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

text:
    Beverly JENKINS, Individually, and as the Administratrix of the Estate of Corey Horton, Deceased, Alethea Smith, Individually, and In Behalf of Her Minor Child, Angelnic Smith, et al. v. Addie FANGUY, Robert Canedo, Frank Polito, Christy Williams, John Does and Jane Does Individually and as Police Officers of the City of New Orleans, Arnesta Taylor, et al.
    No. 2005-CA-0383.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 15, 2006.

      Gary W. Bizal, Pierce & Bizal, New Orleans, LA, for Plaintiffs/Appellees.
    Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Franz L. Zibilieh, Associate City Attorney, Heather M. Valliant, Assistant City Attorney, Deborah M. Henson, Assistant City Attorney, Penya Moses-Fields, City Attorney, Sherry S. Landry, Former City Attorney, New Orleans, LA, for Defendants/Appellants.

      (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge LEON A. CANNIZZARO, Judge Roland L. Belsome.)

       CHIEF JUDGE JOAN BERNARD ARMSTRONG RECUSED HERSELF FOLLOWING ORAL ARGUMENT

   PATRICIA RIVET MURRAY, Judge.

| defendants, retired New Orleans Police Department [“NOPD”] officer, Sgt. Addie Fanguy, and his employer, the City of New Orleans [“the City”], appeal two related judgments of the trial court. In the first judgment, the court found the City liable for Sgt. Fanguy’s use of excessive force in attempting to arrest Corey Horton and for Mr. Horton’s resulting death. In the second judgment, the court awarded damages to plaintiff Lakiksha Thompson on behalf of her and Corey Horton’s minor child for the wrongful death of Mr. Horton. For the reasons that follow, we reverse the judgments of the trial court.

FACTS AND PROCEEDINGS BELOW

On August 24, 1991, Sgt. Fanguy, who was then Commander of the Major Criminal Investigation Unit for the NOPD, received a call at the Third District Police Station from another officer, who informed him that a stolen blue truck allegedly occupied by brothers Anthony and Corey Horton had just been spotted at a particular gas station in the vicinity of the St. Bernard Housing Development. At this time, there were recent outstanding arrest warrants for Anthony Horton for ^allegedly having committed armed robbery and other violent crimes, including shooting at police officers two days before, in the area of the housing development. The police had additional information that Anthony Horton and his sixteen-year-old brother, Corey, were operating together. There was also an outstanding arrest warrant for Corey Horton. Upon receiving the tip as to the brothers’ whereabouts, Sgt. Fanguy left the district station with two other officers in three separate unmarked patrol cars and went to the scene. He also ordered all marked patrol cars out of the area and that those patrol cars block all entrances to the housing development.

When Sgt. Fanguy spotted the stolen blue truck at the intersection of Gentilly and Trafalgar, he pulled his vehicle in front to block it, while another NOPD officer, Frank Polito, pulled up behind, it and a third officer, Robert Cañedo, pulled up along the passenger side, boxing in the small truck. Corey Horton was driving the truck, with a fifteen-year-old female passenger, Alethea Smith, sitting in the front seat. Also riding in the truck were Corey Horton’s fifteen-year-old girlfriend, Lakiksha Thompson, and Alethea Smith’s one-year-old daughter, Angelnic. Sgt. Fanguy exited his vehicle and with his gun drawn ordered Corey Horton out of the truck. Officer Polito also exited his vehicle and approached Corey Horton. The officers ordered the passengers to get out of the truck and get down to the ground, which they did.

Corey Horton got out of the truck with his hands raised. Exactly what occurred next is in dispute. Sgt. Fanguy testified that as he took hold of Corey | Horton’s shoulder with his left hand in an attempt to “put him” on the hood of the truck, Corey Horton suddenly dropped his right hand and grabbed Sgt. Fanguy’s right hand, in which Sgt. Fanguy was holding his gun. Sgt. Fanguy then spun Horton around to face him, used his leg to trip Horton, and they both fell to the ground. As they struggled while falling, Sgt. Fan-guy claims he felt for his trigger and shot Horton in the chest. According to the plaintiffs’ version of events, Corey Horton did not resist arrest, but kept his arms outstretched and his hands up while Sgt. Fanguy pulled him to the ground and shot him in the chest. There is no dispute that Corey Horton was then shot again in the back of his head by Sgt. Fanguy and also shot at several times by Officer Polito. Sgt. Fanguy testified that he fired his second shot from his position on the ground, lying on his back with his upper torso turned to one side and propped up on one elbow. Corey Horton died as a result of the gunshots, and Sgt. Fanguy was injured at some point by a bullet that grazed his leg.

Plaintiffs filed suit against the City, its mayor, and various NOPD officers, including Sgt. Fanguy, for the wrongful death of Corey Horton. The case was tried on October 5-7, 2004. At the time of trial, the only remaining plaintiff was Lakiksha Thompson, on behalf of her minor daughter Corineisha Thompson, who is also the daughter of Corey Horton. The only remaining defendants were the City and Sgt. Fanguy. The City stipulated that Sgt. Fanguy was in the course |4and scope of his employment as an NOPD officer at the time of the shooting of Corey Horton.

On November 10, 2004, the trial court rendered judgment in favor of the plaintiff on liability and written reasons for judgment. The court reserved the right to award damages in a separate judgment should the parties fail to reach an agreement as to the amount. On February 16, 2005, after the parties notified the trial court that they had been unable to reach a compromise, the court rendered judgment awarding the plaintiff $50,000.00 in survival damages and $75,000.00 for the wrongful death of Corey Horton.

The City and Sgt. Fanguy timely appealed both judgments.

ISSUES

The sole issue on appeal is whether the trial court’s determination that Sgt. Fan-guy used excessive force in apprehending Corey Horton is manifestly erroneous. Specifically, the defendants argue that the trial court committed manifest error by ignoring the expert and scientific evidence suggesting that .there was a struggle between Corey Horton and Sgt. Fanguy,-which resulted in Sgt. Fanguy shooting Corey Horton in self-defense. The defendants also argue that the trial court improperly relied upon eyewitness testimony that was inconclusive because none of the witnesses actually saw Sgt. Fanguy shoot Corey Horton.

APPLICABLE LAW

The factual findings of the trial court are subject to the manifest error standard of review, which precludes our setting aside of those findings unless they Lare manifestly erroneous or clearly wrong in light of the record in its entirety. Cenac v. Public Access Water Rights Ass’n, 2002-2660 (La.6/27/03), 851 So.2d 1006, 1023. The Louisiana Supreme Court has explained this standard as follows:

This court has announced a two-part test for the reversal of the factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one.... The reviewing court must always keep in mind that if the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Parish National Bank v. Ott, 2002-1562, pp. 8-9 (La.2/25/03), 841 So.2d 749, 753-754 (quoting Stobart v. State Through DOTD, 617 So.2d 880 (La.1993)).

In the instant case, the plaintiff has the burden to prove by a preponderance of the evidence that Sgt. Fanguy used excessive force. Excessive force claims fall under the ambit of the general negligence provision of Louisiana Civil Code article 2315, and the standard duty/risk analysis applies to determine whether the police officer involved was negligent. See, e.g.: Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318; Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072. The duty/risk analysis consists of a four-part inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, ie., was it a cause-in-fact of the harm? (2) Did the defendant owe a duty to the plaintiff? (3) Was the duty breached? and (4) Was the risk and harm caused within the scope of protection afforded by the duty breached? All four questions must be answered m |fithe affirmative for the plaintiff to recover. Mathieu, supra, p. 4, 646 So.2d at 321-322.

Causation is not at issue in the instant case, as it is undisputed that Sgt. Fanguy’s conduct contributed to the death of Corey Horton and that the risk of causing the death of a suspect is within the scope of the duty allegedly breached by an officer who employs excessive force and uses his weapon in his attempt to arrest the suspect. The duty owed by a police officer in approaching and/or arresting a suspect is to act reasonably under the totality of the circumstances. Mathieu, supra, pp. 5-6, 646 So.2d at 322-323; see also: Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). The court must evaluate the officer’s actions against those of an ordinary, prudent, reasonable person placed in the same position as the officer, with the same knowledge • as that possessed by the officer at the. time of the incident. Id., p. 6, 646 So.2d at 322 (citing Kyle, supra, 353 So.2d at 973). In determining whether the officer has acted reasonably, the following factors should be considered: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength and weaponry of the officer as compared to the arrestee; and (7) the exigency of the moment. Id., p. 6, 646 So.2d at pp. 322-323 (citing Kyle, supra, at 973). Moreover, the scope of the officer’s duty to act reasonably does not restrict the officer to employing only the best of several available alternatives, or the least intrusive; however, the alternative chosen must be a reasonable course under the circumstances. Stroik v. Ponseti, supra, p. 9, 699 So.2d at 1079. Finally, the determination of whether the defendant police officer has breached his duty is a |7question of fact. Id., p. 7, 699 So.2d at 1078 (citing Mundy v. Department of Health & Human Resources, 620 So.2d 811, 813 (La.1993)).

In the instant appeal, the sole issue is whether the trial court committed manifest error by determining that Sgt. Fanguy breached his duty, as described above, to Corey Horton. To resolve this issue, we must consider the record in its entirety.

EVIDENCE PRESENTED

Plaintiffs evidence at trial included the live testimony of Sgt. Fanguy and of four additional witnesses: Courtney Martin, Reynard Martin, Alethea Smith and Lak-iksha Thompson; plaintiff also introduced the deposition testimony of Willie Morris and Nicole Brown.

Sgt. Fanguy testified that he had retired from the police force in 2001 and was, at the time of trial, employed as a corporate aircraft pilot. In August of 1991, Sgt. Fanguy was employed by the NOPD and was investigating a robbery and shooting of two police officers allegedly involving Anthony Horton. In connection with that investigation, Sgt. Fanguy executed a search warrant at the home of Ms. Willie Morris, which residence he believed Anthony Horton had entered immediately after the alleged shooting. Sgt. Fanguy specifically denied having verbally threatened to kill Anthony and/or Corey Horton during the search of Ms. Morris’s home. When questioned by defense counsel, Sgt. Fanguy confirmed that there were several arrest warrants out for Anthony Horton and one out for Corey Horton. Sgt. Fan-guy also had information that the brothers were- working together. They were suspected of having been involved in a shootout with police a few days earlier, and of having shot into an apartment with an infant inside and into a car with two children inside. Several people had reported that the Horton brothers had |sbeen terrorizing the area of the St. Bernard Housing Development for three to four weeks. The police also had information that sometimes Corey Horton would drive a vehicle in which the back seat had been loosened, so that Anthony could hide in the trunk. Both brothers were believed to be armed. At the time he received the phone call that the stolen blue truck had been spotted, Sgt. Fanguy was planning to arrange for helicopter surveillance of the area in order to locate the Horton brothers.

On August 24, 1991, Sgt. Fanguy received a phone call at the Third District Police Station from Officer Christy Williams informing him that a stolen blue truck (which was known to have been occupied by Anthony and Corey Horton earlier that day) had been spotted at a gas station at the corner of Paris Ave. and Gentilly Blvd., near the St. Bernard housing development. Sgt. Fanguy, Officer Polito and Officer Cañedo immediately headed for that area in their individual unmarked police units. Because he was afraid the Horton brothers would flee into the housing development, Sgt. Fanguy ordered all marked police units to leave the area and block the entrances and exits to the development to prevent the suspects from fleeing into the development. When they spotted the blue truck on Gentilly, Sgt. Fanguy pulled in front of it, Officer Cane-do pulled up behind it, and Officer Polito pulled alongside it, boxing in the blue truck. Sgt. Fanguy got out of his vehicle with his gun drawn, and ordered the driver of the blue truck to get out and to put his hands up. Sgt. Fanguy testified that when Corey Horton got out with his hands raised, Sgt. Fanguy grabbed Corey’s left shoulder from behind and started to “put him on the truck.” Sgt. Fanguy stated that as soon as he ordered Corey Horton to put his hands on the side of the truck behind the door, Corey’s right hand dropped towards his waist and was no longer visible to Sgt. Fanguy. Fearing the ^suspect had a weapon in his waistband, Sgt. Fanguy spun Corey around to face him. According to Sgt. Fanguy, Corey spun almost 360 degrees, stepped over Sgt. Fanguy’s leg and then put his hand over Sgt. Fanguy’s right hand, in which Sgt. Fanguy was holding his gun. Sgt. Fanguy grabbed the back of Corey’s neck, and they began struggling for the gun. Sgt. Fanguy then used one of his legs to trip Corey, and they both began falling. Sgt. Fanguy stated that just as his right knee hit the ground, he felt the trigger of his gun and it went off. Almost simultaneously to hearing the gunshot, Sgt. Fan-guy felt a sharp pain in his leg, which made him believe he had been shot. At this point, Sgt. Fanguy still thought Corey Horton might have had a weapon. Sgt. Fanguy heard other shots being fired. He fell backward from his knees, and Corey Horton was- already on the ground. Sgt. Fanguy lifted up, propped himself up on his elbow, and fired at Corey again. One of the other officers helped Sgt. Fanguy to his car and drove him to the hospital. At the hospital, Sgt. Fanguy was treated for an abrasion to his right leg that was possibly caused by the grazing of a bullet, and was told he had a partial ligament tear. Sgt. Fanguy stated that he temporarily wore a brace on his right knee after the incident and that he missed work for approximately five days due to his injury. ‘ In his testimony, Sgt. Fanguy confirmed that no weapon was ever discovered, either on Corey Horton’s person or at the scene.

Alethea Smith testified that on the day of the incident, she and Lakiksha Thompson were riding in the cab of the truck with Alethea’s baby daughter, Angelnie, and that Corey Horton was driving. They were on their way to the west bank of the city to visit Corey’s sister, Connie, because Connie had never seen 110Angelnic. When they stopped for gas, Lakiksha crawled into the back of the truck, which was covered, with the baby to comb the baby’s hair. They left the gas station and were proceeding down Gentilly. At the intersection of Gentilly and Trafalgar, a black Taurus, which she recognized as an unmarked police car, pulled in front of the truck blocking it. A police officer got out and was screaming at Corey, using profanity, ordering Corey to get out of the truck. Corey got out with his hands up. She saw Corey facing the truck, slowly moving down the side of it. Another officer opened the passenger door and yelled at her and Lakeiksha to get out and get on the ground. Alethea was protesting that she was pregnant and that her baby was still in the truck. Eventually, Alethea got to her knees and pulled Angelnie out of the truck and down on the ground with her. While on the ground, Alethea testified she heard two or more gunshots, but did not remember exactly when. She could see under the truck that Corey was lying on the ground, apparently shot. She saw Corey put his arm over his head. She testified she did not remember whether there was a police officer lying on the ground also. Under cross-examination, the witness admitted she had lied to the police investigators about her relationship to the Horton brothers when she had been questioned shortly after the incident because she had been scared, but stated she had later told the truth to the FBI. She also acknowledged that she had told the FBI investigator that she had seen a white male lying on the ground next to Corey Horton after the shooting.

Lakiksha Thompson testified that Corey Horton had gotten the blue truck from a friend of his mother’s named Chip, who had lent him the truck in exchange for Corey’s getting crack cocaine for his mother and Chip. Ms. Thompson confirmed that she was in the cab of the blue truck with Corey Horton, Alethea |n Smith, and An-gelnic, but when they stopped at the gas station, she climbed over the seat to the back with the baby and was combing the baby’s hair. As they drove down Gentilly, a ear pulled in front of them, a man jumped out, and, using profane language, he yelled at Corey to get out of the truck. Corey got out with his hands up. The same officer who had ordered Corey out of the truck noticed her in the back under the camper cover and ordered her to get out. She put the baby on the front seat, climbed over the seat, got out the passenger side, crossed over Alethea, and laid down next to her on the ground. Angelnic was crying and crawling towards the door; so Alethea got up enough to grab the baby and pull her down on the ground with them. When Lakiksha first got out of the car, she could see Corey over the roof of the truck, and he was still standing up. A few seconds after she got down on the ground, she heard shots and then saw Corey was on the ground. From under the truck, she could see Corey’s face. His eyes were open. She heard more shots, and then saw Corey put his hands over his face. She never observed any feet moving under the truck or any indication of a struggle. The witness confirmed that Corey Horton did not have a gun on him at the time of the incident.

Two eyewitnesses to the incident, Courtney Martin and her husband, Renard Martin, Sr., also testified for the plaintiff. Mrs. Martin testified that she was a front seat passenger in a car driven by her husband; they were on Trafalgar approaching a stop sign, intending to turn left onto Gentilly, but there were cars stopped in front of them. Mrs. Martin admitted her vision was “impeded a little bit.” She could not identify the person shooting or recall what type of clothes he was wearing; she only knew he was a Caucasian male. The shooter was on the opposite side of the | ^blue truck from her. She was not sure whether she saw a gun. Mrs. Martin said she did not recall having seen a struggle or having seen anyone attack the shooter.

Renard Martin, Sr., testified that from where his car was stopped, he saw a black Taurus speed up and cut off a small blue truck. He saw a man get out of the Taurus with his weapon drawn, go to the front of the truck, and order the driver to get out. ' At the same time, Mr. Martin observed another man get out of a vehicle that had pulled up behind the truck. Both men instructed the driver to put his hands up. The driver got out of the -truck, and his hands were in the up position. Mr. Martin was looking across the truck. Both officers were standing on the opposite side of the truck, one in front of the driver’s door and one behind it. The one standing in front had a gun pointed at the driver. When the driver first emerged, he was facing the officer standing in front. Then the officers instruct the driver to get to the ground, and the driver turns partially toward the truck (and toward Mr. Martin). Mr. Martin testified ■ that ■ both officers were close enough to touch the driver, within .two or three feet, and the officer in front had one arm extended; however, Mr. Martin could not tell whether the officer was actually touching him. Both officers had their hands positioned in a way that they could have been pushing the driver to the ground from behind, but Mr. Martin could not tell whether they were or not. Mr. Martin saw that the officer in front had his gun pointed at the driver the entire time. As the driver started to go down, he disappeared from Mr. Martin’s view because the truck was in the way. “Like lightening,” Mr. .Martin heard shots fired and saw the officer in front step back and saw that officer’s hand recoil, as if he had fired a gun. He could not actually see who fired the shots. Almost simultaneously to the gunshots, Mr. Martin saw two females get out the passenger side of the truck when ordered by another officer. | iaWhen he heard the gunshots, Mr. Martin put his vehicle in reverse and left. He testified that he never saw the driver of the blue truck resist or do anything uncooperative. Unlike his wife, Mr. Martin stated that there were no cars stopped in front of theirs at the stop sign.

A third independent eyewitness, Nicole Brown, was unavailable to testify at trial, but her deposition testimony, taken in 1998, was introduced into evidence by the plaintiff. Ms. Brown, who was nineteen years old on August 24, 1991, when the incident occurred, stated that she was seated in the front seat of a truck being driven by her grandfather, who was in the process of backing the truck into the driveway of Ms. Brown’s family home at 1910 Gentilly. They intended to load the truck with things Ms. Brown was going to take with her to college. Ms. Brown heard a loud voice saying “Stop the truck,” at which point her grandfather stopped. She then saw a blue Mitsubishi truck stop directly in front of her with three cars boxing it in. Two people, whom she later realized were police officers, were running toward the blue truck, one from the front and one from the rear. Ms. Brown testified that she had an unobstructed view of the driver’s side of the blue truck. The officers were screaming obscenities, yelling at the driver to get out of the truck. The driver fumbled with the door handle briefly, then got out and put his hands up in the air. The two police officers moved closer to the driver, Corey Horton, with their guns drawn. One officer grabbed Corey; that officer was wearing a white shirt and blue jeans. Corey was beginning to assume a frisk position, to go toward the ground with his hands stretched out in front of him. Ms Brown saw the same officer who had first grabbed Corey begin to push Corey, and |14then he kicked Corey. .A few seconds later, Ms. Brown heard a single gunshot, followed by ' a pause, then seven or eight more, shots. She could not tell which officer had fired the first shot. Ms; Brown did not know whether Corey’s hands had gone all the way to the ground when the first shot was fired, but she stated that Corey’s hands were definitely out in front of him when the shot went off. Ms. Brown stated that Corey Horton was facing her the entire time; he never turned to face the blue truck. Ms. Brown never saw Corey Horton attempt to grab one of the police officer’s guns; she never saw him wrestle with the officers. She testified that, the one thing she was “absolutely clear about” was that Corey Horton’s hands were either out in front of him or up in the air the entire time, from the time he exited the truck until the time the first shot was fired. After the shooting, Ms. Brown noticed that one of the officers was lying on the ground with Corey. Ms. Brown then got out • of her grandfather’s truck and went inside her house to call 911 for an ambulance. As she came out her front door, another police officer, wearing camouflage pants, came over and told her and her grandfather to go inside and lock the door, because there could be an armed man in the area, who had possibly escaped from the back of the blue truck. She and her grandfather ignored the warning and remained on the porch of the house. Ms. Brown stated that the police officer that was lying on the ground was grabbing his leg; when that officer stood up, he was limping, and another officer helped him to one of the cars, and they drove off. Ms. Brown testified that the entire incident took place very quickly, probably in about two minutes. Ms. Brown stated that she did not know Corey Horton or his family prior to this incident.

Finally, the plaintiff introduced the deposition testimony of Ms. Willie Morris; On August 23,19.91, Ms. Morris was at her apartment at 3629 St. Bernard |1sAvenue when some police officers, including Sgt. Fanguy, kicked in her back door and searched her residence looking for Anthony Horton, who.Ms. Morris said she did not know. According to Ms. Morris’s testimony, during the course of the search, Sgt. Fanguy told Ms. Morris that when he caught Anthony Horton, he was going to kill Anthony and his brother too.

The defendants’ case, in addition to Sgt. Fanguy’s testimony and physical evidence such as clothing, photographs of the crime scene, medical records and autopsy reports, included the live testimony of NOPD officers Robert Cañedo, Christy Williams, and David Dautrive, as well as several officers connected with the crime lab, a police dispatcher, and forensic expert Dr. Paul McGarry. The defendants also introduced the deposition testimony of Officer Frank Polito, who had died prior to trial.

Officer Polito’s deposition was taken in 1996. He was in the vehicle that pulled behind Corey Horton’s truck. He got out of his car and went to the truck with Sgt. Fanguy. Officer Polito’s testimony corroborated that of Sgt. Fanguy in all respects. Officer Polito said Corey Horton got out of the truck with his hands about shoulder high and automatically turned to face the truck. As Sgt. Fanguy grabbed Corey from behind and pushed him toward the truck, Officer Polito saw Corey drop his hand to his waistband area. Sgt. Fan-guy then spun Corey around, and Officer Polito saw Corey’s hand go over Sgt. Fan-guy’s gun. At that point, Sgt. Fanguy and Corey struggled, and Sgt. Fanguy started yelling repeatedly, “He’s got my gun.” Then Sgt. Fanguy and Corey, who were facing each other and struggling, started to fall to the ground, seemingly tripping over one another. While they were on their way to the ground or just as they hit the ground, Officer Polito heard a gunshot. At this point, Officer Polito was standing just over Sgt. |1fiFanguy’s right shoulder, about four feet away. Officer Polito heard a second shot; then Sgt. Fanguy yelled, “I’m shot,” and fell back limply. Officer Polito then fired two shots downward at Corey Horton. After checking to see that Corey Horton was no longer a threat, Officer Polito turned his attention to Sgt. Fan-guy, who was lying in the street. Officer Cañedo came around from the other side of the truck, and the two officers helped Sgt. Fanguy to his police car. Officer Cañedo then drove Sgt. Fanguy to Charity Hospital.

Officer Robert Cañedo testified that he was at the Third District Police Station with Sgt. Fanguy and Officer Polito on the day the call came in informing them that the stolen blue truck allegedly occupied by the Horton brothers had been spotted at a gas station on Paris Avenue. He immediately grabbed his radio and left in his car followed by the other two officers. They were at a stop sign when the blue truck passed them going in the opposite direction. The three police vehicles each made a U-turn, followed the truck, and eventually boxed it in. Officer Cañedo pulled up alongside the passenger side of the truck. He got out of his vehicle and noticed through the heavily tinted windows of the truck the outline of a person sitting on the passenger side. Officer Cañedo ordered the occupant to open the door and get out of the truck; he denied using profanity to order the person out. A female got out of the truck, and the officer then observed a baby on the seat, whom he handed to the female. Then Officer Cane-do saw a second female in the rear of the truck, and ordered her out. He then crawled into the back of the truck to make sure there was no one else in it. During all this time, Officer Cañedo had his gun in his right hand, and he was aware through his peripheral | 17vision that the driver had also gotten out of the truck on the other side. As officer Cañedo was crawling out of the back of the truck, he heard shots fired. Several seconds before he heard the shots, he heard Sgt. Fanguy’s voice saying “He’s got my gun.” Officer Cañedo immediately ran around to the other side of the truck, where he saw both Sgt. Fan-guy and the suspect (Corey Horton) lying on the ground. Officer Cañedo checked the suspect’s carotid artery for a pulse, but found none. He also found no weapon on the suspect or in the area. Sgt. Fanguy was on the ground with an ashen complexion, saying that he was shot in the leg. Officer Polito and Christy Williams were also there. Officer Cañedo then picked up Sgt. Fanguy, put him in his vehicle, and drove him to the hospital.

' Lt. Christy Williams testified that she had been an NOPD officer for twenty-three years. On the day of the incident in 1991, she was off duty when she saw a blue low-rider truck with tinted windows and an Alabama license plate stopped at a gas station on Paris Ave. and Gentilly Blvd. She had learned the night before that the Horton brothers were thought to be in possession of this stolen truck. Because she had no radio or cell phone with her, Lt. Williams pulled into a Popeye’s restaurant across the street and used the restaurant’s phone to call the Third District Police Station, while keeping an eye on the blue truek. The truck pulled off while she was on the phone. She crossed the street in her vehicle, got out, and tried unsuccessfully to flag down two marked police cars that “flew” past her. She then heard shots about two blocks away. She heard one shot, then a pause, followed by four more shots. She got in her car and went to the scene, arriving in about thirty seconds; there she- saw Sgt. Fanguy and another person lying in the street. Lt. Williams helped the other two officers who were there put Sgt. Fanguy into one of the unmarked police cars. She testified that Sgt. Fanguy could not walk on his own | isbecause his knee was hurt. According to Lt. Williams, Sgt. Fanguy told her then that the guy (the suspect) had tried to take his gun away. On cross-examination, Lt. Williams admitted that when she called the Third District, she said the Horton brothers were in the blue truck, which she had assumed was true although, because of the tinted windows, she had only been able to see the outline of a male figure driving the truck. Lt. Williams also testified that during the incident, there was a broadcast on the police radio indicating that someone in a white shirt had escaped out of the back of the truck.

Officer David Dautrive testified that he had been involved in the execution "of the search warrant at Willie Morris’s home on August 23, 1991. He remained in the kitchen with Ms. Morris the entire time. He never heard Sgt. Fanguy or anyone else threaten to kill the Horton brothers during the execution of the warrant.

William Giblin testified that he was a criminalist working in the NOPD crime lab in 1991. He authored the crime lab report issued September 20, 1991, concerning the incident in question. He testified that there was sooting and gunpowder residue found on the front right leg of Sgt. Fan-guy’s jeans near the calf. There was no bullet hole in the jeans, but they tyere torn on the right leg near the sooting. In his experience, the witness believed that the sooting indicated there had been a gun fired within inches of or in direct contact with the cloth, and the tear in the fabric could have been caused by the slide of an automatic weapon (such as the one Sgt. Fanguy was carrying), which moves rapidly when the weapon is fired. The witness admitted that he had not included the “slide” theory in the report. He also testified that there was type A blood (stipulated to be Corey Horton’s blood) on the right lower side to the back of Sgt. Fan-guy’s shirt and in six spots on Sgt. ImFanguy’s pants, including a stain on the back of the pants just above the pocket at the waist. The witness also testified that Corey Horton’s shirt had gun residue and sooting on the inside, and had two holes that were symmetrical when the shirt was folded in a certain way, which indicated the bottom of the shirt had been pushed up and the gun barrel was in contact with Corey Horton’s chest when the shot was fired.

Officer Debra Prosper, a technician in the crime lab at the time of the incident, testified that she arrived at the scene to collect evidence approximately one hour and ten minutes after the shooting of Corey Horton. She recovered two bullets from the ground, one lying between Corey Horton’s arm and leg, and the other lying next to his knee. She also recovered five bullet casings from the scene.

John Landry, who was the commander of the NOPD crime lab in 1991, testified that he signed the crime lab report and the firearms inspection report, which were placed in evidence. As a result of his testimony concerning the physical evidence, the parties stipulated that there were three bullets discharged from Sgt. Fanguy’s gun, two of which were retrieved from Corey Horton’s body during the initial autopsy and a third that was retrieved from the scene (lying on the ground between Corey Horton’s arm and leg); they also stipulated there were two bullets discharged from Officer Polito’s gun, one of which was retrieved from Corey Horton’s body and one from the crime scene.

Stephanie Briscoe, a police dispatcher, read from and interpreted the complaint history, which she described as a written record of the information that | P,nwas called into police headquarters, either by police officers or citizen complainants, which was typed up contemporaneously by the police operator receiving the calls. The complaint history for the day in question reflects that at 1:38 p.m., Sgt. Fanguy reported he was dispatched to and arrived on the scene. At 1:39 p.m., Officer Polito relayed that he was assisting Sgt. Fanguy at Gentilly and Trafalgar and called in a “108”, which indicates a police officer’s life is in danger. At 1:40 p.m., six different police units called in to say they were responding. At 1:42 p.m., the dispatcher, received a “911” call from a complainant at 1910 Gentilly Blvd. stating that a police officer had shot a man in the street. At 1:42 p.m., there was a call that a police officer was down, and at 1:43 p.m., a call that Sgt. Fanguy was being relocated to Charity Hospital. Finally, at 1:46 p.m., Officer Polito called in information that Anthony Horton, a Negro male wearing a white shirt and blue jeans, could still be at large and might be headed to the Fifth District.

The defendants’ only expert witness, Dr. Paul McGarry, was accepted as an expert in the field of forensic pathology. Dr. McGarry testified that he performed .an autopsy on Corey Horton on August 25, 1991. He found four gunshot wounds. Wound “A” was a contact wound, indicating that the muzzle of the gun was touching Corey’s chest when fired. This bullet was fired downward at approximately a forty-five degree angle, backward and leftward, and ultimately lodged in the left lung. This information was determined from the pattern of soot staining and gunpowder residue. The bullet from wound “B” went in behind and below the left ear, traveled across the base of the skull, and came out the right cheek. The bullet from wound “C” went into the lower back, traveled upward and rightward, and came out the right side of the chest in line with the front of the arm. Finally, the bullet from wound “D” went into the back of the neck at its | ^juncture with the head, traveled upward, leftward and forward, into the brain stem, lodging at the base of the skull. Bullets “A” and “D” were fired from the same gun, later determined to be that of Sgt. Fanguy, and were both recovered from inside Corey Horton’s body. Bullet “C” was fired from a different gun, later determined to be that of Officer Poli-to, and was found lodged in Corey Horton’s clothing; Bullet “B” was not recovered in the autopsy, but the evidence from it was consistent with it having been fired from Officer Polito’s gun. It was impossible for Dr. McGarry to determine which wound occurred1 first, but the time sequence of all four was very close together.

Dr. McGarry opined that wound “A” (the chest wound) was the fatal wound, because it would have killed Corey Horton either instantaneously or within five to ten minutes. Wound “D” (the head wound) would have also been fatal within minutes to hours. The other two wounds were not fatal. In addition to the four gunshot wounds, Corey Horton had abrasions or bruising of the skin on his chest, his right hand, his elbows, his knees and the right side of his neck, which were the type of contusions caused by the striking of the body against rough surfaces, as might occur in a struggle. There was evidence of cocaine in Corey Horton’s urine and eye fluid, but not in his blood. From the totality of his findings in the autopsy, Dr. McGarry opined that it was more likely than not that Corey Horton had been involved in a struggle at the time he was shot. He also confirmed that another autopsy was performed by Dr. Michael Baden by order of the FBI, which report was introduced into evidence. Dr. McGarry testified that Dr. Baden’s autopsy agreed with his in all findings. On cross examination, Dr. McGarry admitted that some of the individual findings he made could have been caused absent a struggle, l^but he believed that all the findings taken together clearly indicated that a struggle had occurred.

DISCUSSION OF LAW AND EVIDENCE

In written reasons for judgment, the trial court judge stated that she found the symmetrical hole patterns in Corey Horton’s shirt to be inconsistent with a struggle because they indicate the shirt was pushed up rather than twisted as in a struggle. The trial court also concluded that, despite Dr. McGarry’s uncontradicted opinion, the physical evidence was inconsistent with Sgt. Fanguy’s description of events. In particular, the trial court noted that Sgt. Fanguy testified he fired both shots as he lay on the ground facing Corey Horton, and that there was no justification for the second shot to the back of Corey Horton’s head. Moreover, if Sgt. Fanguy fired the first shot in contact with Corey Horton’s chest from his position on the ground, he would have then had to “roll 40 degrees towards his right and shoot from behind his head”' in order to land the second shot into the back of Corey Horton’s head.

Finally, the trial court judge stated that she was particularly persuaded by the testimony of the three independent witnesses, Mr. and Mrs. Martin and Nicole Brown. Considered together, their testimony convinced the court that Corey Horton exited the truck with his hands up and was completely surrounded by police officers with sufficient manpower to arrest him. In support of her conclusion that excessive force was used, the trial court judge noted that although the police officers reasonably suspected that Corey Horton was armed, no weapon was ever found.

| j>sAppellants argue that the trial court’s conclusion is manifestly erroneous in that it discounts the uncontradicted expert testimony of Dr. McGarry, misinterprets the undisputed physical evidence, and unduly relies upon the testimony of the three independent witnesses. With regard to these witnesses, appellants argue that neither Mr.or Mrs. Martin was able to see the actual shooting take place, and that the testimony of Nicole Brown conflicted with virtually all the scientific and physical evidence. Appellants further argue that the fact that Sgt. Fanguy fired one shot in contact with Corey Horton’s chest and another shot into the back of Corey’s head supports the conclusion that a struggle occurred rather than the opposite conclusion, as indicated by the trial court. Finally, appellants assert that in the absence of a struggle, there is no plausible explanation for the fact that Sgt. Fanguy apparently fired a random shot to the ground grazing his own leg, injuring himself, or for the fact that Sgt. Fanguy himself ended up lying on the ground next to Corey Horton.

Our task is to determine whether the trial court’s conclusion that Sgt. Fanguy employed excessive force is reasonable considering the record as a whole. We find that it is not.

We first note that the trial court apparently based its decision at least in part on several erroneous assumptions about the evidence. In its reasons for judgment, the trial court states that Dr. McGarry admitted if Sgt. Fanguy fired the first shot in contact with Corey Horton’s chest, Sgt. Fanguy would have had to then roll forty degrees to his right and shoot from behind his head to fire the second shot into the back of Corey’s head. The trial court’s characterization does not match Dr. McGarry’s testimony, however. Dr. McGarry indicated that if Sgt. Fanguy was still facing Corey Horton (and both were on the ground) when the second shot was | yffired, Corey Horton would have had to roll his head forty degrees to the right for the bullet to have entered where it did, which movement Dr. McGarry confirmed was possible. Later, in the reasons for judgment, the trial court notes that Sgt. Fanguy testified to having fired two shots as he lay on the ground facing Corey Horton, but Sgt. Fanguy did not so testify; he always maintained that he fired the first shot during a struggle for the gun as he and Corey Horton were falling to the ground. Finally, the trial court indicates in its reasons for judgment that Mr. Giblin believed Corey Horton’s shirt would have been twisted, rather than pulled up as it was, had there been a struggle. However, this is not an accurate description of Mr. Giblin’s testimony. According to the record, Mr. Giblin opined that either scenario — the shirt pushed up or the shirt twisted — would be indicative of a struggle.

Apparently based upon these inaccurate assumptions about the testimony, the trial court concluded that the physical evidence did not support Sgt. Fanguy’s version of how the shooting occurred. We find, however, that the trial court’s clearly inaccurate characterization of pertinent evidence constitutes manifest error. Under the law, our finding that a manifest error of material fact has been made in the trial court compels us to redetermine the facts by reviewing the entire record de novo. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Upon de novo review, we conclude that the plaintiff failed to meet her burden of proving by a preponderance of the evidence that Sgt. Fanguy employed excessive force. Rather, we find that the record in this case presents the situation in which the totality of the evidence, and the inferences to be drawn from it, does not preponderate in favor of either the plaintiff or the defendants.

| j>BSgt. Fanguy and Officer Polito both testified that Corey Horton reached toward his waistband as if he had a weapon, and then put his hand over Sgt. Fanguy’s hand that held his gun, which precipitated a struggle. Both Officer Polito and Officer Cañedo heard Sgt. Fanguy shout, “He’s got my gun.” The only forensics expert who testified was Dr. McGarry, who opined that the physical evidence indicated that a struggle had occurred. Although he admitted on cross-examination that some of the abrasions and bruising on Mr. Horton’s body could have been caused without a struggle having taken place, he was nevertheless convinced that all the physical evidence taken together clearly indicated a struggle. The results of Dr. McGarry’s autopsy were confirmed by a second autopsy and report done at the behest of the FBI, which was also introduced as evidence. Thus, the sole expert testimony and the physical evidence in the case support Sgt. Fanguy’s and Officer Polito’s account of how the shooting transpired.

However, the testimony of the fact witnesses is in conflict. Sgt. Fanguy and Officer Polito were the only two persons who actually saw what happened between Sgt. Fanguy and Corey Horton. Their version of events is contradicted by the testimony of the three independent eyewitnesses and the two people who were riding in the truck with Corey Horton, none of whom had a completely unobstructed view of the incident. Two of the independent eyewitnesses, Mr. ■ and Mrs. Martin, had their view impeded by the blue truck; however, each believed he saw one of the police officers stretch his arm out and recoil it back as if he had shot a gun, presumably from a standing position. The third witness was Nicole Brown, who testified by way of deposition. Ms. Brown, although she did not actually see Sgt. Fan-guy shoot Corey Horton, testified that she had an unobstructed view from her driveway; that as soon as Corey Horton exited the truck he turned to face in her Indirection and remained facing her the entire time; and finally, that she was certain Corey Horton’s hands were either out in front of him or up in the air from the time he exited the truck until the time the first shot was fired. Although the testimony of these witnesses sometimes diverged as to certain details and as to the sequence of events, none of the three ever saw Corey Horton struggle with the officers.

We recognize that great deference is owed to the trial court in making credibility calls. Rosell v. ESCO, supra, at 844. However, where documents or objective evidence so contradict a 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 story, thé appellate court may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Id. at 844-845; Rosenthal v. Betsy’s Pancake House, Inc., 2000-1546, p. 8 (La.App. 4 Cir. 5/16/2001), 789 So.2d 35, 40. In the instant case, the trial court found that the police officers justifiably believed Corey Horton could have been armed, but the court apparently disbelieved the officers’ testimony that Corey reached for and then tried to take control of Sgt. Fanguy’s gun. Moreover, the court obviously believed the witnesses who testified that Corey Horton was cooperative at all times, and was especiálly persuaded by the testimony of the three independent witnesses.

Nevertheless, we find the trial court’s conclusion based on this testimony to be unreasonable. The record clearly shows that Mr. and Mrs. Martin had an obstructed view of the scene and were too far away to give definitive testimony as to what occurred. Nicole Brown, who said her view was unobstructed, also testified that Corey Horton was facing her the entire time until he was shot. Under |CTthe factual scenarios propounded by both the plaintiff and the defendants, however, Sgt. Fanguy was facing Corey Horton, which would mean that he was between Corey Horton and Nicole Brown. Therefore, the fact that Nicole Brown saw Corey Horton’s hands stretched out in front of him, toward Sgt. Fanguy, would not necessarily exclude the possibility that Corey Horton reached for Sgt. Fanguy’s gun at some point, without this motion having been in Nicole Brown’s direct view. However, to meet her burden of proof, the plaintiff had to show, considering the factors enunciated by the Louisiana Supreme Court in Kyle v. City of New Orleans, that Sgt. Fanguy’s use of force was unjustified. Under the circumstances, Corey Horton’s mere reaching for the gun clearly would have justified Sgt. Fanguy’s use of force to repel him. Thus, even if we were to discount the testimony of the police officers, as the trial court obviously did, we still cannot find, on the basis of this record, that the plaintiff met her burden to affirmatively prove her case. Even though a trial court may disregard the testimony of a defense witness, the court’s refusal to credit such testimony cannot act as affirmative proof in favor of the plaintiff. Stroik v. Ponseti, supra, pp. 11-12, 699 So.2d at 1080.

Therefore, because the plaintiff had the burden to prove by a preponderance of the evidence that Sgt. Fanguy used excessive force and failed to meet that burden, we hold that the trial court was clearly wrong in ruling in favor of the plaintiff. On the basis of the record, we reverse the trial court’s finding of liability on the part of the defendants and the subsequent award of damages based upon that finding.

^CONCLUSION

Accordingly, for the reasons stated, we reverse the judgments rendered by the trial court on November 10, 2004, and on February 16, 2005.

REVERSED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissenting.

b The unarmed seventeen year old was killed instantaneously when the first bullet tore through his torso. As he lay dead on the pavement, three additional shots were fired into the back of his skull, face and lower back. The exact sequence of events that led to the death of Corey Horton continues to generate discussion, debate and speculation of what happened that August afternoon in 1991.

After weighing the testimony of seven witnesses and evaluating the exhibits entered into evidence over a three-day trial, the presiding judge found that Sgt. Fan-guy used excessive force in subduing Corey Horton. The majority opinion disagrees and dismisses the factual findings of the trial court, reversing the judgment.

I dissent.

To warrant a reversal, the majority painstakingly compares what they believe may have been borne out by the evidence to the reasons issued by the trial |2court. The exercise is completed with the proclamation that “the totality of the evidence, and the inferences to be drawn from it, does not preponderate in favor of either the plaintiff or the defendants.” This statement suggests that reasonable minds differ on the significance of the evidence. If so, the trier of fact cannot be clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Ordinarily, a trial court decision outlines some of the relevant factors that impressed and influenced the outcome of the trial. Rarely does it include every detail. The degree of analysis employed by the majority, suggests that trial judges must use the strongest language in accepting, rejecting or discounting the influence of testimony or an exhibit. Otherwise, speculation and supposition will be applied when attempting to determine what the trial court meant when it rejected or accepted testimony.

Moreover, great discretion is afforded the trial judge because only they have the opportunity to see and hear all facets of the record. Their front row seats afford them the ability to draw conclusions about the candor or lack there of on the part of the particular witness, party or attorney. They and they alone have first hand knowledge of the tone, tenor and volume of a witness’s response. Only the trial judge is in the position to weigh the eye contact, facial expressions and body language of each witness as the trial develops. Nonverbal communication can be as important as the verbal utterances reflected in the cold transcript. See, Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The difference of opinion of the appellate panel is simply not enough to alter the findings of the trial court. In Ambrose v. New Orleans Police Dept. Ambulance Service, 689 So.2d 216 (La.1994), the Supreme Court cautioned the appellate court not to re-weigh the evidence or to substitute its factual findings for that of the trial court’s. Accordingly, it is this court’s | sconstitutional duty to review the facts, not to decide if it, as a reviewing court, would have found the facts differently. Id. at 221. Although the majority acknowledges that great deference is owed the trial court, it appears they chose not to afford such deference in this case. While the majority’s rendition of the relevant facts seems plausible, it seems no more reasonable than that of the factfinder’s. Therefore, the longstanding jurisprudence controlling the appellate court’s authority as a court of review mandates an affirmation in this matter.

The record reflects a reasonable factual basis for the trial court’s findings and therefore I would affirm the trial court.

      . Just prior to the commencement of the trial, plaintiffs’ counsel voluntarily dismissed the claims of Lekiksha Thompson, individually, and of Alethea Smith, individually and on behalf of her minor child, Angelnic Smith, and as the administratrix of the estate of her deceased minor child, Anthony Corey Smith.

      . Prior to trial, plaintiffs voluntarily dismissed defendants Robert Cañedo, Arnesta Taylor, and Sidney Barthelemy. At the beginning of trial, the court, upon the motion of the defendants, dismissed all claims against deceased officer, Frank Polito, on the basis that plaintiffs had not substituted a viable party in his place.

      . Medical records from Charity Hospital introduced into evidence confirm that Sgt. Fan-guy was treated for a graze wound and swelling of the knee.

      . The physical evidence showed that Sgt. Fan-guy was wearing a white shirt and blue jeans at the time of the incident.

      . At a later point in the deposition, Officer Polito testified that Sgt. Fanguy yelled he was shot after the first gunshot, not the second.

      . The crime lab report confirmed that of the two bullets on the ground, one was fired from Sgt. Fanguy’s gun, and one was fired from Officer Polito’s gun.

      . We note, however, that because Nicole Brown’s testimony was by deposition only, the trial court was in no better position to assess credibility than is this court, and the usual requirement of giving deference to the trial court does not apply.

      . Kyle v. City of New Orleans, supra, 353 So.2d at 973.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Darnell SMITH.
    No. 2006-KA-0318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

On July 13, 2004 the State filed a bill of information charging the defendant-appellant Darnell Smith with one count of simple burglary, a violation of La. R.S. 14:62. The defendant entered a not guilty plea at his arraignment on July 20, 2004. On March 2, 2005 the State amended the bill of information to change the name of the owner of the structure; the defendant reentered a plea of not guilty. Trial then proceeded before a six-person jury which returned a verdict of guilty as charged the same day. On March 30, 2005 the court sentenced the defendant to serve six years at hard labor. The State subsequently filed a multiple bill of information. The court held a hearing on July 6, 2005 and found the defendant not guilty as a multiple offender, although the minute entry erroneously indicates that he was found guilty. The trial court granted the defendant’s motion for an appeal and denied the motion to reconsider sentence.

STATEMENT OF THE FACTS

On June 15, 2004 at approximately 11:30 p.m., Savanna Delaplaine was reading in bed at her home at 1635 First Street when she heard a noise outside. |¡¡When the noise was repeated, she got up and looked outside. She saw a light on in the budding next door, which was under renovation. Knowing that no lights should be on at night, she went to another room for a better view. She looked through the window and saw the defendant sitting in a chair. She also noticed a chain, which at first she thought was actually on the defendant as a restraint. However, as she watched more, she realized that the defendant had a saw and was attempting to saw through the chain. Ms. Delaplaine then called 911, reporting a possible burglary at 1633 First Street.

Officer Russell Philabert of the New Orleans Police Department Sixth District was the first officer to respond to the 911 call of a burglary. When he arrived, without lights or siren, he met with Ms. Dela-plaine. She invited him into her home so that he could look through the window as she had done. Officer Philabert did so, and from his vantage point he saw the defendant sitting in a chair with a saw trying to cut through a chain. The room where the defendant was sitting was illuminated with a shop light. Officer Phila-bert related his observations over the police radio. Officer Philabert saw Detective Fred Fath enter the room and apprehended the defendant. After the defendant was removed from the scene, Officer Phila-bert entered the building and directed the crime lab personnel to take photographs, which he identified at trial. The photographs depicted a scoop-type saw, a chain, and various items to which the chain was attached.

Detective Fred Fath testified at trial that he was one of the police officers who responded to the 911 call of a burglary in progress at 1633 First Street. Because there was a wooden fence in front of the property, he could not see inside the first floor. However, over the police radio he heard Officer Philabert describing where the subject was and what he was doing. Detective Fath accessed [sthe property by jumping a four-foot fence near the side driveway, and then he quietly entered the building. Once inside, he saw a light on in a room and observed the defendant sitting in a chair with his back to him. Detective Fath came up behind the defendant and demanded to know what the defendant was doing in the building. The defendant, who was still in the act of sawing through the chain, replied that he was watching the house. The officers immediately detained the defendant while the owner of the building was contacted. The defendant was arrested for burglary after the police learned that no one was supposed to be inside.

Detective Fath also identified photographs taken from the scene. He noted that the chain which the defendant was cutting was linked through various tools to secure them. Also, the detective testified that he learned that the defendant lived approximately two blocks from the crime scene.

John Schackai testified that he was a co-owner of the property located at 1633 First Street; he and his partner owned the property through a partnership, First Street Condos, LLC. He stated that the property was under renovation on June 15, 2004, and that he and his partner were acting as the general contractors. He stated that neither he nor his partner had hired the defendant to work on the property, nor had they given him permission to be there. He further testified that work at the property generally stopped at 3:30 p.m., although the plumbers stayed until 4:30 p.m. and then locked up.

The defense presented no witnesses at trial.

ERRORS PATENT

A review of the record for errors patent reveals that there are none.

I ¿DISCUSSION

In his sole assignment of error the appellant contends that the evidence was insufficient to sustain the conviction. Specifically, he contends that there was no evidence to establish that he did not have permission to be on the premises from one of the subcontractors who was working on the property. He notes that there was no forced entry, apparently to help bolster his argument that his entry was not unauthorized. The appellant also argues that the testimony of Mr. Schackai that the workers were gone by 4:30 p.m. referenced the date of June 15, 2005, but that the bill of information charged him with unauthorized entry on June 11, 2005 Thus, he argues, the State failed to negate the possibility that the defendant was present “watching the house” on June 11, 2004 with the permission of one of the subcontractors.

The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is to consider the record as a whole and not just evidence most favorable to the prosecution; and if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305, 1311 (La.1988). Additionally, the reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Id. The trier of fact’s determination of credibility is not to be disturbed on appeal absent an abuse of discretion. State v. Cashen, 544 So.2d 1268, 1275 (La.App. 4Cir.1989).

|sWhen circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Rather, this court when evaluating the evidence in the light most favorable to the prosecution, must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. This is not separate test from Jackson, but is instead an evidentiary guideline for the jury when considering circumstantial evidence, and this test facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984).

La. R.S. 14:62 defines simple burglary as the unauthorized entry of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than set forth in La. R.S. 14:60. To convict a defendant of simple burglary, the state must prove beyond a reasonable doubt that the defendant entered the structure or vehicle without authorization and had the specific intent to commit a felony or theft therein. State v. Ewens, 98-1096 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 93. Specific intent is a state of mind that need not be proven as fact but may be inferred from circumstances and the actions of the defendant. State v. Bailey, 00-1398 (La.App. 5 Cir. 2/14/01), 782 So.2d 22, 24.

First, it must be noted that the appellant’s argument is in large part predicated on the assertion that the date of the offense as charged in the bill differs from the date referenced in the testimony. It is unclear how the appellant came to |fithe conclusion that the bill charged the appellant with committing the crime on June 11, 2005 as the bill of information quite clearly states that the crime occurred on the “15TH day of JUNE”. John Schackai testified clearly that he was one of the owners of the property, that he and his partner were acting as the general contractors, and that the defendant had not been hired to help renovate the property. Furthermore, he testified that the defendant had not been given permission to enter the property. Finally, and most importantly, he testified on cross-examination that, to his knowledge, the work being performed on June 15th stopped at 4:30 p.m. and that the plumbers locked up at that time.

Although the defendant told Detective Fath that he was on the property to watch it, Mr. Schackai testified that the property was secured by 4:30 p.m. Moreover, he testified that the work generally ended by 3:30 p.m. He did not testify that he and his partner had hired anyone as a night watchman, nor had they directed the supervisor of the job site to do so. Furthermore, when the defendant was under surveillance, he was observed trying to cut through a chain which secured various tools at the site. Thus, he was not watching the site at all. Also, Ms. Delaplaine testified she had previously lived in the building next door, that she knew it was being renovated, and that she knew no one was supposed to be there. She stated that she “knew that almost everyday at 3:30, six days a week, occasionally seven days a week, everyone that was working on the job was primarily gone. There was a padlock on it. And just from being there constantly, ... [she] knew that no one should be in there at that time of the night.” As to the lack of forced entry, Ms-. Delaplaine testified that she could see into the room 17where the defendant was sitting because there were no window coverings and some of the windows were open.

Taking all of the testimony in the light most favorable to the prosecution, the State provided sufficient evidence to rebut the appellant’s hypothesis of innocence that he was on the premises with' the permission of the owners or their agents. This assignment of error lacks merit.

CONCLUSION

For the reasons stated above appellant’s conviction and sentence are affirmed.

AFFIRMED.

      . The appellant’s reference to the year of 2005 is made throughout his brief, although the testimony and the bill of information consistently refer to 2004. The issue of the year is not a part of the appellant’s argument. Interestingly, the State in its brief does not address the fact that the bill of information had the correct date listed.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Johnny KELLY.
    No. 2006-KA-0475.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA; for Defendant/Appellant.
    (Court composed of Judge Max N. Tobias Jr., Judge David S. Gorbaty, Judge Edwin A. Lombard).
   EDWIN A. LOMBARD, Judge.

hThe State charged defendant with simple possession of heroin ■ in violation of La.Rev.Stat. 40:966. After the trial court heard and denied a motion to suppress the evidence, the defendant pleaded guilty as charged, reserving his right to appeal the court’s adverse ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La. 1976). The court sentenced the defendant to four years imprisonment at hard labor, suspended, and placed him on active probation for two. After reviewing the record in light of the applicable law and arguments of the parties, we find no error in the trial court judgment denying the defendant’s motion to suppress.

Burden of Proof and Standard of Review

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; Payton v. New York, 445 U.S. 57.3, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (warrantless entries into the home for arrest or seizure are invalid in the absence of exigent circumstances). Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. I § 5. Accordingly, because the 12evidence in this case was seized without a warrant as required by the Fourth Amendment of the U.S. Constitution and the Louisiana Constitution, Art. I § 5, the burden is on the State to show that a search is justified by some exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29 (La.1985); State v. Pomes, 376 So.2d 133 (La.1979). Trial courts are vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress .will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179 (citation omitted).

Relevant Facts

The sole witness presented by the State at the hearing on the defendant’s motion to suppress was Officer Desmond Pratt, Sr., an. officer of the New Orleans Police Department officer assigned to the Iber-ville Housing Development. Officer Pratt testified that, after receiving complaints from several residents of the housing project, an area well-known for illegal drug activity, of drug trafficking in the specific hallway of a building located in the 1300 block of Bienville and while on foot patrol of the housing project on the evening of March 18, 2005, he observed the defendant walking out of the hallway specified in the resident’s complaints and looking down at an object in his right hand. When the defendant observed the uniformed officer, he immediately closed his hand, put his hand in his pocket, and moved in a nervous manner. Officer Pratt initiated an investigatory stop of the defendant and, for safety reasons, asked him to remove his hands from his pocket. The defendant stated his name but continued to move away from the officer with his hands in his pocket. Officer Pratt physically moved to force the defendant to remove his hand from his pocket. At that point, the defendant, saying “all right, all | aright,” opened his hand to reveal a syringe and a piece of foil. The foil was found to contain a powdered substance consistent with heroin. Officer Pratt then placed the defendant under arrest.

During cross-examination, Officer Pratt explained that the hallway from which the defendant had exited contained two apartments, one of which was abandoned and one of which was occupied. He further testified that the person living in the occupied apartment was the one who complained about a person trespassing and buying drugs in the hallway.

Discussion

A police officer has the right to detain briefly and interrogate a person when the officer has a reasonable articula-ble suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.Code Crim. Proc. art. 215.1; see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (to justify investigatory stop police must articulate something more than an inchoate and unparticularized suspicion or hunch); State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048 (the level of suspicion for an investigatory stop need not rise to the probable cause required for a lawful arrest); State v. Katie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (in making a brief investigatory stop on less than probable cause to arrest, the police must have a particularized and objective basis for suspecting the particular person stopped of criminal activity); State v. Moreno, 619 So.2d 62 (La.1993) (an investigative stop must be justified by some objective manifestation that the person to be stopped is or is about to be engaged in criminal activity); State v. Williams, 421 So.2d 874 (La.1982) (mere suspicious activity is not a sufficient basis for police interference with an individual’s freedom).

|4If an officer stops a person pursuant to Article 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.Code Crim. Proc. art. 215.1(B).

Upon review, this court looks 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.” U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citation and internal quotation marks omitted); see State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268 (“reasonable suspicion” is something less than probable cause, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of an individual’s right to be free from governmental interference); see also State v. Williams, 421 So.2d 874, 875 (La.1982)(determining whether “reasonable, articulable suspicion” existed requires weighing all of the circumstances known to the police at "the time the stop was made).

In reviewing the totality of circumstances, the reputation of an area is an articulable fact upon which a police officer may legitimately rely and is therefore relevant in the determination of reasonable suspicion. State v. Buckley, 426 So.2d 103, 108 (La.1983) (citing U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Edüd 607 (1975)). Pertinent facts and circumstances must be articulated, i.e., testified to in court by law enforcement officials. State v. Temple, 2002-1895, p. 6 (La.9/9/03), 854 So.2d 856, 860; State v. Hughes, 99-2554 (La.App. 4 Cir. 5/31/00), 765 So.2d 423, urrit denied 00-1981 (La.6/1/01), 793 So.2d 179 (state failed to elicit adequate information from the officers to support a finding of reasonable suspicion); State v. Ellington, 96 — 0766 (La.App. 4 Cir.9/4/96), 680 So.2d 174 (officer failed to testify as to sufficient particular facts to justify stop or subsequent pat-down frisk); State v. Williams, 621 So.2d 199, 201 (La.App. 4 Cir.1993) (testimony that defendant standing in courtyard of housing project turned, walked away, and “foolfed] with his belt area” upon seeing police did not justify initial stop, and even if stop was legal, officers provided no evidence to justify subsequent pat-down frisk).

In this case, the police officer articulated an objective justification for the investigatory stop: After receiving complaints from a resident of a particular building about drug transactions occurring in the hallway of building, he observed the defendant walk out of that particular hallway with something in his hand that he furtively put in his pocket upon seeing the uniformed police officer. After initiating the investigatory stop, to insure his own safety the police officer was clearly justified in asking the defendant to remove his hands from his pockets and in taking action to insure immediate compliance with that request. Once his hand was removed from his pocket, the defendant said, “all right, all right” and opened his hand, revealing the evidence he seeks to suppress, a syringe and packet of heroin. Under these circumstances, we find no error in the trial court’s denial of the defendant’s motion to suppress the evidence.

Conclusion

For the foregoing reasons, we find that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the evidence. Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    Ernest BATTLE v. WATSON INVESTMENTS, INC., formerly known as and/or dba Bill Watson Investments, Inc., formerly known as and/or dba Bill Watson Ford, Inc., GAN North American Insurance Company, Allstate Insurance Company, and Michael Logan Watson Investments, Inc. and GAN North American Insurance Company v. Ernest Battle.
    Nos. 2006-CA-0202, 2006-CA-0203.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Julien F. Jurgens, James G. Kambur, Kambur Law Firm, New Orleans, LA, for Ernest Battle.
    Donald C. Douglas, Jr., Blue Williams, L.L.P., Metairie, LA, for Watson Investments, Inc. d/b/a Bill Watson Ford and GAN North American Insurance Company.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

LGAN North American Insurance Company (“GAN”) appeals .the declaratory judgment finding that GAN’s insurance policy provided omnibus coverage for an employee who was driving a loaner vehicle owned by Bill Watson Ford (“Bill Watson”). We affirm.

FACTS AND PROCEDURAL HISTORY

On August 10, 1997, an automobile accident occurred between Ernest Battle and Michael Logan on 1-10 East near Michoud Boulevard. Mr. Logan rear-ended Mr. Battle, causing Mr. Battle to suffer severe neck and back injuries. Mr. Logan, a salesperson at Bill Watson, was driving one of the dealership’s “loaner” vehicles at the time of the accident. Mr. Logan was driving the loaner vehicle because his personal vehicle would not start at the end of his shift, at approximately 10:00 p.m., on August 9, 1997. At that time, because no mechanics were available to inspect Mr. Logan’s vehicle and assess the starting problem, Mr. Logan received permission from his supervisor to drive a loaner vehicle for the weekend, filled out a loan agreement, and left his vehicle and keys at the dealership.

| gBill Watson was self-insured for the vehicle and had a liability policy in effect through GAN. Mr. Battle settled with Mr. Logan and Mr. Logan’s insurance carrier, Allstate, for $25,000, and now seeks to recover from Bill Watson through the GAN liability policy.

Both parties agree that the GAN policy is strictly limited to Bill Watson employees and specifically excludes coverage for “customers” of the dealership. However, Mr. Battle argues that Mr. Logan received the loaner car because of his employee status and was therefore not a Bill Watson “customer.” Accordingly, Mr. Battle argues, because Mr. Logan was not a customer of the dealership, the accident is covered by the policy. Conversely, GAN asserts that Mr. Logan was not acting as an employee at the time of the accident, but rather as a customer, and that the GAN does not afford coverage for the accident. Additionally, GAN argues that the trial court improperly admitted into evidence and relied upon the deposition testimony of Michael Logan.

GAN filed a Motion for Declaratory Judgment to determine whether the GAN policy covered Michael Logan at the time of the accident. After a bench trial, the court found that Mr. Logan was not excluded from coverage under the GAN policy because he had received the loaner car due to his status as an employee, rather than his status as a potential customer of the dealership.

STANDARD OF REVIEW

It is well settled that with regard to the standard of review of a declaratory judgment action that “[o]n appeal, the scope of appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or ^refusing to render a declaratory judgment.” Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery Marketplace, 847 So.2d 674, 677, 2002-2337, p. 4-5 (La.App. 4 Cir. 5/7/03)(quoting In re Peter, 98-0701, p. 4-5 (La.App. 4 Cir 12/23/98), 735 So.2d 665, 667). See also Miller v. Seven C’s Properties, L.L.C., 2001-543 (La.App. 3 Cir. 11/21/01) 800 So.2d 406; Ricard v. State, 544 So.2d 1310 (La.App. 4 Cir.1989). Moreover, the Louisiana Supreme Court has held that “[t]rial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.” Jackson Brewery, 847 So.2d at 677-78 (quoting Louisiana Supreme Court Committee on Bar Admissions v. Roberts, 2000-2517, p. 3 (La.2/21/01), 779 So.2d 726, 728).

DISCUSSION

We first address GAN’s argument that the trial court improperly admitted the deposition testimony of Michael Logan as hearsay. When making a determination regarding the effect of an alleged error, a court examines “whether the error, if any, when compared to the record as a whole, has a substantial effect on the outcome of the case.” LaCombe v. (Dr. Walter Olin) Moss Regional Hospital, 617 So.2d 612, 618 (La.App. 3 Cir.1993). See also American Mfrs. Mut. Ins. v. CMC, 582 So.2d 934, 938 (La.App. 2 Cir.1991). Even if the trial court improperly admitted Mr. Logan’s deposition, we find that it would not have had a significant impact on the outcome of the case. Accordingly, the alleged error, if any, was harmless. La-Combe, 617 So.2d at 618.

GAN’s argument that the trial court improperly relied upon Mr. Logan’s deposition testimony is also without merit. Numerous depositions were taken in this case; nothing in the record suggests that the trial court relied only on Mr. Logan’s deposition testimony in reaching its decision, or that the trial court relied |4more heavily upon Mr. Logan’s testimony than any of the other testimony that was offered, without objection, into evidence.

Next, we address whether the trial court erred in finding that Michael Logan was not excluded from coverage under the GAN policy. Calvin Liggett, the general manager and corporate representative of Bill Watson, testified that Bill Watson had no written policy or procedure governing the circumstances under which employees may use company vehicles, and that customers and employees alike must complete a loan agreement in order to receive a loaner vehicle, as Michael Logan did in this case. When questioned about the types of situations in which Bill Watson employees are permitted to use company vehicles, Mr. Liggett testified that employees wishing to drive a loaner vehicle are to “get with a supervisor and to state whatever dilemma they may have” in order to obtain a supervisor’s approval for a loaner vehicle. Mr. Liggett further testified that the decision of whether to allow an employee to take a loaner vehicle was “strictly determined on the employee, the situation that they’re in, the turnaround time of when we would expect the vehicle back, and of course, just the understanding of keeping the vehicle in close proximity while it’s in use.”

Additionally, Joseph Nelson, a corporate comptroller for Bill Watson, testified that “[tjhere in actuality and in practice probably were differing standards as to who was given transportation assistance when their vehicle was ... in for repair.” Mr. Nelson further testified that “[depending on the employee, his or her tenure with the company and the position that they held probably would influence the decision and the frequency maybe with which they had previously made similar requests” would all play a role in determining whether an employee received a loaner vehicle. Finally, Mr. Nelson testified that “the request would still 1 Rhave to go before the employee’s immediate supervisor and/or some higher levels with in the ranks, as in this case Cal Liggett was the one who ... approved it and ... instructed Ronna Bennett to ... get[ ] Mike [Logan] a vehicle that Saturday evening.”

Although Mr. Liggett testified that it was not an official policy of Bill Watson to allow salespeople to borrow Bill Watson’s vehicles for purely personal reasons, Mr. Nelson testified that “there were some cases of [employees using loaner vehicles for reasons other than their personal vehicle being repaired].” Additionally, Mr. Logan testified that he had previously received loaner vehicles for his personal use approximately three times over a two-year period due to his status as an employee.

Finally, we note that both parties’ briefs reference Baker v. Kenney, 767 So.2d 711 (La.App. 4 Cir. 5/3/00), writ denied, 771 So.2d 650 (La.10/13/03) and Gambino v. Lamulle, 715 So.2d 574 (La.App. 4 Cir. 6/10/98). The Gambino and Baker cases are inapposite to the facts here. Both Baker and Gambino involved individuals who were, in fact, customers. While GAN correctly observes that the policies in Baker and Gambino are similar to the GAN policy with regard to the policy language explicitly excluding “customers” from coverage, the fact remains that the trial court found that Mr. Logan was not a customer of the dealership, and accordingly held that he was permitted to drive the loaner vehicle solely because of his employee status. The trial court did not abuse its discretion in so finding. We therefore affirm the trial court’s holding that the GAN policy affords coverage in this case.

^CONCLUSION

The judgment of the trial court finding that the GAN insurance policy provided coverage to Michael Logan as an employee is hereby affirmed.

AFFIRMED.

      . Mr. Logan ultimately did not have his vehicle repaired at the dealership. The service department determined that the starting problem was due to a dead battery, and Mr. Logan chose to purchase and install a new battery himself.

      . Both Logan and Allstate have been dismissed from the lawsuit. The trial court also dismissed the claims against Watson Investments, Inc. (d/b/a Bill Watson Ford).

      . Mr. Logan testified that he recalled using a loaner vehicle from Bill Watson on three separate occasions: once to move some furniture, once “for pleasure on the weekend” and once when his personal vehicle was being repaired.


text:
    Maxwell MONTRELL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Paula Engnath.
    No. 2006-CA-0054.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Melvin N. Cade, Louis A. Gerdes, Jr., New Orleans, LA, for PlaintiffAppellee.
    Lindsay A. Larson III, David A. Strauss, Christian A. Garbett, King, Leblanc and Bland, P.L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

h State Farm Mutual Automobile Insurance Company (“State Farm”), seeks reversal of the trial court’s judgment that awarded the plaintiff $1,915.00 in special damages and $5,000.00 in general damages. It is appealing on two bases. First, State Farm contends it should have been dismissed because it is not subject to a direct action under Louisiana’s Direct Action Statute. Second, it contends that the trial court erred' in awarding damages to the plaintiff for his pain and suffering.

FACTS

The plaintiff brought suit following an automobile collision on September 24, 2002 between himself and State Farm’s insured, Paula Engnath. Following the accident, plaintiff claimed damages to both his body and vehicle; he was treated for these injuries for five months. A few months after the accident plaintiff was also treated for heroin addiction at Charity Hospital. During his rehabilitation and treatment plaintiff made no complaints about the injuries he sustained in the accident.

When the accident occurred Ms. Eng-nath gave her address and policy information to the plaintiff. The plaintiff requested that Ms. Engnath be served at [2this address. However, service attempted at this location was unsuccessful. The return indicated that Ms. Engnath was no longer residing there and that she had moved to LaPlace; no additional service information was provided. Following the unsuccessful attempt to serve Ms. Engnath, State Farm moved to dismiss her and itself. The trial court granted the motion as to Ms. Eng-nath but denied it as to State Farm finding it was amenable to suit under Louisiana’s Direct Action Statute, La.R.S. 22:655.

DISCUSSION

|3In its first assignment of error, State Farm contends that the trial court erred in applying the Louisiana’s Direct Action Statute to it in this case. Insofar as is here relevant, the statute provides that a plaintiff may sue an insurer directly if service of citation or other process cannot be made on the insured. La. R.S. § 22:655(B)(l)(c). State Farm asserts that plaintiffs single attempt to perfect service of process at the beginning of the litigation was insufficient to authorize plaintiffs direct action herein.

State Farm asserts that the standard for service of process is one of reasonable diligence. Harrison v. Lenoir, 745 So.2d 1191 (La.App. 1st Cir.1999). In Harrison, the First Circuit examined the standards for service of process on a defendant for a tax sale affecting his property. Id. The court ruled that the sheriff had served insufficient notice of the sale when he simply attempted to serve and service failed. Id. However, as the court specifically noted, a sale of one’s property for nonpayment of taxes is something that affects the a property owner’s rights under the Fourteenth Amendment’s Due Process Clause. Id. at 1192. Therefore, the state must provide “notice reasonably calculated, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. While standards presented by Lenoir are legitimate, they are put in place to preserve the rights of property owner. The facts of that case are distinguished from the present matter. This is not a case regarding a potential loss of property for nonpayment of taxes. Unlike the circumstance in Lenoir, neither Ms. Engnath’s property rights nor Constitutional issues were threatened by the inability to serve her.

Insurance is a contract that benefits a third party, and the Civil Code calls such a contract a stipulation pour autrui, or for a third party. La. C.C. art. 1978. The l4Civil Code also recognizes that the stipulation gives the third party beneficiary the right to demand performance from the promisor. La. C.C. art. 1981. These are the underpinnings for the Louisiana Direct Action Statute.

The Louisiana Direct Action Statute, supra, has been held to create substantive rights and has a long history of interpretation. H. Alston Johnson, The Louisiana Direct Action Statute, 43 La.L.R. 1455, 1486 (1983); See also, Edwards v. Fidelity Casualty Co., 11 La.App. 176, 123 So. 162 (Orl.1929) and Hidalgo v. Fidelity Cas. Co. of N. Y., (W.D.La.1952), 104 F.Supp. 230, affirmed 205 F.2d 834.

More recently the Louisiana Supreme Court clarified that the direct action statute does not create an independent cause of action against an insurer, but merely grants a procedural right of action against an insurer where plaintiff has a substantive cause of action against insured. Descant v. Administrators of Tulane Educational Fund, Sup.1994, 1993-3098 (La.7/5/94) 639 So.2d 246.

Historically, the direct action statute made insurers imperfectly solidarily bound with the insured. H. Alston Johnson, su-pra⅜ 43 La.L.R. at 1507. The obligation was considered imperfect because it arose when two or more persons are bound for the same debt, but from different sources. Since the obligation of the tortfeasor and insured here, to the victim (plaintiff) is delictual and that of the insurer is conventional, they can only be imperfectly bound. It is under the direct action statute that the insurer is liable to the claimant in solido with its insured. Rodriguez v. Louisiana Tank, Inc., 94-200 (La.App. 1 Cir. 6/23/95), 657 So.2d 1363.. We recognize that it has been held that the release of the insured does not release the insurer, so long as rights are retained against the latter. See Cunningham v. Hardware Mutual Cas. Co., 228 So.2d 700 (La.App. 1st Cir.1969).

| RAllowing the injured party to maintain an action against the tort-feasor’s insurer without first obtaining a judgment against the tort-feasor affects procedure, not substantive rights, and the application of the direct action statute does not impair obligation of contracts, violate full faith and credit clause nor deny insurer due process or equal protection. Bouis v. Aetna Cas. Sur. Co., 91 F.Supp. 954 (W.D.La. 1950).

Holding the insurer liable to the plaintiff does not contradict the direct action statute. Defendant’s assertion that plaintiff did not make a sufficient effort to serve the insured is simply not a duty imposed by the direct action statute. The insurer’s right to notice was not violated by the lack of service on the insured and its conventional obligation is still in effect. Therefore this assignment has no merit.

State Farm’s second assignment of error claims that the trial court inappropriately awarded damages to plaintiff for his medical bills and pain and suffering.

A trial court’s determination as to whether testimony is credible or the plaintiff has met his/her burden of proof is a factual determination, and not to be disturbed unless clearly wrong or there is a showing of manifest error. Fluitt v. Christus Health Center Louisiana, 935 So.2d 369 (La.App. 3rd Cir.2006).

Defendant contends that the trial court committed manifest error in awarding these damages to plaintiff because there is clear evidence that plaintiff did not experience any pain and suffering as a result of the accident. Defendant asserts that plaintiff is an unreliable witness regarding the extent of his pain and suffering | fidue to his arrest record and his varying testimony regarding the facts of the accident. Appellee underwent treatment for his injuries resulting from the accident with Ms. Engnath from September 2002 until February 2003. Although he did admit to doctors that he was not experiencing any pain during his treatment, this finding was acknowledged by the trial court and is not a call for manifest error regarding any compensation for his medical bills or pain and suffering.

Although there may have been inconsistencies in the plaintiffs testimony, it does not appear that these inconsistencies rise to the level of finding that the trial court was clearly wrong or committed manifest error in awarding the plaintiff both medical expenses and general damages. The court granted medical expenses that were incurred by the plaintiff, as well as a general damages award of $5,000.00. This reasonable amount was based on the evidence provided and accepted by the trial court. Further, the amount was not too excessive as to result in manifest error on the part of the fact finding by the trial court.

For the aforementioned reasons, we affirm the trial court.

AFFIRMED.

      . Á. No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors, mentioned in Civil Code Art. 2315.1, or heirs against the insurer.
      B. (1) The injured person or his or her survivors or heirs mentioned in .Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. However, such action may be brought against the insurer alone only when:
      (a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
      (b) The insured is insolvent;
      (c) Service of citation or other process cannot be made on the insured;
      (d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;
      (e) When the insurer is an uninsured motorist carrier; or
      (f) The insured is deceased.
      (2). This right of direct action shall exist whether or not the policy of insurance sued upon was written or delivered in the state of Louisiana and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the state of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if such provisions are not in violation of the laws of this state.
      C. It is the intent of this Section that any action brought under the provisions of this Section shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this state.
      D. It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.

        . Indeed, in McAvey v. Lee 260 F.3d 359, 57 Fed.R.Evid. Serv 511 (C.A. 5 Cir. 7/25/01) judge (formerly Justice) Dennis wrote that the 1988 amendment to the direct action statute that restricted suits against only the insurer merely set forth a procedural joinder requirement. Thus the insurer may object to non-joinder of the insured and seek dismissal if he is not joined. However, he finds that this procedural joinder right is not a substantive condition precedent to the injured plaintiff's right, remedy, and judgment against the insurer under the direct action statute.