author: THIBODEAUX, Chief Judge.

text:
    Mrs. Cherie BENJAMIN, et al. v. FIRST HORIZON INS. CO., et al.
    Nos. 07-1321.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      John Allen Jeansonne, Jr., Scott F. Higgins, Jeansonne & Remondet, Lafayette, LA, for Defendant/Respondent, Bucyrus Erie Manufacturer, Inc., et al.
    Dr. Edward A. Robinson, III, Baton Rouge, LA, for Plaintiffs/Appiicants, Cherie Benjamin, Leroy Benjamin, Joann Benjamin, Lionell Benjamin, Cheryl Holmes, Michael Benjamin, and Torence Benjamin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and GLENN B. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|! This case involves a product liability suit filed in 1987 by the family of the deceased, Mr. Leroy Benjamin (the Benja-mins), against Bucyrus Erie, the manufacturer of a crane that fell on Mr. Benjamin in 1986, killing him instantly. In 2007 both parties filed motions for summary judgment. Following a hearing on the motions, the trial court denied the motion of the Benjamins and granted the motion of Bucyrus Erie. The Benjamins filed this appeal on the granting of the manufacturer’s motion for summary judgment, and the Benjamins filed a writ application, No. 07-1206, on the denial of their own motion for summary judgment. In the interest of judicial economy, we have consolidated the writ application with this appeal. For the reasons set forth below, we affirm the judgments of the trial court.

I.

ISSUES

We must decide whether the trial court erred in granting Defendants’ Motion for Summary Judgment and in denying Plaintiffs’ Motion for Summary Judgment.

II.

FACTS AND PROCEDURAL HISTORY

Leroy Benjamin, at age fifty-five, was fatally injured on the job with Merrick Construction in July of 1986 when the boom of a crane fell on him as he walked under it. Prior to the accident, the boom had frozen up and would not move up or down. At the time of the accident, the crane was elevated but not in use. Rather, two crane operators, Victor Lemoine (Lemoine) and Roger Ducote (Ducote), were in the cab troubleshooting the problem with the frozen boom. The employees had been told that the boom was frozen and that the men should not cross under it |2while the operators were diagnosing the problem. The men were told that if tools were needed from the supply shed, they should walk behind the crane, not under it. Both operators, Lemoine and Ducote, issued warnings to everyone in the area not to walk under the boom.

The crane had two independent safety locking devices: a brake on the boom hoist drum and a mechanical pawl and ratchet. Either device working alone would have kept the boom from falling. In troubleshooting the frozen boom, wherein the brake was frozen to the drum, the two operators inside the cabin of the crane ultimately disengaged both devices. Du-cote was at the lever of the pawl and ratchet trying to boom up and down while Lemoine gradually released the tension on the brake by turning a nut with a wrench. The boom still would not move. Lemoine and Ducote then took the pan off the gear box to check the chain, which was still in tact. While they checked the gear box, the boom fell to the ground. When the boom fell, Mr. Benjamin and Mr. Phillip Ducote, both carpenters at Merrick, were underneath the boom. Phillip Ducote knew that the crane was frozen up and had walked over to talk to supervisors nearby. He thought he was clear of the boom. Mr. Benjamin was walking toward Phillip Du-cote and the supervisors and was directly under the boom. Mr. Benjamin was struck and died instantly, and Phillip Du-cote was struck and suffered a broken leg and ankle. The supervisors were not injured.

The crane had been purchased new and delivered to Merrick in July of 1961. It had been in use there for twenty-five years and had been associated with no other accidents. Following the accident in 1986, Mr. Benjamin’s wife, Mrs. Cherie Benjamin, filed a product liability suit in 1987 against the manufacturer on behalf of herself, the decedent Mr. Benjamin, and their adult children. There were numerous 1 adelays in the litigation. Twenty years later, the parties filed cross motions leading to this appeal and consolidated writ application.

III.

LAW AND DISCUSSION

Standard of Review

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(C)(1). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

A defendant’s burden of proof on a motion for summary judgment does not require him to negate all essential elements of the plaintiffs claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claims, actions, or defenses. La. Code Civ.P. art. 966(C)(2). Thereafter, if the plaintiff fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

In this case, the 1986 accident is governed by pre-1988 product liability law. The Benjamins cite Clark v. Jesuit High School, 96-1307 (La.App. 4 Cir. 12/27/96), 686 So.2d 998, and Allen v. Traffic Transport Engineering Inc., 496 So.2d 1122 (La. App. 4 Cir.1986), writs denied, 501 So.2d 208 (La.1987), which state the plaintiffs burden in a product liability case: to prove that there was a defect in the Rdesign or manufacture of the product, that the product was in normal use, that the defect caused an unreasonable risk of harm, and that the plaintiffs injury was caused by the defective product.

The Benjamins further cite Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986), regarding design defects. A product may be unreasonably dangerous because of its design for any one of three reasons: (1) A reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product. This is the same danger-utility test applied in determining whether a product is unreasonably dangerous per se; (2) alternative products were available to serve the same needs or desires with less risk of harm; or (3) Although the utility of the product outweighs its danger-in-fact, there was a feasible way to design the product with less harmful consequences. Id.

With regard to a design defect, it was not disputed that the crane had been in service with Merrick Construction for twenty-five years without incident and that, at the time of this accident, it was being used to construct a culvert box. Therefore, a reasonable person could not conclude that the danger in using the crane outweighed its utility. Accordingly, the crane was not unreasonably dangerous per se. Further, Benjamin offered no evidence that there was an alternative design that was safer or presented less risk of harm, nor that there was a feasible way to design this product with less harmful consequences. In fact, this crane had two independent safety mechanisms.

More specifically, Bucyrus’ expert in mechanical engineering, Dr. Gerald D. Whitehouse, who inspected the crane and its component parts, testified by | sdeposition that the crane, a Series Two, Model30-B Crawler, was an all-purpose piece of equipment that could be rigged as a shovel, a dragline, a clamshell, or a lifting crane. It had a lattice boom, meaning that the boom itself looked like lattice work, with steel members in the configuration of X’s and Vs. The boom was operated by Ducote the day before the accident. Lemoine was the primary operator of the crane. On the day of the accident, it was being used as a lifting crane. Dr. White-house reported that the accident was not caused by the design of the Bucyrus Erie crane, nor by the lack of instructions in the manual. He stated that there were two different locking devices available that would have prevented the boom from falling: the brake on the boom hoist drum and the mechanical pawl and ratchet, which Dr. Whitehouse described as follows:

The engine powers a set of gears in the ■ gear train, and these gears then are connected to the shafts.... The boom is operated by the boom hoist drum. On the boom hoist drum you have a series of wraps of wire rope or cable, in laymen’s terms. This cable is wrapped around the drum. The drum has an internal expanding clutch and an external contracting [sic] brake. Now, what this means is that if you want to brake the drum for the boom hoist, then the brake grabs the drum from the outside. If you want to go up or down, the clutch is inside and it goes out and contacts the drum, and then the power then rotátes the drum. It either rotates it backwards, which will raise the boom, or it rotates forward, which will lower the boom. That’s very simplistic.
The pawl mechanism is an engagement — we call it a ratchet and pawl. The pawl is the finger that goes into the ratchet.... So that the ratchet is a circular member with teeth in it. The pawl is the member that engages the tooth, or teeth. It engages one tooth. So if the pawl is engaged, you cannot lower the boom. It is a mechanical device, and the boom cannot be lowered. Now, if the pawl is engaged you can raise the boom. It’ll ratchet. You’ve probably seen this in a little boat device that pulls your boat up onto the trailer.

_k- • • •

The purpose of that is if engaged there is really no way the boom can fall. The device is designed so that for the boom to fall with the pawl engaged you would have to have shearing of the teeth or shearing of the metal pawl itself.

In this case, there was no shearing. In fact, the boom was locked in an elevated position, with the brake frozen to the drum. However, when the operators disengaged both safety locking devices; the boom fell as a result of the operators’ action. With regard to alternate designs or safer designs, Dr. Whitehouse further testified that the crane was manufactured and shipped in 1961 and was the state of the art in mechanical technology at that time. He also reported that the instructions in the manufacturer’s manual were consistent with industry standards at that time. Dr. Whitehouse stated that he had been involved with the crane industry since the 1960’s, that he had particularly watched the evolution of the Bucyrus Erie Series 30B, and that compared with other crane models, the 30B was state of the art and in fact better than a lot of manufacturers’ cranes. He described other models which had a “live boom” that could fall. However, with regard to the subject crane, he stated:

Now, this crane has the control system that if I’m booming up, the clutch is engaged so the drum can boom up. And if I let that handle on that air valve go, just let it go, what’s going to happen? It’s going to go to the neutral position, and that engages the brake on the boom and the boom stops, so the boom cannot fall. And that was consistent with state of the art technology in 1961.

Dr. Whitehouse further testified that nothing in the maintenance records that he reviewed indicated any major problems with the crane since it had left the manufacturer in 1961. He stated that if the devices provided were properly used, the crane did not create an unreasonable hazard for the safety of the people in the area or for the operator working on the crane. Dr. Whitehouse further testified that if you compared the “1961 model Bucyrus Erie with a BLA Salema-Hamilton crane, which |7is a similar type, or a Northwest crane, similar type, the instructions and warnings are about the same.” He further stated that the Bucyrus Erie crane could be rigged for a forty-five ton capacity, and that the manufacturer of large equipment expects the user to be qualified to operate and maintain such equipment.

Ducote, one of the only two operators who used the crane, and who is still a crane operator with Merrick, testified by deposition in 2007 that the crane was still in service, and that he had no knowledge of Merrick ever sending the crane back to the manufacturer for work on it, or of any representative of the manufacturer ever coming to Merrick to work on the crane. Ducote stated that the crane was put into use following the accident and it had been in use ever since. Accordingly, the Benja-mins failed to show that they could carry their burden at a trial on the merits of proving the first element of their case, a design defect, under the criteria stated in their brief.

More specifically, the danger does not outweigh the utility of the crane, which had been operating for over forty-five years at the time of the summary judgment hearing; the crane had state of the art technology in 1961, and there was no alternative or safer design. In fact, the crane’s design was safer than that of many being manufactured at the time. Further, there was no evidence that the subject crane could have been re-designed to make it safer. Moreover, counsel for the Benja-mins stated at the hearing, in response to the court’s question about giving up on the design defect issue, that, “we’re not going into the mechanics of the design itself ... we would concede that.”

With regard to the second element stated by the Benjamins, the trial court questioned whether the crane was in “normal use” at the time of the accident. Counsel for Bucyrus Erie pointed out that the crane was not in use at all. In fact, it | ¿was out of use and awaiting repairs, and both Ducote and Lemoine instructed everyone in the area to stay out from under the boom while they diagnosed the problem. Counsel for the Benjamins admitted at the hearing that the crane was not in normal use at the time of the accident:

Your Honor, if you take what the learned defense counsel says normal use, that’s what we are questioning even right there. Your honor, this — this crane was not in the normal use. This crane was not being used at the time. In other words, what I’m saying is that it’s not like it was operating.

In spite of this admission at the hearing, the Benjamins argue in brief that the crane was in “normal use” where normal use encompasses not just use precisely in accordance with the manufacturer’s instructions. Rather, it includes all reasonably foreseeable uses and misuses of a product. The Benjamins cite Clark, 686 So,2d 998, for this proposition. However, in that case a gun manufacturer was found not liable for a student’s loss of an eye when another student brought a BB gun to school and knowingly misused it by pointing it at the injured party and pulling the trigger.

The Benjamins point out that questions of normal use usually arise in cases alleging a failure to warn, and they therefore contend that Bucyrus Erie is liable under a failure to warn theory. The Ben-jamins assert that the defendant should have warned the users of the crane that the boom would fall from an elevated position if both safety measures were disengaged simultaneously. They obtained a one-and-a-half page affidavit from a safety management company to that effect in 1988. They also obtained a more substantive affidavit from mechanical engineer, Dr. Joel Hebert, in 2006, twenty years after the accident, adding that the manufacturer should have warned users not to leave the boom locked in an elevated position. The Benjamins further asserted that Bucyrus Erie should have warned nonusers of the dangers of walking under an elevated boom. They assert that warning stickers should have been | ¿placed inside of the cabin, outside on the arm of the boom, and in the manual. They further assert that the manufacturer should have provided a warning that yellow tape should be placed around the boom during maintenance. The trial judge found no duty to warn in this case. We agree with the trial judge.

A product may be unreasonably dangerous if the manufacturer fails to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. Winterrowd v. Travelers Indem. Co., 462 So.2d 639 (La.1985). However, there is no duty on the part of the manufacturer to make a product that is foolproof, and there is no duty to warn where the danger and the manner of avoiding danger is common knowledge and is known by the injured party. Whitacre v. Halo Optical Prod., Inc., 501 So.2d 994 (La.App. 2 Cir.1987).

In the present case, the danger of walking under an elevated boom is open and obvious. Phillip Ducote testified that he knew better than to stand under an elevated crane, that it was an unwritten rule, and he thought that he was far enough away from it when he stopped to talk to supervisors nearby. As to users of the crane, operators Lemoine and Ducote, both testified that they knew that the boom would fall if both the brake and the pawl were disengaged, and both stated that warnings would have made no difference because they knew what they were doing, trying to free up a frozen boom.

Citing Smithhart v. AAA Contracting Co., 260 So.2d 8 (La.App. 1 Cir.), writ denied, 261 La. 1051, 262 So.2d 38 (1972), Bucyrus Erie argues that the manufacturer is not liable when intervening actions by employees are the cause of the plaintiffs injuries. There, the plaintiff sued Bucyrus Erie as the manufacturer of a different type of crane, alleging metal fatigue and construction defect in the boom. The court determined that |inthere was no evidence of substandard materials when the crane left the manufacturer, and that the accident was the result of the action of the operator who unknowingly raised the boom to the breaking point, contrary to sound and safe operating procedure. Likewise, in Hebert v. Brazzel, 403 So.2d 1242 (La. 1981), the court held that the plaintiffs failed to establish that a valve was defectively manufactured, that the valve stem was probably broken by excessive torque and not due to an internal weakness, and that an ordinary oil field worker would have appreciated the danger involved in greatly multiplying the torque to a valve stem by turning it with a wrench.

In Frey v. Travelers Ins. Co., 271 So.2d 56, (La.App. 4 Cir.1972), writ denied, 273 So.2d 840 (La.1973), the court held that the manufacturer of a crane was under no duty to anticipate and to warn against methods of repairing a crane which would create a defect. There, the manufacturer was not liable for the death of a workman who was working in the basket of a cherry picker when it fell to the ground because of an improper procedure adopted by the employer in repairing the cable and socket of the crane. In Scott v. Terrebonne Lumber Co., 479 So.2d 410 (La.App. 1 Cir. 1985), writ denied, 485 So.2d 61 (La.1986), the court found that the manufacturer of lumber was not liable when a worker used knotty number two lumber as scaffolding; the lumber was not in normal use, and misuse by the plaintiff caused his injuries.

We find these cases analogous to the present case. In this tragic accident, the boom did not fall as a result of a defect in the boom during normal use. It fell during troubleshooting efforts by operators who disengaged both safety features on the crane. The manufacturer had no legal duty to warn under the circumstances of this case.

_biv.

CONCLUSION

Based upon the foregoing, the trial court’s judgment is affirmed. All costs of appeal are assessed to the plaintiffs.

AFFIRMED.

      . Some of the principles established in Hal-phen were legislatively overruled by the Louisiana Products Liability Act, Acts 1988, No. 64. The effective date of this act was September 1, 1988 and has no bearing on this case.


source: Caselaw Access Project

license: Public Domain

text:
    Cherie BENJAMIN, et al. v. FIRST HORIZON INS. CO., et al.
    Nos. 07-1206.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    John Allen Jeansonne, Jr., Scott F. Higgins Jeansonne & Remondet, Lafayette, LA, for Defendant/Respondent, Bucyrus Erie Manufacturer, Inc., et al.
    Dr. Edward A. Robinson, III, Baton Rouge, LA, for Plaintiffs/Applicants, Cherie Benjamin, Leroy Benjamin, Joann Benjamin, Lionell Benjamin, Cheryl Holmes, Michael Benjamin, and Torence Benjamin.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and GLENN B. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

For the reasons expressed in the consolidated case of Mrs. Cherie Benjamin, et al. v. First Horizon Ins. Co., et al., 07-1321 (LaApp. 3 Cir. 3/5/08), 978 So.2d 1121, we deny the writ application of the plaintiffs-relators, Cherie Benjamin, et al.

All costs of appeal are assessed to the plaintiffs.

WRIT DENIED.


author: SULLIVAN, Judge. COOKS, J.,

text:
    Maurice BAROUSSE, et al. v. WESTERN WORLD INSURANCE COMPANY, et al.
    No. 2007-1264.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    David Benoit, Attorney at Law, Breaux Bridge, Louisiana, for Plaintiffs/Appellants, Maurice Barousse, Michael Barousse and Millie Barousse.
    Daniel A. Reed, Seale, Smith, Zuber & Barnette, L.L.P., Baton Rouge, Louisiana, for Defendant/Appellee, Western World Insurance Company.
    Anthony J. Milazzo, Jr., Hebbler & Gior-dano, L.L.C., Metairie, Louisiana, Kelly E. Balfour, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellee, Progressive Security Insurance Company.
    Melvin A. Eiden, Rabalais, Hanna & Hebert, Lafayette, Louisiana, for Defendant/Appellee, ACI Portable Toilets, LLC, Shelton Cormier.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

| , Plaintiffs appeal the trial court’s grant of summary judgment in favor of Western World Insurance Company (Western World) and denial of summary judgment in their favor. We affirm.

Facts

On September 5, 2005, Maurice and Michael Barousse were injured, as they operated their motorcycles on Louisiana Highway 31 in St. Martin Parish, when a truck driven by Shelton Cormier made an improper left turn. Mr. Cormier was in the course and scope of his employment driving his employer’s vehicle when the accident occurred. Maurice, Michael, and Maurice’s wife sued Mr. Cormier and his employer, ACI Portable Toilets, LLC, and its insurer, Western World, to recover damages.

Western World filed a motion for summary judgment, seeking a judgment declaring that its policy provides minimum coverage of $10,000 per person and $20,000 per accident with respect to the Barousses’ claims. The Barousses filed a motion for summary judgment, seeking a judgment recognizing that Western World’s policy provides single limit coverage of $100,000 for this accident.

After a hearing on the motions for summary judgment, the trial court took the matter under advisement. Thereafter, the trial court granted summary judgment in favor of Western World and denied the Barousses’ motion for summary judgment. The Barousses appeal.

Issue Presented

The Barousses urge that the trial court’s judgment contravenes La.R.S. 32:900(B)(2)(d), which provides:

An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another |2policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance.

Discussion

The Western World commercial policy provides single limit coverage of $100,000 for each accident. However, the policy also contains an endorsement that drops the $100,000 coverage to $10,000 per person and $20,000 per accident for any driver who is not a “Listed Driver” in the policy. Western World’s motion for summary judgment is based upon the Listed Drivers Coverage endorsement to ACI’s policy. The Listed Drivers Coverage endorsement provides in part:

The following exclusion is added:

This insurance does not apply to any “accident” or “loss” while a covered “auto” is driven by anyone other than a listed driver.
For Liability Coverage, this exclusion applies only to the extent our Limit of Insurance exceeds the limits of liability required, in any particular case, by any state’s financial responsibility or similar law.

The Barousses contend that this provision violates La.R.S. 32:900(B)(2)(d), arguing that La.R.S. 32:900(B)(2)(d) “only allows an owner to exclude a named person as an insured under a commercial policy if the owner maintains in full force and effect a policy which would provide equal coverage to the excluded person.” They urge that the Listed Drivers endorsement is not an endorsement but an exclusion that “attempts to skirt the provisions of La.R.S. 32:900(B)(2)(d) by reducing coverage.”

Western World’s policy does not exclude Mr. Cormier from the coverage provided to his employer. As stated by the Bar-ousses in their argument, the Listed Drivers ■ endorsement reduces the coverage provided for Mr. Shelton to the minimum [.■¡required by Louisiana’s financial responsibility law. Thus, Western World’s policy provides different limits of coverage for listed drivers and unlisted drivers. It does not conflict with La.R.S. 32:900(B)(2)(d), as it provides the minimum coverage required by Louisiana law for drivers who are not listed in the policy. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94),- 634 So.2d 1180.

The Barousses also argue that the endorsement which reduces coverage provided for Mr. Cormier from $100,000 to $10,000 per person and $20,000 per accident is ambiguous. They first assert that the policy is ambiguous because the endorsement is an exclusion and is inconspicuously placed in an endorsement, not the main body of the policy. They cite cases decided by non-Louisiana courts in support of this contention. Two of the cases cited are inapplicable because the decisions therein are based upon jurisprudential rules which require that such exclusions be conspicuous, and there is no comparable Louisiana statute or jurisprudential rule. Furthermore, although the Listed Drivers Coverage endorsement is not contained in the main body of the policy, it was completed by hand to identify the insured and provide the effective date of the endorsement and was signed by a representative of ACI. Therefore, the endorsement was made conspicuous to ACI’s representative.

The Barousses assert two additional reasons why the policy is ambiguous. They argue that the title of the endorsement, “Listed Drivers Coverage,” is misleading because it actually excludes coverage and that the policy is ambiguous because the application signed by ACI provides in part, “I agree to promptly report all full and part time drivers” but neither it nor the policy define the term “promptly.”

Western World counters that the policy is not ambiguous, citing the following provisions contained in the Listed Drivers Coverage endorsement:

|/This insurance does not apply to any “accident” or “loss” while a covered “auto” is driven by anyone other than a “listed driver?’
The following is added to Section IV— CONDITIONS
To add a driver to the list of drivers, you must notify your agent or insurance producer in writing of the name, date of birth, date of hire and driver’s license number of the additional driver before that driver operates a covered “auto.”

Louisiana Civil Code Article 2050 provides that “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” Any ambiguity arguably created by the term “promptly” in the application is resolved when the policy is construed as a whole. The Listed Drivers Coverage endorsement clearly and unambiguously provides what “promptly” means and what ACI had to do to obtain $100,000 coverage for its drivers. Therefore, we need not determine whether the “promptly” is ambiguous. La.Civ.Code art. 2050. See also Halphen v. Borja, 06-1465 (La.App. 1 Cir. 5/4/07), 961 So.2d 1201, writ denied, 07-1198 (La.9/21/07), 964 So.2d 338. This assignment is without merit.

Disposition

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the Barousses.

AFFIRMED.

COOKS, J., concurs in the result and assigns additional reasons.

COOKS, J.,

concurs in the result and assigns additional reasons.

hi concur in the result reached by the majority and specifically note La.R.S. 32:900(B)(2)(d) requires “owners” to secure and maintain “another” policy for the person excluded in an equal amount in cases involving commercial policies. It does not require the primary or excess insurer, as in this case, to do anything, nor does it subject said insurer to additional liability beyond the terms of the contract in the event an owner fails to comply with the statutory mandate. Plaintiff may have a viable claim, based on La.R.S. 32:900(B)(2)(d), but that claim is assertable only against the owner who acquired the commercial policy which triggered the statutory mandate.


author: PICKETT, Judge. COOKS, J.,

text:
    Eddie J. GUILBEAUX v. The HOUSING AUTHORITY OF the CITY OF OPELOUSAS, et al.
    No. 2007-1235.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Robert Brinkman, Attorney at Law, Leslie J. Schiff, Schiff Law Corp., Opelou-sas, LA, Robert U. Goodman, Attorney at Law, Shreveport, LA, for Plaintiff-Appellant, Eddie J. Guilbeaux.
    Jimmy L. Dauzat, Dauzat, Falgoust, Ca-viness, and Bienvenu, LLP, Opelousas, LA, Colin Derrick Sherman, Huey Law Firm, LLP, Mobile, AL, for Defendant-Appellee, Julie Lavergne Miles, Alvin Do-natto, Housing Authority of the City of Opelousas, Donald Green, Sr., Debra Mayo, Mary Doucet.
    Matthew Joseph Farley, Attorney at Law, New Orleans, LA, for Defendants Appellee,, Travelers Casualty & Surety Company of America.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe plaintiff-appellant, Eddie Guil-beaux, appeals a judgment of the trial court, following a jury trial, awarding him $67,331.50 for accrued annual leave but dismissing his claims for breach of contract and improper termination.

STATEMENT OF THE CASE

Eddie Guilbeaux was the long-time executive director of the Housing Authority of the City of Opelousas (“the Housing Authority”). On September 26, 2005, the Board of the Housing Authority (“the Board”) met in a special meeting to discuss Mr. Guilbeaux’s “work ethic.” The meeting was called to order, and the Board then went into executive session. Mr. Gu-ilbeaux and his attorney were present at the executive session. Before coming out of executive session, the Board voted to terminate Mr. Guilbeaux’s contract by a vote of three to one, with one member abstaining. The Board then adjourned from executive session and adjourned the meeting without any further action. The members of the Board had the locks on all the doors changed, required Mr. Guilbeaux to turn in his keys, and hired a new executive director.

Mr. Guilbeaux sued the Housing Authority, its members, Mary Doucet, Alvin Do-natto, Deborah Mayo, Julie Miles, and Donald Green, and its insurer, St. Paul Travelers Insurance Company, alleging he was fired without cause. He also argued that he was entitled to his full salary and benefits through August 14, 2009, pursuant to a contract with the Housing Authority. The Housing Authority argued that they fired Mr. Guilbeaux with good cause and were not obligated to pay under the terms of the contract since he had breached the contract by failing to properly perform his duties. Before the trial, Ms. Doucet and Mr. Donatto were dismissed from the suit. The matter proceeded to a jury trial.

| ¡/Trial was held on February 13, 14, and 28, and March 1, 2007. The jury, responding to interrogatories, found that Mr. Guil-beaux proved that he had a valid contract with the Housing Authority, but that he failed to prove that he complied with the terms of the contract or that the Housing Authority terminated the contract without serious grounds. The jury found that Mr. Guilbeaux was not entitled to his salary, health and life insurance benefits, future leave, and retirement benefits, but did find that he was entitled to accumulated annual leave. The jury awarded $67,331.50 for accumulated annual leave. Finally, the jury found that the Housing Authority did not violate the provisions of La.R.S. 23:631, which concerns timely payment of wages upon termination. Finally, the jury found that Ms. Mayo, Ms. Miles, and Mr. Green were not guilty of bad faith in the termination of Mr. Guilbeaux’s contract. A judgment in conformity with the jury’s verdict was signed on May 2, 2007.

Mr. Guilbeaux filed a Motion for a Judgment Notwithstanding the Verdict, or alternatively, for a New Trial, which was denied in a judgment signed June 27, 2007. Mr. Guilbeaux now appeals.

ASSIGNMENTS OF ERROR

The appellant, Eddie Guilbeaux, alleges five assignments of error:

1. The jury erred in finding that plaintiff had not complied with the terms of his contract and that the Opelou-sas Housing Authority had terminated his contract upon serious grounds.
2. The jury erred in finding that plaintiff was not entitled to salary and fringe benefits under his contract.
3. The jury erred in finding that the board of commissioners had not acted in bad faith in terminating his contract.
4. The Trial Court erred in dismissing the claims against Alvin Donatto and Mary Doucet.
5. The jury erred in finding that the Housing Authority of Opelousas had l3not violated the provisions of La. R.S. 23:631.

DISCUSSION

The supreme court" set forth the standard of review for an appellate court when considering a factual finding by the trial court in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989) (citations and footnote omitted):

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where tHére are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the foldings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

In his first assignment of error, the appellant claims the jury erred in finding that he had not proven that he complied with the terms of his contract or that the Board had no serious grounds to terminate his contract. The argument begins with |4a claim that the jury heard no evidence that Mr. Guilbeaux failed to perform his duties as executive director. We disagree. The testimony of the members of the Board set forth several reasons why the Board found Mr. Guilbeaux’s service as executive director was unsatisfactory. Finding that the jury had sufficient evidence to support their findings, we will not disturb their finding of fact.

In the second part of the argument on this assignment of error, Mr. Guilbeaux claims the trial court erred in failing to instruct the jury on the applicability of La.R.S. 42:6, which states that a public body may take no binding action in executive session. He claims that the Board’s violation of this policy indicates their bad faith. We shall not address this argument because Mr. Guilbeaux failed to object to the trial court’s failure to instruct the jury about La.R.S. 42:6.1, either before the jury retired to deliberate or immediately after the jury was instructed by the trial court. La.Code Civ.P. art. 1793(C); Abshire v. Wilkenson, 01-75 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158. In fact, when the trial court informed the attorneys at the jury charge conference that he would not include an instruction about La.R.S. 42:6.1, Mr. Guilbeaux’s counsel acquiesced in the court’s decision. He also failed to object when the court circulated the final jury instructions among the parties. His attempt to make the instruction an issue in post-trial memorandum after the jury had reached a verdict is untimely.

In his second assignment of error, Mr. Guilbeaux argues that if we find merit in his first assignment of error, we must therefore increase the damage award to include those elements of his compensation that the jury failed to award. He also argues that he should be awarded the full amount of his accrued annual leave of $135,205.68, rather than the lower amount of $67,331.50. Having found no merit in | f¡his first assignment of error, we find no error in the jury’s finding that Mr. Guil-beaux was not entitled to any portion of his salary or other benefits. We will address the issue of whether the jury awarded the proper amount of accrued annual leave.

Mr. Guilbeaux introduced evidence that at the time he was fired he had 3541.27 hours of accumulated annual leave, which the Board allowed him to accumulate without limit. Since his salary at the time of his dismissal was $38.25 per hour, he argues that the proper amount of annual leave benefits should be increased to $135,205.68. The Board argues that he was paid for 480 hours following his dismissal. They also argue that civil service rules allow accrual of only 300 hours of accumulated annual leave. Thus, they claim that the payment for 480 hours more than compensated Mr. Guilbeaux for his accumulated annual leave allowed. If the 480 hours is not viewed as payment, however, the board argues that 300 hours at $38.25 per hour is $11,475.00, and the amount awarded clearly exceeds that amount and should not be disturbed. The jury was also presented with evidence that Mr. Guilbeaux kept track of the time he took off from work without any oversight. The suggestion was that he could have inflated the numbers, though there was no evidence to support that claim.

Louisiana Revised Statutes 42:421(B) states in pertinent part:

B. No limitation shall be placed upon the amount of annual leave which any employee of the state or of any state agency may accrue during the period of his employment; provided, however, that any employee of the state or of any state agency shall accrue annual leave at the same rate as is provided for members of the classified service of the state by the Civil Service Commission; and provided, further, that any employee or ex-employee of the state or of any state agency may be paid for accrued annual leave amounting to the same maximum as is provided for members of the classified service of the state by the Civil Service Commission as approved by the governor after his separation from his | ^office or employment if the annual leave has been accrued under established leave regulations and an attendance record has been maintained for the employee by his supervisor.

Louisiana Civil Service Rule 11.10(b) states:

(b) No terminal payment for annual leave earned under these Rules shall exceed the value of 300 hours, computed on the basis of the employee’s hourly rate of pay (includes base supplement) at the time of his separation. The hourly rate of pay for employees who are on detail shall not include the employees pay in the detail position.

We find that the maximum amount that the jury should have awarded for accrued annual leave is 300 hours. Since the Board did not appeal the jury’s verdict or answer the appeal of Mr. Guilbeaux, we will not reduce the jury’s award.

In his third assignment of error, the appellant argues, in a very cursory manner, that the members of the Board acted in bad faith in terminating his employment. Mr. Guilbeaux was asked to turn over the property which belonged to the Housing Authority, such as keys, credit cards, and a vehicle, by the members of the Board. Other than the violation of La.R.S. 42:6.1, he provides no evidence of the bad faith of the members of the Board. We find that' the jury’s verdict is supported by the evidence. Thus, we find no manifest error in the jury’s determination that Ms. Mayo, Ms. Miles, and Mr. Green did not act in bad faith.

Furthermore, even if the trial court erred in dismissing Ms. Doucet and Mr. Donatto from the suit before the trial, the jury’s verdict and the evidence support that this was harmless error. Considering that the allegations against them were less serious than those against the other commissioners, since they never actually voted to terminate Mr. Guilbeaux, we cannot find that the jury would have found that Ms. Doucet or Mr. Donatto acted in bad faith. Thus, Mr. Guilbeaux’s fourth assignment of error lacks merit.

^Finally, Mr. Guilbeaux argues that the jury erred in failing to award attorney fees and penalties for the Board’s violation of La.R.S. 23:631, and the trial court erred in not granting a JNOV on this issue. Louisiana Revised Statutes 23:631 states, in pertinent part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.

(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have, made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

(3) The provisions of this Subsection shall not apply when there is a collective bargaining agreement between the employer and the laborer or other employee which provides otherwise.

B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.

We have found that the jury’s findings regarding termination of the contract were not erroneous, and there was a legitimate dispute about the amounts owed to Mr. | sGuilbeaux that were only settled after presenting evidence to a jury. We cannot say that the jury erred in finding no violation under La.R.S. 23:631. Mr. Guil-beaux’s fifth assignment of error lacks merit.

CONCLUSION

The judgment of the trial court is affirmed in all respects. The appellant is cast with all costs of this appeal.

AFFIRMED.

COOKS, J., concurs in the result and assigns additional reasons.

COOKS, J.,

concurs in the result and assigns additional reasons.

| plaintiff argues his termination was not proper because under La.R.S. 42:6, a public body may take no binding action in executive session. He further argues there was no dispute regarding the fact that the Housing Authority terminated Plaintiffs contract during the executive session; and as a result, the trial judge should have handled this matter as an undisputed fact, applying the provisions of La.R.S. 42:6 to these undisputed facts and holding the contract was not legally terminated. While I find validity in this argument, Plaintiff failed to timely voice his objection to this defect by seeking to enjoin the termination in advance of filing the present suit. He also did not file a motion for summary judgment asserting his legal entitlement to immediate reinstatement because of the improper termination. He additionally could have, though belatedly, urged after the Defendants rested, that a directed verdict was appropriate because Defendants failed to establish the termination was legally valid. Although Plaintiff vociferously urges that public policy compels that we “do the right thing” and follow R.S. 42:6, we are procedurally barred from taking such action.

Plaintiff has also argued the basis for the termination was not the same as that used at trial. Again, this may be so. However, Plaintiff failed to take advantage of the procedural remedies available to him prior to and during trial. There were a number of procedural avenues Plaintiff could have taken: (1) he could have filed a motion in limine to prevent admission of evidence and enlargement of the pleadings; |j>(2) he could have objected to admission of the evidence during the trial as beyond the reasons actually used by the Board to terminate Plaintiffs employment; and (3) he could have requested an instruction to the jury in line with Voitier v. Church Point Wholesale Beverage Co., 99-1777 (La.App. 3 Cir 4/5/00), 760 So.2d 451, writ denied, 00-1920 (La.9/29/00), 770 So.2d 350. Having failed to avail himself of his procedural remedies below, Plaintiff cannot now seek redress at this level.

      . According to our computations, this amount should be $135,453.58.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Troy McCLOUD.
    No. 07-KA-936.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2008.
    Writ Denied March 24, 2008.
    Rehearing Denied April 14, 2008.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Frank A. Brindisi, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Troy McCloud, Angola, LA, in proper person, pro se.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

| ¡¡The defendant has appealed the trial court’s ruling that he validly waived his right to trial by jury. For the following reasons, we affirm the judgment of the trial court.

PROCEDURAL HISTORY:

This is defendant’s second appeal. In his first appeal, this Court conditionally affirmed defendant’s conviction and sentence for distribution of cocaine within 1,000 feet of a school, a violation of LSA-R.S. 40:981.3, and remanded the matter for an evidentiary hearing to determine whether defendant validly waived his right to a jury trial. State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, writ denied, 05-1450 (La.1/13/06), 920 So.2d 235. This Court instructed the trial court to vacate defendant’s conviction and sentence if it found there was no valid jury waiver and to grant defendant a new trial. However, if the trial court found there was a valid jury waiver, the trial court was instructed |4to affirm defendant’s conviction and sentence and allow defendant the right to appeal the adverse ruling. Id.

On remand, the trial court held an evi-dentiary hearing on June 1, 2006 and on November 15, 2006 judgment was rendered finding defendant knowingly and intelligently waived his right to a trial by jury. Thus, defendant’s conviction and sentence were affirmed. Defendant was granted an out-of-time appeal on August 29, 2007.

LAW AND DISCUSSION:

The facts of this case were set forth in this Court’s opinion on defendant’s first appeal, and because the facts of the offense are not at issue in this appeal, they are not included herein. See State v. McCloud, 04-112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498.

Defense counsel has filed an An-ders brief, recognizing that the only potential issue in this appeal concerns whether defendant made a knowing and intelligent waiver of the right to trial by jury. Defense counsel provides that it appears that the decision of the trial court was not an abuse of discretion and moves this Court to grant her Motion to Withdraw and to conduct an errors patent review. Counsel asserts in her Motion to Withdraw, which is attached to her brief, that she has conducted a conscientious and thorough examination of the record herein and found no non-frivolous issue upon which to arguably support an appeal.

The State responds that defense counsel’s brief satisfies all requirements for an Anders review. It further responds that defendant’s jury trial waiver was valid and presents no issue supporting an appeal.

|fiThe defendant filed a pro se brief claiming the state failed to prove he validly waived his right to jury trial.

A defendant in a non-capital case may waive his right to a jury trial provided he knowingly and intelligently does so. LSA-C.Cr.P. art. 780(A). “The waiver must be express ánd is never presumed.” State v. Ruffin, 02-798, p. 12 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 633, writ denied, 03-3473 (La.12/10/04), 888 So.2d 831. “Although it is preferred for the trial judge to advise the defendant personally on the record of his right to a jury trial and have the defendant waive the right personally on the record, the Louisiana Supreme Court has refused to mandate this method as an absolute rule.” Id.

While the trial judge must determine whether the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a BoykinAike colloquy. Id. A trial judge is not obligated to conduct a personal colloquy inquiring into the defendant’s educational background, literacy, and work history. State v. Allen, 05-1622, (La.App. 1 Cir. 3/29/06), 984 So.2d 146 (citation omitted).

At the evidentiary hearing regarding defendant’s waiver of his right to a jury trial, defendant’s former counsel, John Thomas, testified. Mr. Thomas stated that he remembered the trial very well and recalled having discussions with defendant about his right to a jury trial. Mr. Thomas testified that he told defendant it was his choice whether to have a jury or a judge trial. However, Mr. Thomas strongly recommended that defendant choose a jury trial based on the type of case it was. Mr. Thomas testified that the jury actually came into the room before defendant decided he did not want a jury trial. Once defendant told Mr. Thomas he did not | fiwant a jury trial, Mr. Thomas informed the court defendant did not want a jury trial and they proceeded with a bench trial. Mr. Thomas explained that he made defendant aware that he would present the case on his behalf and explained the voir dire process to him, including that he would have the right to exclude a number of jurors with peremptory challenges. However, Mr. Thomas testified that it was defendant’s decision to waive the jury.

Mr. Thomas testified defendant was lucid and appeared to understand what he was doing when he had these discussions with defendant. He stated that discussions about the jury trial occurred prior to the day of trial.

After being questioned by the trial judge at the hearing, Mr. Thomas agreed that defendant was fully aware of his right to a trial by jury and made his own decision to waive this right. The trial judge asked Mr. Thomas if he had explained to defendant the advantages and disadvantages of a jury trial and of a judge trial and Mr. Thomas responded,

Yes. And Mr. McCloud was, compared ,to most of the clients I deal with, Mr. McCloud was very savvy legally, he had filed his own federal lawsuit, and he had done a number of pleadings on his own, and I thought he was quite aware of what his rights were.

[7At the hearing on remand, defendant also testified. He testified that he did not recall the trial judge advising him of his right to a jury or judge trial and did not recall Mr. Thomas advising him of his rights to a judge or jury trial at any time. He explained that he only had one conversation with Mr. Thomas before trial and did not remember Mr. Thomas saying anything to him regarding having a jury trial. He testified that Mr. Thomas did not want to talk to him. He stated that he never told Mr. Thomas about the facts of his case prior to trial. He further testified that he was not aware he could have a jury trial and explained that he did not know the difference between the jury trial and judge trial on the day of trial. He found out the difference later. Defendant did not recall the jury being in the courtroom. Defendant testified it was Mr. Thomas’ choice to waive the jury trial and to have a judge trial.

The matter was taken under advisement and later a judgment was rendered holding that defendant knowingly and intelligently waived his right to a jury trial.

The testimony of Mr. Thomas supports the judgment that there was a valid waiver of the jury trial. Based on this testimony, we find defendant’s contention that the state failed to prove that he validly waived his right to jury trial to be without merit. Additionally, after reviewing the record on remand, we find that the record does not reveal any non-frivolous issues for appeal and counsel has complied with her obligations under Anders, supra.

As such, defense counsel’s Motion to Withdraw is granted.

ERROR PATENT DISCUSSION:

Defendant received an errors patent review upon his original appeal; accordingly he is now only entitled to an errors patent review of the record on|sremand. State v. Onstead, 05-410 (La.App. 5 Cir. 1/17/06), 922 So.2d 622 (citation omitted).

Our errors patent review of the record indicates that the judgment finding defendant validly waived his right to jury trial was not signed by the same judge who held the evidentiary hearing on this issue. LSA-R.S. 13:4209 A provides:

In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all of the testimony is in writing. If it is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo.

At the conclusion of the evidentiary hearing, the judge stated he was going to take this matter under advisement and further stated:

... having sat through that trial, obviously it was apparent to me that Mr. Thomas did have a very good working knowledge of the facts of the case, and was able to represent the defendant in a very very adequate manner, in a way that he could not have done, had he not taken the basic steps of the case when it came down to the defendant and his testimony.

This matter was assigned to Division E of the 24th Judicial District Court for the Parish of Jefferson. Judge Greg Guidry presided over defendant’s trial and the evidentiary hearing on remand. Judge Guidry was then elected to this Court and the judgment was signed by the judge who was appointed to sit in Division E until the vacancy was filled. Since all the evidence and testimony on this limited issue was in writing, the successor judge was empowered by statute to decide the case from the evidence in the record.

Thus, although our review of the record indicated the judgment was signed by a judge other than the one who presided over the evidentiary hearing, this is allowed by statute and no corrective action is needed.

\ .CONCLUSION:

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

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . In McCloud, the following was noted:
      The minute entry for November 11, 2003, the day of trial, reflects that ‘The Defendant waived his rights to a jury trial.’ The transcript of that proceeding shows that the following exchange took place just before the commencement of trial:
      MR. THOMAS:
      Your Honor, Mr. McCloud informed me as the jury was coming into the room that he had changed his mind and wanted to go with a Bench trial.
      THE COURT:
      Well, it’s certainly his prerogative.
      MR. THOMAS:
      I apologize to the Court that we didn't notify you earlier, but it is Mr. McCloud's choice.
      THE COURT:
      Well, as long as he is aware that once the trial begins — and it will begin as soon as the State calls its first witness — that he can't change his mind once again on that.

        McCloud, 04-1112 at 6, 901 So.2d at 503-04.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Clifton B. AYCHE.
    No. 07-KA-753.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2008.
    Rehearing Denied April 14, 2008.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Laura S. Schneidau, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for PlaintifflAppellee.

      Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Clifton Ayche, Jackson, Louisiana, pro se.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

hThe defendant Clifton B. Ayche timely appeals his possession of cocaine conviction, a violation of La.R.S. 40:967(C) and his 30-year enhanced fourth felony offender hard labor sentence. Mr. Ayche was originally charged with possession with intent to distribute cocaine, a violation of La.R.S. 40:967(A). The jury convicted him of possession of cocaine, a responsive verdict to the charged offense. Mr. Ayche was sentenced to five years imprisonment at hard labor. That day, the state filed a fourth felony habitual offender bill of information. The defendant denied the allegations. Later, after a hearing, the trial judge found that Mr. Ayche was a fourth felony offender. He vacated the original sentence, and sentenced the defendant to 30 years imprisonment at hard labor without benefit of probation or suspension of sentence. On appeal defense counsel assigned as error the trial judge’s denial of the motion to suppress the evidence, the imposition of an ^excessive sentence, and error patent. Clifton Ayche filed a supplemental pro se brief raising issues regarding the habitual offender proceeding. For the reasons that follow, we affirm the conviction and sentence. We remand with instructions.

FACTS

The defendant filed motions to suppress evidence and statements. At the pretrial suppression hearing, the state presented one witness — Detective Eric Dufrene. He testified as follows. He is a Jefferson Parish Detective in the narcotics division. On September 1, 2004, he and Detective Klien were patrolling a high crime, high drug area for which the department had received numerous citizen complaints regarding the illegal use of narcotics. The detectives were in plain clothes. They wore jackets, which identified them as police. They were in an unmarked Crown Victoria police unit with tinted windows. He and Detective Klien spotted the defendant and another male standing in what he was almost positive was the 1000 block of Carmadelle Street. The two men appeared to be clearly exchanging an object in a hand-to hand transaction. It was “pretty dark” at the time. There were other officers in the area who were also in unmarked vehicles.

Detective Dufrene stated that he decided to approach the two men because of the high-crime character of the area and the fact that the officers had frequently observed these hand-to hand-transactions. The officers pulled up their unit a few feet from the two subjects. The detectives exited the unit, walked toward the subjects and identified themselves as police officers. Then, the subjects immediately ran. He ran after the defendant while Detective Klien chased the other subject in the opposite direction. He believed the defendant ran up | ¿Carmadelle Street to Cholly when he discarded a clear plastic bag of crack cocaine approximately 10 seconds after the chase began. The defendant was probably 10-to-12 feet from Detective Dufrene when the defendant dropped the object. Detective Dufrene immediately picked up the bag as he ran behind the defendant and continued his foot chase. He retrieved a clear plastic bag with numerous rock-like objects, which were consistent with crack cocaine. He radioed other officers for assistance. He believed the other officers arrived at the intersection of Cholly and Garden Road or Cholly or Carma-delle. They continued south into the front yard of a residence. According to Detective Dufrene, at one point when Mr. Ayche turned between two houses, he threw two clear plastic bags, which were obviously “weighted with something” because one stayed on the roof while the other one rolled down. Detective Dufrene believed that Detective Matthews stopped to retrieve two clear plastic bags. Detective Dufrene saw that these bags contained off-white rock-like objects consistent with crack cocaine. These items later tested positive for cocaine. Meanwhile, Detectives Dufrene, Chase, and Delsa continued their foot pursuit through the yard. Detective Dufrene lost sight of the defendant when the detective doubled back around the block to cut him off. Detectives Chase and Delsa, however, maintained visual contact of the defendant. The defendant was captured approximately one to two minutes after the initial stop. After Detective Dufrene advised the defendant of his rights, he told Detective Dufrene the drugs were not his and he ran because he had parole or probation charges.

The trial judge found that Detective Du-frene was a credible witness. He denied the motion to suppress.

At trial, the state presented the testimony of Detectives Darryl Delsa, Curtis Matthews, and Shane Kline in addition to Detective Dufrene. Detective Dufrene Ifiidentified State’s Exhibit 1-A as the object he retrieved. Detective Matthews identified the objects that he retrieved as State’s Exhibit 1-B. Andrea Travis, a forensic science expert, testified that both specimens in State’s Exhibit 1 tested positive for cocaine. The total weight was seven grams. Lieutenant Bruce Harrison, an expert in the field of use, packaging, distribution and evaluation of narcotics, testified that the narcotics evidence in this matter was more consistent with possession with intent to distribute than possession for personal use.

ASSIGNMENT OF ERROR NUMBER ONE

It was error to deny the motion to suppress.

DISCUSSION

The defendant argues that at the time the officers approached him, there was no reasonable suspicion or probable cause to stop him. The state disagrees.

At trial, the state presented pertinent evidence on the suppression issue through the testimony of Detectives Delsa, Matthews, and Kline in addition to Detective Dufrene. Detectives Dufrene and Kline, however, were the only detectives involved in the initial encounter with the defendant. Their testimony, which was corroborated by the other detectives, presents substantially the same facts and circumstances surrounding the seizure at issue as was indicated by Detective Dufrene’s testimony at the hearing on the motion to suppress.

Although not required to do so, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing, in determining the correctness of the trial court’s pretrial ruling on a motion to suppress. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 122, cert. denied, Leger v. Louisiana, — U.S.-, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116; State v. Green, 94-887 (La.5/22/95), 655 So.2d 272)).

We have reviewed the pertinent evidence given at the trial of the instant case. While the evidence adduced at trial does not affect the result we reach in the instant case, we have taken into consideration Detective Kline’s testimony at trial, in which he explained that he and Detective Kline observed “what we believed to be a hand to hand narcotics transaction.” We have also taken into consideration Detective Dufrene’s trial testimony that he has about eight years experience with the Sheriffs Office. See, e.g. State v. Beals, 410 So.2d 745, 747 (La.1982) (The court took into consideration the trial fact that the defendant was a resident of premises named in a search warrant).

In a hearing on a motion to suppress, the state bears the burden of proof in establishing the admissibility of evidence that is seized without a warrant. La. C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075.

Law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops which permit officers to stop and interrogate a person who is reasonably suspected of criminal activity. State v. Becnel, 04-1266 (La.App. 5 Cir. 5/31/05), 904 So.2d 838, 852 (citations omitted). The Terry standard, as codified in La.C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and |7demand that the person identify himself and explain his actions. State v. Becnel, 904 So.2d at 852 (citation omitted).

Under the Fourth Amendment, a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. State v. Boyer, 07-0476 (La.10/16/07), 967 So.2d 458, 469 (citations omitted). In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts must look at the totality of the circumstances of each case, a process which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. State v. Boyer, 967 So.2d 469-70 (quotations omitted; citations to quoted material omitted). Police do not have to observe what they know to be criminal behavior before investigating; the requirement is that the officers have a reasonable suspicion of criminal activity. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989.

Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidents of crime. State v. Burns, 877 So.2d at 1076 (citation omitted). Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. State v. Walker, 06-1045 (La.4/11/07), 953 So.2d 786, 792 (quoting Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) with approval).

In State v. Bums, supra, this court upheld the denial of a motion to suppress the evidence after finding the police had reasonable suspicion to conduct an Isinvestigatory stop when the defendant was observed standing in the middle of the street in a high-crime area. The defendant noticed the unmarked unit as police presence and started to walk away. As the defendant was walking away, he kept looking back towards the officers. The officer exited his vehicle and the defendant ran. This court determined that the defendant’s unprovoked flight from the officers in a high-crime area provided the requisite reasonable suspicion to justify the investigatory stop. Compare, State v. Temple, 02-1895 (La.9/9/03), 854 So.2d 856, 861 (Court held that reasonable suspicion for a stop was more than “looking nervous” and sitting on a porch in a “high crime area.”).

In the present case, testimony was presented that after the experienced detectives received narcotics complaints Clifton Ayche was observed in a high-crime, high-drug area in what appeared to be a hand-to-hand narcotics transaction. Upon the approach of the detectives, who were wearing clothing that identified themselves as officers, the defendant fled.

We hold that the experienced officers’ observation of an apparent drug deal in a high drug crime area followed by the defendant’s flight upon the approach of two police officers gave the police the requisite reasonable suspicion to pursue and detain him. Compare, State v. Walker, supra, 953 So.2d at 791-92 (“Officer Schnapp’s observation of an apparent drug deal followed by the defendant’s flight on approach of the ‘stacked patrol’ gave the police the requisite .reasonable suspicion, i.e., minimal level of objective justification, to pursue and detain their suspect.”).

Additionally, we find that the discarded bags of narcotics were properly seized as abandoned property. When property is abandoned prior to any unlawful intrusion into a citizen’s right to be free from governmental interference, the property may be lawfully seized. It is only when a defendant is stopped without | treasonable causé or when the stop without reasonable cause is imminent that the “right to be left alone” is violated, thereby rendering the seizure of any abandoned property unlawful. State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 97-98 (citation omitted).

Thus, the trial judge did not err in denying the defendant’s motion to suppress the evidence.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court imposed an excessive sentence.

DISCUSSION

The defendant argues his 80-year sentence at hard labor is unconstitutionally excessive, claiming that the facts of the case do not warrant the virtual life sentence imposed. The state responds that the defendant’s sentence was not constitutionally excessive based on the nature of the offense, the defendant’s criminal background, and similar sentences that have been upheld in analogous cases.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered constitutionally excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lagarde, 07-123 (La. App. 5 Cir. 5/29/07), 960 So.2d 1105, 1115 (citing State v. Lobato, 603 So.2d 739 (La.1992)).

In reviewing a sentence for exces-siveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, while recognizing the trial court’s wide discretion. State v. Lagarde, supra (citation omitted). The trial judge is afforded wide discretion in determining a sentence, and the appellate hncourt will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.

Trial judges are granted great discretion in imposing sentences and a sentence will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-69 (citations omitted). The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Lagarde, 960 So.2d at 1117 (citing State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131). In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Lagarde, 960 So.2d at 1115 (citation omitted).

The defendant was convicted of possession of cocaine and found to be a fourth felony offender, with three predicate convictions of possession of cocaine. As such, the defendant faced a sentencing range of 20 years to life imprisonment without benefit of probation or suspension of sentence. La.R.S. 15:529.1(A)(l)(c)(i); LSA-R.S. 15:529.1(G). The defendant received a 30-year sentence, which is at the lower end of the sentencing range. In imposing this sentence, the trial judge specifically noted that he presided over the recent trial, was familiar with the facts, and was of the opinion that the state had strong evidence of the charge of possession with intent to distribute cocaine. The trial court noted the pattern of cocaine possession and believed that the defendant deserved a stiff sentence.

We have previously held that a similar sentence was constitutional for a similarly, although not identically, situated offender. In State v. Williams, 02-1016 (La.App. 5 Cir. 2/25/03), 841 So.2d 936, 946-47, 944-45, writ denied, 03-2205 (La.8/20/04), 882 So.2d 571, the defendant argued that three of his four felony convictions were for possession of small amounts of cocaine, which did not merit the penalty imposed. And he argued he had a history of non-violent drug offenses. This court did not find the defendant’s enhanced 30-year sentence as a fourth felony offender with an underlying conviction for possession of cocaine to be excessive.

We find that the trial judge did not abuse his discretion in sentencing the defendant given the defendant’s criminal history.

PRO SE SUPPLEMENTAL ASSIGNMENT

The defendant filed a pro se supplemental brief arguing that documents and exhibits were not properly certified and authenticated; the state failed to prove identity regarding two of the predicates; the trial judge erred in relying on a non-conviction as a predicate; and, the trial judge erred in using a predicate conviction that had been previously enhanced under the habitual offender statute.

DISCUSSION

The state filed a habitual offender bill of information seeking to enhance the sentence on the underlying conviction of possession of cocaine. The bill alleged that the defendant was a fourth felony offender, having been previously convicted of possession of cocaine and sentenced in case numbers 92-2382, 97-2299, and 94-2794. Mr. Ayche denied the allegations. The hearing was held on April 12, 2006.

On June 1, 2005, before the hearing, defense counsel filed an objection to the bill, asserting that the guilty plea sentence in 92-2382 could not be used as a predicate because the plea was a non-conviction taken under former La.R.S. 40:983. During the hearing, on April 12, 2006, defense counsel raised this |12objection. The trial judge allowed the 92-2382 plea conviction to be used as a predicate.

That same date, defense counsel filed a second objection to the bill, reurging this objection and adding the following insofar as the convictions in numbers 97-2299 and 92 — 2382:(1) The 97-2299 sentence could not be used as a predicate because the sentence was previously enhanced on September 8, 1997 in a habitual offender proceeding. (2) The state failed to introduce properly certified copies of the minute entries of a purported probation revocation in 92-2382. During the hearing, defense counsel objected to the admission of the penitentiary pack from the Department of Corrections (“pen pack”) (Exhibit 9) as evidence of probation revocation in case number 92-2382 on the basis that only the cover sheet on the attached documents was certified rather than each included document. The trial judge found that the exhibit was properly certified and authenticated. Defense counsel also objected to the admissibility of some of the exhibits on the basis they were not certified. The trial judge concluded these were properly certified. Defense counsel, however, did not object at the hearing that the use of the 97-2299 predicate conviction was incorrect because the sentence was previously enhanced.

The trial judge concluded the state met its burden and found the defendant was a fourth felony offender. He vacated the underlying sentence and imposed the enhanced 30-year sentence.

To prove habitual offender status, the state must initially prove the prior felony convictions, and that the defendant is the same person who was convicted of the prior felonies. State v. Thomas, 06-654 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, State ex rel. Thomas v. State, 07-0464 (La.11/21/07), 967 So.2d 1153 (citation omitted). The latter can be established by - expert testimony 113matching the defendant’s fingerprints with those from the prior proceedings. Id.

La.R.S. 15:529.1(F) provides:

F. The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of LouisF ana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

Various methods of proof establishing identity have been recognized as sufficient to sustain the state’s burden of proof,, including testimony of witnesses, expert opinion as to fingerprints, and photographs contained in duly authenticated records. State v. Mays, 05-2555 (La.5/26/06), 929 So.2d 1231,1232 (per curiam).

The state presented its fingerprint expert, Sergeant Louis Munguia, who testified that he took the defendant’s fingerprints the day of the hearing and identified these fingerprints in State’s Exhibit 1. Thereafter, the state introduced into evidence certified and authenticated documents to show that the defendant was the individual who had been previously convicted and sentenced in the predicate offenses. Sergeant Munguia identified all pertinent fingerprint evidence in the predicate documents as the defendant’s fingerprints.

Case Number 97-2299

On appeal, Mr. Ayche complains that the state failed to meet its burden because it did not match his fingerprints taken the day of the hearing with the fingerprints on the bill of information in case number 97-2299. He also generally 114challenges the admissibility of the evidence on the basis it lacked certification or authentication.

Defense counsel had no objection to Exhibit 3, court records for case number 97-2299, being admitted as long as the documents were properly certified. Exhibit 3 pertinently consisted of certified copies of the bill of information, the jury verdict, the original sentence, the enhanced habitual offender sentence, and fingerprints in case number 97-2299. Each of these documents was certified by the deputy clerk as true copies of the original documents on file in that office. The court concluded the documents were suitably certified and defense counsel then stated he had no objection. Thus, this issue was hot preserved for appellate review. See, State v. Girod, 96-660 (La.App. 5 Cir. 11/25/97), 703 So.2d 771, 776, writ denied, 98-0244 (La.6/19/98), 719 So.2d 480 (An appeal claim of inadmissible hearsay was not preserved).

But even assuming the issue was preserved, the argument is meritless. In this case, the certified copies under seal from the clerk of court of the place of conviction complies with La.R.S. 15:529.1(F) as prima facie evidence of the conviction and sentence. The certified copies were also admissible without extrinsic evidence of authenticity under La.C.E. arts. 902(2)(b) and 904.

Defense counsel objected to admission of Exhibit 4 (in connection with case number 97-2299), which consisted of certified copies of a Jefferson Parish Sheriffs arrest register. Counsel argued that Sergeant Munguia could not | ^authenticate the records. The trial judge correctly concluded, however, that Exhibit 4 was properly certified by the custodian of records for the Sheriffs Office as a true and correct copy of the original official documents. We agree. Each document in that exhibit bears a certification from the custodian of the Sheriffs records that the documents were true and correct copies of the Sheriffs official records. See: La.R.S. 15:529.1(F); La.C.E. art. 902(2)(b); La. C.E. art. 904.

Sergeant Munguia explained that the fingerprints in Exhibit 3, which included the certified copy of the bill of information, were of poor quality and could not be used for comparison. The state then sought to link the certified documents evidencing the conviction and sentence with the certified copy of the arrest register (Exhibit 4) that contained a legible copy of fingerprints.

Sergeant Munguia testified that the defendant’s fingerprints he took that day matched those contained in Exhibit 4.

The arrest register (Exhibit 4) is linked to the bill of information (Exhibit 3) by the complaint number, the defendant’s name, date of birth, the offense charged, and the date of the offense. Thus, the state presented sufficient evidence to establish the defendant’s identity as the person who was convicted and sentenced in case number 97-2299. See State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1074, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233. As such, we find the defendant’s claim that the evidence was insufficient to establish his identity is without merit.

Finally, the defendant argues generally that the trial court improperly used predicates that had been already used to enhance prior sentences, thus subjecting him to “double enhancement” and an illegal sentence. He does not, however, specify which predicates constitute “double enhancement.” But he does argue that the use of case number 97-2299 constitutes “double enhancement.” He relies on State v. Ayche, 98-191 (La.App. 5 Cir. 7/28/98), 717 So.2d 1218, 1223-24, writ granted in part on other grounds, 98-2345 (La.1/15/99), 723 So.2d 952, where this court vacated his habitual offender finding and sentence in case number 97-2299. He contends that after further proceedings his sentence was enhanced.

Although defense counsel filed a written objection the day of the hearing to the use of case number 97-2299 as constituting “double enhancement,” he did not urge the objection at the hearing. La.R.S. 15:529.1(D)(l)(b) states that any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence. See also, State v. Girod, supra, 703 So.2d at 776-77. Since defense counsel failed to apprise the trial judge at the hearing of his claim of “double enhancement” and its basis, we find he did not preserve this issue for review on appeal. Even had the issue been preserved, it is meritless. There is no prohibition against using the same conviction multiple times in separate multiple offender proceedings to sequentially establish defendant's multiple offender status and enhance the defendant’s sentence as to the new crime. See, State v. Pearson, 03-652 (La.App. 5 Cir. 12/9/03), 861 So.2d 283, 288, writ denied, 04-0166 (La.6/4/04), 876 So.2d 73 (citation omitted).

Case Number 92-2382

The defendant argues the state failed to match his fingerprints taken the day of the hearing with the bill of information in case number 92-2382.

Preliminarily, we note that the defendant also argues generally that documents and exhibits were not properly certified and authenticated. With regard to case number 92-2382, the state introduced Exhibit numbers 7, 8, and 9. Defense counsel had no objection to Exhibits 7 and 8, but he objected to Exhibit 9, the “pen 117pack.” As to the alleged improper admission of Exhibits 7 and 8, we find that the defendant did not preserve his claim for appellate review. Even so, for the reasons that follow, we conclude that the state met its burden of proving the defendant’s identity in the prior conviction and sentence by competent evidence based on linking the defendant’s fingerprints taken that day with those contained in the “pen pack” Exhibit 9. The “pen pack” was properly certified and authenticated. See: La. R.S. 15:529.1(F); La.C.E. art. 902(2)(b); La.C.E. art. 904.

State’s Exhibit 9, the “pen pack,” included a certification by the custodian for the Louisiana Department of Public Safety and Corrections that the attached documents were true copies of the records of that department regarding Clifton Ayche, DOC No. 314753. The pack included a certified copy of the bill, the minute entry showing the plea and sentence, and a minute entry showing Clifton Ayche’s probation was revoked on October 5, 1994 and that his original sentence was made execu-tory in case number 92-2382. The document also contained fingerprints.

In essence defense counsel argued that the probation revocation must be certified by the custodian of the Plaquemines court rather than by the custodian of the Department of Corrections. In a related argument, defense counsel argued that the plea was not a conviction under R.S. 40:983. Former La.R.S. 40:983, which was repealed by 1995 La. Acts, No. 1251, § 2, provided for conditional discharge under certain circumstances. Defense counsel asserted that the plea was not a conviction under R.S. 40:983 until there was proof the probation was revoked and in this case there was no proof of revocation. The defendant reurges these objections.

We find that the trial judge did not err in accepting the documents into evidence, relying on the custodian of records’ certification page. See: La.R.S. 15:529.1(F); La.C.E. art. 902(2)(b); La.C.E. art. 904. Furthermore, the custodian’s certification on the cover of the “pen pack” attachments is sufficient. Each page need not be individually certified. State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, 1029, units denied, 96-1459 (La.11/15/96), 682 So.2d 760 and 98-0282 (La.6/26/98), 719 So.2d 1048.

Sergeant Munguia testified that he used a fingerprint card within the “pen pack” and compared it with the defendant’s fingerprints taken that day and found them to be from the same person. The record further contains certified records from the district court, Exhibit 7, particularly the bill of information and the sentencing minute entry, which link with the “pen pack.” Thus, the certified documents in the Department of Corrections “pen pack” were sufficiently linked to establish the defendant’s identity as to the conviction, sentence, probation revocation and judgment making the sentence executory in case number 92-2382. Contrast, State v. Guilbeau, 03-1327 (La.App. 5 Cir. 2/23/04), 869 So.2d 201, 204 (This Court held that the state was not entitled to use the defendant’s prior guilty plea under R.S. 40:983 to enhance his sentence after the defendant successfully completed his probation and had the charge against him dismissed).

Therefore, the defendant’s assertion the state failed to meet its burden of establishing his identity as the person previously convicted and sentenced by competent evidence is meritless.

Case Number 94-2794

To the extent that the defendant generally challenges the certification and authentication of the evidence for case number 94-2794, we note the following.

|iaIn connection with the exhibits, defense counsel stated he had no objection to the introduction of Exhibits 5 and 6 if these were properly certified. The trial judge admitted the evidence.

Exhibit 5 contains records from the district court bearing the deputy clerk’s seal and certification that the documents are true copies of the originals on file in that office. Exhibit 6 consists of arrest records for Clifton Ayche from the Jefferson Parish Sheriffs Office referencing the same item number contained on the bill of information in Exhibit 5. The exhibit includes fingerprints. The arrest records bear a certification on each document from the custodian of the Sheriffs records that the documents are true and correct copies of the Sheriffs official records. We conclude that the exhibits were properly certified and authenticated. See: La.R.S. 15:529.1(F); La.C.E. art. 902(2)(b); La. C.E. art. 904.

In conclusion, the issues raised in the defendant’s pro se brief lack merit.

ERROR PATENT DISCUSSION

As is our practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920.

First, we find that the record minutes and commitments conflict with the transcript in that they do not accurately reflect the defendant’s conviction and sentence. If a discrepancy exists between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Because the transcript prevails, the case is remanded to the trial court in order for it to correct the minutes and commitments to conform to the transcript as follows:

1) The district court is directed to amend the April 19, 2005 jury trial minute entry to reflect that the jury returned a guilty verdict of possession of cocaine.
2) The district court is directed to amend the original May 2, 2005 commitment and the April 12, 2006 habitual offender commitment to |¡>nreflect that the defendant was found guilty by a jury of possession of cocaine, a violation of La.R.S. 40:967(C).
3) The district court is directed to amend the April 12, 2006 habitual offender commitment to reflect that the defendant was convicted on May 2, 2005.
4). The district court is directed to amend the original May 2, 2005 commitment to strike the portion stating that the plea was acceptable to the State and that the defendant was advised of his rights and waived these rights.
5). The district court is directed to amend the original May 2, 2005 commitment to strike the portion that states the defendant is a “multiple quad offender.”
6). The district court is directed to amend the April 12, 2006 habitual offender commitment to strike the restriction on parole eligibility and to reflect the sentence was ordered served without benefit of probation or suspension of sentence only.

The clerk of court is directed to transmit the original of the minute entry/commitment to the officer in charge of the institution to which the defendant has been committed. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Second, the record reflects that the trial judge properly informed Clifton Ayche of the prescriptive period for filing for post-conviction relief pursuant to La. C.Cr.P. art. 930.8 on May 2, 2005 after he imposed the original sentence. However, the trial judge did not inform the defendant of those same provisions after the defendant was found to be a habitual offender and resentenced as such. The re-sentencing occurred almost one year after the original sentence and- advisal. Under these circumstances, we find it prudent to remand the matter and order the district court to properly inform Mr. Ayche of the time from which prescription for post-conviction relief runs by sending written notice of such to him within ten days of the rendition of the appellate opinion and to file written proof that the defendant 12ireceived the notice in the record-. Compare, State v. Arceneaux, 05-338 (La.App. 5 Cir. 12/27/05), 930 So.2d 44, 51.

Accordingly, it is ordered that the defendant’s conviction and- sentence are affirmed. We further order that this case be remanded to allow the trial court to amend the minutes and commitments as directed above. Finally, we order that the trial court send the defendant written notice of the prescriptive period for post-conviction relief applications as directed above.

CONVICTION AND SENTENCE AFFIRMED;. REMANDED WITH INSTRUCTIONS.

      . Counsel did not brief the assignment of error patent. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether the defendant makes such a request.

      . He is also referred to as "Cline.”

      . There were a few minor discrepancies in the testimony. Detective Dufrene explained at trial he was confused as to the names of the streets at the motion to suppress hearing when he said he first approached the defendant on Carmadelle Street instead of Garden Street. Also, at trial he testified he was approximately 10 or 15 feet behind the defendant during the chase when he observed the defendant discard an object. At the hearing, he indicated the distance was "probably” 10-to-12 feet. In addition, at the hearing, Detective Dufrene testified the incident occurred “pretty late in the afternoon” and it was “pretty dark.” He explained at trial that it occurred around 9:00 at night.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Before this court addressed the merits of the excessiveness of the defendant's sentence in State v. Williams, supra, it first determined that the defendant should have been sentenced to life under the pre-amendment version of La.R.S. 15:529.1, but declined to correct the illegally lenient sentence on appeal.

      . This provision applies to the following:
      (b) Certified Louisiana public documents. A purported record, book, paper, or other document of the State of Louisiana, or of a department, board, or agency thereof or of a political subdivision of the state or a department, board, or agency of such a subdivision when certified as being the original by an officer or employee who identifies his official position and who either has custody of the document or who is otherwise authorized to make such a certification.

      . This article provides:
      When an original public document is deemed authentic without proof by extrinsic evidence as provided in Article 902(1), (2), or (3), a purported copy of the document also shall be deemed authentic when certified as true or correct by the custodian or other person authorized to make that certification, by certificate complying with Article 902(1), (2), or (3).