complex’s swimming pool area. He stated that a metal picket fence over four feet tall and backed by wooden posts enclosed.the swimming pool on three sides with the remaining side enclosed by a building. Additionally, he attested that two gates secure the fence, while chicken wire also surrounds the swimming pool for additional protection. Mr. Frenzel specified that numbers alongside the swimming pool indicate the water depth. Finally, it was his opinion that “there were no defects in the pool or its enclosure that caused or contributed” to Terry’s death.

Homicide Detective, Ronald Ruiz (“Detective Ruiz”), was the first officer to respond to the report of Terry’s drowning. He stated that, upon arrival, “the fence to the pool was completely secure, including chains and padlocks on both entrances to the pool area.” Detective Ruiz noticed “exterior lighting around the pool area, locked doors from the building to the pool, and a secure gate around the pool.” He further noted depth indicators and signs reading, “Pool for Residents Only, No Trespassing” and “No Diving, Swim at Your Own Risk.”

The manager of the Complex, Kim Van Cott (“Ms. Cott”), stated that the swimming pool was not open. However, she observed depth indicators, a secure fence, lighting, and postings around the swimming pool area.

The Plaintiffs’ affidavits contend that: (1) the gates were not secure; (2) tiles were loose and broken; (3) scant lighting illuminated the swimming pool area; and (4) the swimming pool was full of green slime and algae. The affidavits submitted by Defendants document that the gates were secure and the swimming pool area |swas illuminated. As to allegedly broken tiles and green algae, we find that these are conditions that a reasonable person would have in a swimming pool that was closed as was the swimming pool at the Complex.

Given the evidence contained in the affidavits submitted by the Defendants, we do not find that the Complex’s swimming pool was maintained in an unreasonable manner. Therefore, it did not present an unreasonable risk of harm. Detective Ruiz as well as the other two affiants attested to the secure nature of the fence, the water depth indicators, postings, and lighting. Detective Ruiz stated that “[ejmergency personnel were forced to cut the locks on the fence in order to obtain access to the pool area.” The reasonable man would include these measures to protect people on his land from harm. The obvious risk of drowning was apparent. Thus, we find that no genuine issues of material fact exist as the Defendants did not breach a duty to the Plaintiffs.

DECREE

For the reasons mentioned above, we find that no genuine issues of material fact exist and affirm the judgment of the trial court.

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

hi write separately to address in more detail the summary judgment standard as it relates to the statements contained in the affidavits. In this case, Homicide Detective Ronald Ruiz stated in his affidavit that as the first officer to arrive as the decedent was being removed from the pool, he observed that “the fence to the pool was completely secure, including chains and padlocks on both entrances to the pool area.” Detective Ruiz further stated that emergency personnel were forced to cut the locks on the fence in order to access the area and treat the decedent. As the majority notes, Detective Ruiz’s sworn statement also included his observations that there was exterior lighting around the pool area; that the doors from the adjacent building to the pool were locked; that there were signs in the pool area which read “Pool for Residents Only, No Trespassing”, “No Diving, Swim at Your Own Risk”; and that there was a secure gate around the pool.

Similarly, Kim Van Cott, the manager of the apartment complex for ten years, stated in her affidavit that as of 5:00 p.m. on May 15, 2004, the date of the incident, no sections of the fence surrounding the pool were missing. Ms. Cott’s sworn statement corroborated Detective Ruiz’s observations that on the date in 12question, the pool was fenced securely, locked with chains and padlocks, and posted with the aforementioned signs. Finally, as the majority notes, the pool was not open even to residents until Memorial Day weekend.

Appellants submitted affidavits from Michael Carter, a seventeen year old friend of the decedent, and from Mary Nunez, the aunt of the decedent. Michael Carter’s affidavit contained statements with regard to conditions of the pool area in the past. Without specifying a date, the affidavit also contained statements that a hole in one of the gates securing the pool area was covered with chicken wire, and that the wire had been cut. Michael Carter further stated in his affidavit that several people went through the hole in the gate, but did not state on which date he made this observation.

Mary Nunez, who did not submit that she was a resident of the apartment complex, stated in her affidavit that “[o]n May 15, 2004, she went to the Higgins Gate Apartments and saw Terry Nelson and the status of the swimming pool.” Significantly, Ms. Nunez did not specify at what time on May 15, 2004 she was in the pool area of the apartment complex, nor did she state whether she saw the decedent before or after the incident. Ms. Nunez further stated that “[tjhere were two gates to the pool at the Higgins Gate on May 15, 2004, one was chained and one gate had no lock, chains or pad lock on the gate.” As previously noted, Detective Ruiz’s sworn statement indicated that emergency services personnel were forced to cut the locks in order to access the pool area.

It is well-settled that with respect to summary judgments, a fact is considered material “if it is essential to plaintiffs cause of action under the applicable theory of recovery and if without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail.” Grant v. American Sugar Refining, Inc., 2006-1180, p. 5 (La.App. 4 Cir.1/31/07), 952 So.2d 746, 748-49. “[Mjaterial facts are those that potentially insure or preclude recovery, affect |sthe litigant’s ultimate success, or determine the outcome of a legal dispute.” Id. at 749 (citing Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

Assuming Appellees owed a duty to the decedent, who was neither a resident nor a guest at the time of the incident, a material fact in this case is whether the pool area presented an unreasonable risk of harm. Considering all of the affidavits, Appellants have not demonstrated the existence of a material fact as to whether the pool area was secure immediately prior to the incident. Moreover, this Court has held that “when a dangerous condition is patently obvious and easily avoidable, it can hardly be considered to present a condition creating an unreasonable risk of harm.” Annis v. Shapiro, 517 So.2d 1237, 1239 (La.App. 4 Cir.1987) (finding that homeowners were not liable for injuries sustained by swimming pool repairer when he slipped on inside of drained swimming pool, which had slick surface due to the accumulation of leaves, algae, and slime).

The death of such a young person is a tragedy in any event. The Appellants’ affidavits, however, fail to identify a time frame and do not demonstrate factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. See La.C.C.P. art. 966(C); Grant v. American Sugar Refining, Inc., supra. Accordingly, I respectfully concur in the result.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Cedric Charles WASHINGTON.
    No. 07-852.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Cedric Charles Washington.
    Van Kyzar, District Attorney — Tenth Judicial District, ADA R. Stuart Wright, Natchitoches, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

bln this criminal case, pursuant to plea agreement, the Defendant pled guilty to possession of cocaine with intent to distribute, which included a ten-year sentencing cap. The trial court sentenced the Defendant to ten years at hard labor. The Defendant appeals his sentence alleging excessive sentence. For the following reasons, we affirm Defendant’s sentence.

FACTS AND PROCEDURAL HISTORY

On or about September 3, 2004, the Defendant, Cedric Charles Washington, was charged by bill of information with the following offenses: count 1, possession of a CDS Schedule II, namely cocaine, with intent to distribute, in violation of La.R.S. 40:967(A); and count 2, obstruction of justice, attempt to destroy evidence, in violation of La.R.S. 14:130.1. Thereafter, on May 16, 2006, the Defendant entered into a plea agreement which included a ten-year cap as his maximum sentence. On March 2, 2007, the trial court sentenced the Defendant to ten years at hard labor.

At his sentencing on March 2, 2007, the Defendant orally motioned for an appeal. In his appeal to this court, the Defendant cites the following assignment of error: “The sentence of 10 years hard labor was excessive in light of the facts of the case.”

ANALYSIS

In his sole assignment of error, the Defendant claims that his sentence is excessive. However, La.Code Crim.P. art. 881.2(A)(2) states, “The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” It is uncontested that the Defendant entered into a plea agreement with the State. It is further uncontested that |?the plea agreement included a ten-year sentencing cap. In the instant case, the Defendant was sentenced within the terms of his plea agreement; therefore, he is precluded from seeking a review of his sentence on appeal. La.Code Crim.P. art. 881.2(A)(2). See also State v. Myles, 04-264 (La.App. 3 Cir. 9/29/04), 882 So.2d 1254, where this court held that the defendant could not seek appellate review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. Furthermore, a review of the record does not reveal any averments by the Defendant challenging the sufficiency of the plea agreement or terms under which it was executed.

The Defendant alleges that, as part of his plea agreement, it was agreed that he would be able to seek review of his sentence on appeal. Despite the Defendant’s allegations, our review of the plea agreement, which the Defendant signed, reveals that there was no such reservation of the right to appeal for anything other than jurisdictional defects. Furthermore, the Defendant does not raise any jurisdictional challenges in his brief; therefore, there is no basis to review his sentence.

However, the sentencing transcript does reflect the fact that the trial judge made the following statement: “[y]ou are advised that you can appeal any or all of these proceedings.... ” Although the trial court may have given the Defendant the idea or impression that he was entitled to appeal his sentence, he is in fact precluded from doing so under La.Code Crim.P. art. 881.2(A)(2). See Myles, 882 So.2d 1254. See also State v. Senterfitt, 00-415 (La.App. 3 Cir. 9/27/00), 771 So.2d 198, writ denied, 00-2980 (La.9/28/01), 798 So.2d 107, where this court held that defendant failed to prove that the guilty plea that included a sentencing cap was not voluntary, even though defense counsel failed to inform the defendant that he would not be able |sto appeal his sentence if he entered into a plea agreement.

Based on the foregoing reasons, the Defendant is precluded from seeking review of his sentence.

CONCLUSION

The Defendant’s sentence is affirmed.

AFFIRMED.