author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Deszie WILLIAMS.
    No. 2005-KA-0459.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2006.
    Rehearing Denied April 6, 2006.

      Eddie J. Jordan, Jr., District Attorney, Yolanda J. King, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

h The appellant Deszie Williams was indicted for the second-degree murder of Lamont Mitchell. At his arraignment he pled not guilty. At the conclusion of a two-day trial, a twelve-person jury found him guilty as charged. The court denied the appellant’s motion for a new trial. After the appellant waived all delays, the court sentenced him to life imprisonment at hard labor without benefits of parole, probation, or suspension of sentence. The trial court denied the appellant’s motion for reconsideration of sentence but granted his motion for appeal. For the reasons stated below, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

At approximately 4:30 p.m. on August 4, 2003, the body of Lamont Mitchell (“Mr. Mitchell”) was found in the 1000 block of S.Lopez Street. Major Robert Chehardy (“Maj. Chehardy”), a former N.O.P.D. officer, testified that he was inside his business in the 4200 block of Euphrosine Street when a woman came in the building and told him that someone had just pushed a body out of a car around the corner. Maj. Chehardy walked to the 1000 block of S. Lopez and found the body of a man lying on the sidewalk with his feet in the street. Maj. Chehardy stated that the man had | ¡.gunshot wounds, including one that damaged the man’s left ear, and he was uncertain if the man was still alive at that point. Maj. Chehardy called the police and secured the area until the police arrived.

Detective Armando Asaro (“Det. Asaro”) testified that when he arrived on the scene he observed the dead body of a man with two gunshot wounds to the head. Det. Asaro testified that he was able to identify the body as that of Mr. Mitchell by checking the victim’s cell phone. Det. Asaro stated that he learned that Mr. Mitchell was a temporary worker at Xavier University. Det. Asaro interviewed one of Mr. Mitchell’s co-workers, Wendell Snead (“Mr. Snead”), and later showed him four photographic lineups from which he chose photos of James Bannister (“Mr. Bannister”), James Cardoza (“Mr. Cardoza”), Henry Byrd (“Mr. Byrd”), and Deszie Williams (“Defendant Williams”) as those of his co-workers with whom he last saw Mr. Mitchell. Det. Asaro testified that although he arrested all four of these men, only Defendant Williams was formally charged with the murder. Det. Asaro obtained search warrants for Defendant Williams’ car and residence and for Mr. Cardoza’s residence. Det. Asaro seized nothing from Defendant Williams’ residence, but he seized some bloody clothes from Mr. Cardoza’s house. Det. Asaro testified that he obtained statements from Mr. Snead and Mr. Bannister, and Mr. Cardoza also cooperated in the investigation. He also indicated he received a Cri-mestoppers tip, but he did not testify as to its contents. He stated that no one came forward on the day of the shooting with any information concerning the murder.

EXPERT TESTIMONY

Dr. William Newman (Dr. Newman), qualified as an expert in the field of forensic pathology, testified that Mr. Mitchell sustained four gunshot wounds, two to his head and two to his chest, one of which grazed his arm | sbefore entering his chest. Dr. Newman stated that several of these wounds would have been fatal by themselves. Because there was no stippling, Dr. Newman reasoned that the shots were fired from more than two and a half feet from the victim. He admitted that the victim’s body was wet when he received it because it had lain outside in the rain, but he did not know if the rain would have removed any gunpowder residue. Dr. Newman testified that the gunshot angles indicated the shooter was on the victim’s left side and higher than the victim. Dr. Newman further testified that blood samples taken from the victim were negative for alcohol or other commonly abused drugs.

Anna Duggar, qualified as an expert in the fields of serology, crime scene investigation, latent print analysis, hair and fiber analysis, and the collection and analysis of gunshot residue, testified that she is a criminalist for N.O.P.D. She stated that she processed Defendant Williams’s car and found possible bloodstains on the passenger side window and the door molding as well as on the front of the driver’s side seat. She dusted the exterior of the driver’s side but lifted no prints.

Officer Kenneth Leary, Jr., qualified as an expert in firearms examination, testified that he examined the bullets and fragments taken from Mr. Mitchell’s body and concluded that all of them had been fired from the same weapon.

Mr. Snead, Mr. Bannister, Mr. Byrd and Mr. Cardoza all worked with Defendant Williams at Labor Ready and were assigned to Xavier University on the date of Mr. Mitchell’s shooting. All of the gentlemen testified to the actions leading to Mr. Mitchell’s death.

1 ¿TESTIMONY OF MR. SNEAD

Mr. Snead.testified that he was a temporary worker employed by Labor Ready and assigned to Xavier University in August 2003. He testified that at that time he worked with Mr. Bannister, Mr. Cardo-za, Mr. Byrd, Mr. Mitchell, and Defendant Williams, and on most days Defendant Williams gave them rides to and from the Labor Ready office on Tulane Avenue to Xavier University. On the afternoon of August 4,. 2003, he and Charles Boone (“Mr. Boone”), another worker, elected to walk back to the Labor Ready office and left before Defendant Williams and his passengers, whom he identified as Mr. Bannister, Mr.. Cardoza, Mr. Byrd, and Mr. Mitchell. Mr. Snead testified that as he and Mr. Boone approached the Jefferson Davis Bridge over the I — 10, Defendant Williams drove up and stopped the car. He testified that Mr. Bannister, Mr. Car-doza, and Mr. Byrd got out of the car, looking dazed, and Mr. Cardoza had blood on his shirt. Mr. Snead stated that after he arrived back at the Labor Ready office, Mr. Cardoza kept-pacing and muttering, “he screwed him around bad, real bad.” Mr. Snead testified that he did not see Mr. Mitchell or Defendant Williams at the-Labor Ready office that afternoon, and he later learned that Mr. Mitchell had been murdered.

Mr. Snead testified that he viewed photographic lineups from which he chose photos of the men he saw get into Defendant Williams’ car on the afternoon of the murder. He testified that he did not know Defendant Williams enough to dislike him. Mr. Snead admitted having several prior convictions for offenses including crime against nature, prostitution, and forgery.

| .TESTIMONY OF MR. BANNISTER

Mr. Bannister testified that on August 4, 2003 he also worked at Xavier University for Labor Ready. He stated that on that date he and the others left work around 4:00 p.m., and he entered Defendant Williams’s car with Mr. Cardoza, Mr. Byrd, Mr. Mitchell, and Defendant Williams to ride back to the Labor Ready office to receive their day’s wages. He testified that he was seated in the front passenger seat, while Mr. Mitchell was seated behind him and Mr. Bannister and Mr. Cardoza were also seated in the back seat of. Defendant Williams’ car. He testified that Mr. Mitchell and . Defendant Williams usually joked around and had been doing so all day, and he saw no ill will between them up to the point of the shooting. Mr. Bannister testified that Mr. Mitchell was talking on his cell phone, and at some point Defendant Williams stopped the car in the middle of Lopez Street and asked Mr. Mitchell if he had something on his mind. Mr. Bannister testified that Mr. Mitchell did not answer because he was still on the phone. Mr.-Bannister stated that Defendant. Williams then asked Mr. Mitchell, “You want to get at me?” Defendant Williams then reached under his seat. Mr. Bannister testified that he got out of the car at that point, and as he was walking away he heard gunshots coming from inside the car. He then ran toward the Jefferson. Davis Bridge, and when he saw Defendant Williams driving by him he did not see Mr. Mitchell in the car. He also saw Mr. Byrd and Mr. Cardoza walking toward the bridge.

Mr. Bannister stated that he walked across the bridge to a convenience store at the corner of Tulane and Jefferson Davis Avenues where he met Mr. Cardoza and Mr. Byrd. After discussing the matter for approximately forty-five minutes, the men walked back to the Labor Ready office to obtain their wages, and Defendant Williams arrived about fifteen minutes later. Mr. |fiBannister stated that he rode with Defendant Williams from the Labor Ready office to Xavier University the next day in order to learn what happened after he left Defendant Williams’ car the preceding day. Mr. Bannister testified that he was not afraid of Defendant Williams despite the shooting the previous day.

Mr. Bannister admitted he was arrested with Defendant Williams, but he was never charged. He also admitted that he did not contact the police concerning his knowledge of the shooting, but he insisted that he merely wanted to get home to his family. He also testified that he initially told the police that did not see or hear the shooting and that Mr. Mitchell also exited the car. He admitted he saw blood on Mr. Cardoza’s shirt when they met after the shooting.

TESTIMONY OF MR. BYRD

Mr. Byrd testified that he also accepted a ride with Defendant Williams from Xavier University to the Labor Ready office on the day of the murder. He testified that he was sitting behind Defendant Williams, with Mr. Cardoza sitting in the middle of the back seat and Mr. Mitchell seated behind Mr. Bannister. He indicated there was some tension in the car that afternoon between Defendant Williams and Mr. Mitchell, and at some point Defendant Williams stopped the car and asked Mr. Mitchell, “You still want to get at me?” Mr. Mitchell was on the phone, but he replied affirmatively and hung up his cell phone. Mr. Byrd testified that Mr. Bannister got out of the car. Defendant Williams also exited the ear, and Mr. Byrd thought that Defendant Williams was going to fight Mr. Mitchell. Instead, Defendant Williams started shooting into the car at Mr. Mitchell, who was still' in the back seat. Mr. Byrd testified that Defendant Williams then got back into the car and drove to a vacant building on Lopez Street where he got out. Mr. 17Byrd stated that at that point, he and Mr. Cardoza exited the car and ran toward the Jefferson Davis Bridge. Mr. Byrd testified that they caught up with Mr. Bannister, and the three men crossed the bridge and went to a convenience store on the other side of the bridge and then continued on to the Labor Ready office. Mr. Byrd admitted that he was later arrested in connection with the murder when he turned himself in after learning of the warrant for his arrest. He denied receiving anything in exchange for his testimony, and he denied plotting with Mr. Bannister and Mr. Cardoza to blame the murder on Defendant Williams.

TESTIMONY OF MR. CARDOZA

Mr. Cardoza testified that he also worked at Xavier University on the day of the shooting, and he observed Defendant Williams and Mr. Mitchell arguing during the workday. Mr. Cardoza stated on the ride back to the Labor Ready office at the end of the day, he was seated in the back seat between Mr. Byrd and Mr. Mitchell. He testified that Defendant Williams’ car had only two doors. Mr. Cardoza indicated that during the ride, Mr. Mitchell asked Defendant Williams about Defendant Williams having any “Black and Milds,” and Defendant Williams replied that he had just smoked one, but he only smoked one a day. After this exchange, Defendant Williams asked Mr. Mitchell if he still wanted to get at him. Mr. Mitchell replied affirmatively, and Defendant Williams stopped the car, got out, and asked Mr. Mitchell the same question. Mr. Cardoza testified that Mr. Mitchell replied, “Yeah, I want to get at you.” Defendant Williams then asked the same question a third time and began shooting at Mr. Mitchell. Mr. Cardoza testified he pushed Mr. Byrd out of the way. Mr. Cardoza stated that Mr. Bannister had left the car before the shooting when Mr. Bannister noticed Defendant Williams’ gun. Defendant Williams then got pback in the car and drove off. Mr. Cardoza testified that Mr. Mitchell fell against him, getting blood on his shirt. Defendant Williams drove to a nearby intersection, where he stopped the car and exited. At that point, Mr. Cardo-za and Mr. Byrd got out of the car and ran toward the bridge. Mr. Cardoza testified that he could see Defendant Williams dumping Mr. Mitchell’s body out of the car as Mr. Cardoza and Mr. Byrd ran away.

Mr. Cardoza testified that he and Mr. Byrd met up with Mr. Bannister, and they walked across the bridge and eventually to the Labor Ready office. He indicated that he saw Defendant Williams at the Labor Ready office that evening and again the next day. Mr. Cardoza testified that he did not call the police because he was afraid, but he was eventually arrested for the murder. He identified the bloody clothing seized from his residence as what he was wearing on the day of the murder. He denied shooting Mr. Mitchell. He admitted having a prior armed robbery conviction in 1989, and he denied receiving any offers in exchange for his testimony. Mr. Cardoza positively identified Defendant Williams as the man who shot Mr. Mitchell.

ERRORS PATENT

A review of the record reveals there are no patent errors.

RELEASE OF INFORMATION REGARDING PAYMENT BY CRIMES-TOPPERS

In his first argument, Defendant Williams contends that the trial court erred by denying his request for the production of information concerning any payments made by Crimestoppers for tips given in connection with this case. In his motion for this disclosure, he asserted that the State admitted prior to trial that Cri-mestoppers received a tip from one of the other three men in the car just prior to the shooting who implicated him in the murder. He maintained that he needed this information for impeachment purposes to |flshow a financial incentive for that witness’ identification of him as the man who shot the victim. The court denied the motion. At trial, defense counsel ascertained from Det. Asaro that the police had received a tip from Crimestoppers concerning the case. After Det. Asaro stated that Crimestoppers offers rewards to tipsters, counsel then asked him if “anyone applied for any money as a result of giving you a tip?” The court sustained the State’s objection, noting that it had already ruled that this information could not be divulged.

Defendant Williams now argues that the trial court erred by denying his motion because he could have used this information to impeach the credibility of whichever witness purportedly received a reward from Crimestoppers. In support, he cites La. C.E. art. 514, which provides for the confidentiality of the identity of informants. Subpart C(l) provides: “No privilege [of confidentiality] shall be recognized if: (1) The informer appears as a witness for the government and testifies with respect to matters previously disclosed in confidence.” The appellant argues that because the purported Crimestoppers tipster testified at trial, information concerning any financial reward he may have received is no longer privileged.

However, La. R.S. 15:477.1 provides that communications made to “crime stoppers” organizations is privileged. The statute provides in pertinent part:

B. No person shall be required to disclose, by way of testimony or otherwise, a privileged communication between a person who submits a report of alleged criminal activity to a crime stoppers organization and the person who accepts the report on behalf of a crime stoppers organization or to produce, under subpoena, any records, documentary evidence, opinions, or decisions relating to such privileged communication:
lm(l) In connection with any criminal case or proceeding.
(2) By way of any discovery procedure.
C. Any person arrested or charged with a criminal offense may petition the court for an in camera inspection of the records of a privileged communication concerning such person made to a crime stoppers organization. The petition shall allege facts showing that such records would provide evidence favorable to the defendant and relevant to the issue of guilt or punishment. If the court determines that the person is entitled to all or any part of such records, it may order production and disclosure, as it deems appropriate.

Unlike La. C.E. art. 514, which provides for the general disclosure of an informant’s identity under limited circumstances, La. R.S. 15:477.1 specifically addresses the limited disclosure of information concerning confidential tips to “crime stoppers” organizations. In State v. Divers, 38,524, pp. 26-27 (La.App. 2 Cir. 11/23/04), 889 So.2d 335, 354 the court recognized this difference:

Generally the identity of an informant is privileged and may be withheld. La. C.E. art. 514(A). The party seeking to overcome the privilege must clearly demonstrate that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence. La. C.E. art. 514(C)(3). To gain disclosure of the identity of an informer, the defendant bears the burden of demonstrating exceptional circumstances pertaining to his defense, and the trial court is accorded great discretion in making such a determination. State v. James, 396 So.2d 1281 (La.1981).
La. R.S. 15:477.1 provides that statements reporting alleged criminal activity to a “crime stoppers organization” are privileged communications not subject to disclosure. However, a criminal defendant may petition the lncourt for an in camera inspection of the records of a privileged communication to determine whether “such records would provide evidence favorable to the defendant and relevant to the issue of guilt or punishment.” La. R.S. 15:477.1(C). This test is a broader exception than the one created in La. C.E. art. 514. See Comment (c), La. C.E. art. 514. If the court determines entitlement to all or any part of such records, it may order production and disclosure as it deems appropriate. La. R.S. 15:477.1(C).
The confidentiality requirement of the crime stopper’s privilege ensures anonymity for the tipster. Certainly, were tipsters to be revealed or readily made available to the defense, such informants would be discouraged from calling in information.

In Divers, the defense sought the disclosure of the identity of a tipster to Crimes-toppers who provided information that someone other than the defendant committed the crime. Defense counsel moved for the disclosure of this person’s identity, but the court denied the motion after conducting an in camera inspection of Crimestop-pers’ records. On review, the court upheld the trial court’s ruling, noting that the tipster was not present at the crime and thus could not have presented any reliable information. The court further noted that any possible error was harmless because the codefendant confessed that he and the defendant committed the crime.

In State v. Cager, 97-1877 (La.App. 4 Cir. 3/24/99), 732 So.2d 97, the defendant sought a subpoena duces tecum to Crimes-toppers to discover if any payments were made to a State witness and if so, how much money she had received. The defendant insisted that it needed this information to impeach her. The witness apparently admitted later at trial that she had received $500.00, but she testified that she did not expect to receive any further reward. The trial court quashed the subpoena duces tecum, and on | ^review, this court affirmed. This court noted that La. R.S. 15:477.1 prohibits the disclosure of privileged information between a person who reports a crime and the person to whom the crime is reported, and it found that information concerning financial rewards fell within this privilege. This court based its decision on State v. Gibson, 505 So.2d 237 (La.App. 3rd Cir.1987), where the defense sought a subpoena duces te-cum to Crimestoppers to see if any payments were made for tips given in connection with the case and if so, how much was given and when it was given. The trial court quashed the subpoena duces tecum, and the Third Circuit court affirmed, stating:

LSA-R.S. 15:477.1(B) is very broad; it covers any records, documentary evidence, opinions or decisions in any criminal case or proceeding, by way of any discovery procedure. Inasmuch as the information subpoenaed is part of the record of crime stoppers, it is privileged. The trial judge’s broad reading of this “privilege” is supported by the statutory language. (Emphasis in original)

State v. Gibson, 505 So.2d at 243.

Here, the appellant’s motion for disclosure did not ask the court to review the Crimestoppers records in camera for this impeachment information, which is the only relief permitted by La. R.S. 15:477.1. Instead, the appellant asked for full disclosure of this information, which is not discoverable. Thus, as per Cager the trial court did not err by denying this motion.

The appellant cites several cases where courts have held that it was reversible error for the trial court to curtail cross-examination concerning a witness’ possible bias due to financial or other advantages in exchange for |1sthe witness’ testimony. However, these cases are not applicable because none of them involves the disclosure of confidential information from Cri-mestopper records.

Therefore, we find that the trial court did not err by denying Defendant Williams’ request for the production of information concerning any payments made by Crimestoppers for tips given in connection with this case.

INSUFFICIENCY OF EVIDENCE

In his second argument, Defendant Williams contends that the evidence was insufficient to support his conviction for second-degree murder. He argues that the evidence merely showed that the shooting was the result of his anger at the victim, and as such the evidence at best shows that he was guilty of only manslaughter.

In State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 Só.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

See also State v. Sykes, 2004-1199, 2004-0947 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

The appellant was charged with and convicted of second degree murder, which is defined in pertinent part as “the killing of a human being: 1 T4(l) When the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1. Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follbw his act or his failure to act.” La. R.S. 14:10(1). Specific intent need not be proven as 'fact, but may be inferred from the circumstances and actions of the defendant State v. 'Hebert, 2000-1052, p. 12' (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050. Specific intent can be formed in an instant. State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382.

Defendant Williams does not deny that he shot Mr. Mitchell, bút he argues that the shooting was, at most manslaughter. La. R.S. 14:31 defines manslaughter in part as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately'caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce • a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or ■that an average person’s blood would have cooled, at the time the offense was committed.

This court in State v. Collor, 99-0175, p. 11 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, 103 noted:

Thus, in reviewing, defendant’s claim that the evidence supports a manslaughter verdict, this Court must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigating factors were not estaba lished by a preponderance of the evidence. State v. Sanders, 93-0001, pp. 18-19 ■ (La.11/30/94), 648 So.2d 1272, 1287, cert, denied 517 U.S. 1246, 116 S.Ct. 2504,135 L.Ed.2d 194 (1996).

ti5In Collor, the victim told the defendant earlier on the day of the shooting not to return to the area. The defendant returned later to pick up his girlfriend, and at that point he was armed. The defendant admitted that the victim did not speak to him prior to the shooting, but rather the defendant merely opened fire upon perceiving that the victim gave him a “funny look.” On appeal, the defendant argued that the evidence did not support his second-degree murder conviction because the shooting occurred in the heat of blood and in self-defense. This court rejected both of these arguments, finding that the jury could have reasonably found that the defendant’s blood had had time to cool between the earlier threat and the defendant’s return and subsequent shooting of the victim. This court also found that the evidence negated any claim of self-defense, and it affirmed the defendant’s second-degree murder conviction.

In the present case, Defendant Williams argues that the evidence indicates that the shooting was a manslaughter in that it was the end result of an argument between himself and Mr. Mitchell, with Mr. Mitchell making it clear that he wished to “get at” him. However, a review of the testimony of Mr. Cardoza, Mr. Byrd, and Mr. Bannister shows that Defendant Williams and Mr. Mitchell were not engaged in any sort of heated argument at the time of the shooting. Mr. Bannister testified that Mr. Mitchell and Defendant Williams were “clowning around” at work on the day of the murder, and he saw no ill will between them at that time. Mr. Bannister stated that Mr. Mitchell was talking on his cell phone when Defendant Williams stopped the car in the middle of the street and asked Mr. Mitchell if he had something on his mind and if Mr. Mitchell wanted to “get at” him. Mr. Bannister testified that Mr. Mitchell did not respond, and Defendant Williams then pulled a gun. Mr. Bannister jumped out of the car, and he hidieard shooting as he walked away from the car. Mr. Byrd testified that there was some tension between the two men on the ride back to the Labor Ready office, and Defendant Williams stopped the car in the street and asked Mr. Mitchell if he still wanted to get at him. Mr. Mitchell replied yes and hung up his cell phone, and Defendant Williams got out of the car and started shooting. Mr. Cardoza testified that during the day Defendant Williams and Mr. Mitchell had argued, but nonetheless Mr. Mitchell accepted a ride back to the Labor Ready office with Defendant Williams. Mr. Cardoza testified that on the way Mr. Mitchell asked Defendant Williams about “Black and Milds,” and Defendant Williams replied that he had just smoked one and that he only smoked one a day. According to Mr. Cardoza, Defendant Williams then asked Mr. Mitchell if he still wanted to get at him, and Mr. Mitchell replied affirmatively. Defendant Williams stopped the car, got out, and asked the same question a second and then a third time, shooting Mr. Mitchell after the third question.

Although one witness testified that there was some sort of argument between Defendant Williams and Mr. Mitchell earlier that day and another witness spoke of tension in the car, all three witnesses testified that Mr. Mitchell accepted a ride with Defendant Williams that afternoon. Two witnesses placed Mr. Mitchell on the cell phone at the time Defendant Williams challenged him prior to the shooting. All three witnesses testified that Defendant Williams initiated the incident in the car by challenging Mr. Mitchell. Thus, even if Defendant Williams and Mr. Mitchell had argued earlier in the day, the jury could have easily believed that the circumstances would have allowed Defendant Williams’ blood to cool prior to entering the car with Mr. Mitchell and the others and issuing Mr. Mitchell the challenge. Contrary to the Defendant Williams’ argument, the jury could have thus 117found that mitigating circumstances, which would have reduced the killing to manslaughter, were not shown by a preponderance of the evidence and could have found him guilty as charged of second-degree murder.

DECREE

For the foregoing reasons, we affirm Defendant Williams’ conviction and sentence.

AFFIRMED.

      . Writ den. 2004-3186 (La.4/8/05), 899 So.2d 2, cert. den. Divers v. Louisiana, - U.S. -, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005).

      . Apparently, the defense learned the witness' identity through an intern’s mistake, but defense counsel felt he could not interview the witness in light of the court's ruling on his motion for disclosure.

      . The court further noted that any error would have been harmless due to testimony by a sheriff that a witness received $1000.00.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alvin HANDY.
    No. 2005-KA-0811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2006.

      Eddie J. Jordan, Jr., District Attorney, Yolanda J. King,’ Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Alvin Handy/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge EDWIN LOMBARD).
   CHARLES R. JONES, Judge.

| ¶Alvin Handy appeals his conviction and sentence for being a convicted felon in possession of a firearm. We affirm.

The State of Louisiana charged Alvin Handy by bill of information with one count of violating La. R.S. 14:95.1, possession of a firearm by a convicted felon. Handy appeared before the district court for arraignment and pled not guilty to all charges. The district court heard and denied his motion to suppress the evidence:

On the day of trial, the State amended the charge to reduce it to La. R.S. 14:27:95.1, attempted possession of a firearm by a convicted felon. Handy elected to plead guilty to the reduced charge, and the district court accepted his plea pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), reserving to Handy the right to appeal the court’s denial of his motion to suppress the evidence. Handy waived delays for sentencing, and the district court sentenced him to credit for time served, which in Handy’s case amounted to seven months in jail. Further, Handy filed a motion for appeal, and the district court appointed the Louisiana Appellate Project to act as Handy’s appeal counsel.

|2The State presented the testimony of one witness at the hearing on Handy’s motion to suppress the evidence. 'Specifically, Detective Nicole McCaskill, a New Orleans Police Officer assigned to the Second District Investigations Unit, testified that on June 11, 2004 at 2:30 p.m. she was patrolling the Second District’s Zone “Q” in the 3500 block of Octavia Street. Officer McCaskill further testified that while in the 3500 block of Octavia Street she observed Handy standing in front of a yard, bending over and looking at a lawn mower. The officer also noticed a bicycle next to Handy to which a dolly, or hand truck, had been tied. Officer' McCaskill testified that she decided to stop and speak with Handy in light of the fact that the area surrounding the scene had been experiencing a problem with burglaries of sheds and theft of lawn equipment.

Officer McCaskill testified that she got out of her vehicle and asked Handy what his intentions were regarding the lawn mower. Officer McCaskill explained that the lawn behind Handy was freshly cut so she thought he might be cutting the grass. Officer McCaskill testified that Handy responded by saying that he thought the lawn mower had been left on the curb for trash. Officer McCaskill then asked Handy for his identification. Handy was unable to produce any identification to Officer McCaskill. Officer McCaskill then asked Handy why he was on the scene and to whom did the lawn mower belong. According to Officer McCaskill, Handy again responded by stating that he did not know who the owned the lawn mower and that he thought the lawn mower was trash. According to Officer' McCaskill there was no trash on the curb for pickup in front of the house at the scene or in front of any of the other neighboring houses. Officer McCaskill further testified:

|,.¡He was acting kind of nervous, moving around, so for officer’s safety, I patted him down. He had nothing in his pockets, that I felt; but I realized that he had a backpack on his back that appeared to be empty, but when I patted it down, I immediately recognized a handgun. It felt like a handgun in the backpack. I removed the backpack off his back and immediately put him in handcuffs and asked for another unit to come out.

The following colloquy regarding the pat down occurred during the defense counsel’s cross-examination of Officer McCas-kill:

A. Well, at every stop, any stop that I conduct, I fear for my safety.
Q. I know, but objectively in this situation, he was not an overt threat to you in any way, as [sic] he?
A. No.

Officer McCaskill testified that after the other police unit arrived she and the other officer opened the backpack and found a small handgun. Officer MeCaskill then placed Handy in the back of one of the police units. Officer MeCaskill next spoke with the individual whose yard Handy was in at the time of the stop. According to Officer MeCaskill, the individual stated that the lawnmower found with Handy did not belong to her. Officer MeCaskill also testified that the individual claimed to have been working in her yard approximately thirty minutes beforehand but that the lawnmower found with Handy had not been there at the time. To make sure that the lawnmower found with Handy did not belong to her, the individual went into her own backyard and checked to see if her lawnmower was still there. Officer MeCaskill further testified that this individual stated that her trash pickup was on Thursday morning. June 11, 2004, the day of the incident, was a Friday. Officer MeCaskill also knocked on other doors in the neighborhood as part of her investigation, but no one responded to her knocks.

| ¿Officer MeCaskill had the other police unit on the scene with her run a computer check on Handy. The computer check revealed that Handy was a convicted felon. The record reflects that Handy was convicted in 1998 for simple burglary. After Officer MeCaskill learned of Handy’s prior felony conviction she transported him to the Second District station and requested that an agent from the Federal Bureau of Alcohol, Tobacco and Firearms interview Handy.

Handy asks this Court to review the record for errors patent. A review of the record reveals no errors patent.

Handy contends that his conviction and sentence should be reversed because the district court erred by declining to suppress evidence from the police officer’s investigatory stop of Handy. Significantly, Handy does not contest Officer MeCas-kill’s pat down search of his body or backpack. Rather, he contends that Officer MeCaskill did not elucidate sufficient artic-ulable knowledge of particular facts and circumstances surrounding the matter at hand to justify an investigatory stop. While not stated plainly, Handy’s brief assumes that Officer MeCaskill conducted an investigatory stop of Handy when she stopped and got out of her police unit, approached Handy, and asked him what he was doing with the lawnmower.

For example, page five of Handy’s brief states plainly that Officer McCaskfll’s “stop” was premised on nothing more than: (1) her knowledge that the area surrounding the scene had been experiencing burglaries of lawn equipment and shed items; and, (2) her observation of Handy bending down over a lawnmower on the curb while standing next to a bicycle with an attached dolly/hand truck. Handy thus asserts that Officer McCaskill’s “generalized suspicion” about his actions did not constitute a reasonable suspicion sufficient to justify her investigatory stop. He argues that Officer IsMcCaskill conducted a “stop” when she approached him and initiated conversation. He urges this Court to reverse the district court’s denial of his motion to suppress as well as his conviction and sentence.

The State responds to Handy’s arguments by first interposing a jurisdictional objection to Handy’s appeal. The State asserts that Handy failed to object to the district court’s denial of his motion to suppress at the time of the court’s ruling. In direct response to Handy’s appeal, the State argues that the district court properly denied the motion to suppress because exigent circumstances existed that justified Officer McCaskill’s investigatory stop and pat down search of Handy.

We will first address the State’s procedural objection, and will then address Handy’s assignment of error.

The record indicates that the district court denied Handy’s motion to suppress. On the date of trial, the district ■ court allowed Handy to enter a conditional plea of guilty and retain the right to contest the court’s ruling on the motion to suppress the evidence.

The State fails to provide this Court with any law in support of its contention that Handy cannot pursue the present appeal because his trial counsel failed to make a contemporaneous objection to the court’s denial of his motion to suppress. The State’s support of its argument applies to district court rulings made at trial instead of at pre-trial motion practice. Additionally, there is no caselaw to support the State’s jurisdictional objection. Moreover, the record indicates that the State failed to make a contemporaneous objection to Handy’s Crosby plea. Accordingly, this argument by the State is without merit.

As previously noted, Handy argues that Officer McCaskill conducted an investigatory stop when she approached him and initiated conversation. | fiHe essentially argues that the motion to suppress should have been granted because Officer McCas-kill’s initiation of conversation was not based on reasonable suspicion that Handy had committed, was committing, or was about to commit a crime.

La.C.Cr.P. art. 215.1 provides for the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, an officer’s right to make an investigatory stop of a particular individual must be based upon reasonable cause to believe that the suspect had been, is, or is about to be engaged in criminal conduct. La.C.Cr.P. art. 215.1.

For purposes of an investigatory stop and detention for interrogation, “reasonable cause” is something less than probable cause and must be determined under the facfs of- each case considering whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Albert, 553 So.2d 967 (LaApp. 4 Cir.1989). The totality of circumstances must be considered in determining whether or not reasonable cause exists. Further, to assess the reasonableness of an officer’s conduct, it is necessary to balance the term of invasion against the need to search or seize. ■ State v. Scott, 561 So.2d 170 (LaApp. 1st Cir.1990), writ denied, 566 So.2d 394 (La.1990). ‘ Although flight, furtive gestures, nervousness, or startled behavior at the sight of a police officer, is, by itself, insufficient to justify an investigatory stop, this type of highly suspicious conduct may be a factor leading to a finding of reasonable cause. State v. Carver, 531 So.2d 551 (LaApp. 5 Cir.1988).

|7In this case, Officer McCaskill’s uncon-tradicted testimony was that she stopped and exited her vehicle and asked Handy what he was doing with the lawnmower. Officer McCaskill did not order Handy to submit to her authority. She did not order him to stop what he was doing. Rather, it was Officer McCaskill who stopped and spoke with Handy. There is nothing in the record to suggest that Handy was prevented from walking away or disregarding Officer McCaskill’s questions.

As this Court stated in State v. Bentley, 97-1552, p. 8 (LaApp. 4 Cir. 10/21/98), 728 Soi2d 405, 410:

[I]t is well-settled, that police officers do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen -in public. State v. Britton, 93-1990 (La.1/27/94), 633 So.2d 1208, 1209. A person’s liberty and privacy are not violated when a police officer attempts to talk with him as long as that individual is free to disregard the questioning and walk away. State v. Bums, 95-1500, p. 7 (La.App. 4 Cir. 6/5/96), 675 So.2d 1233, 1237. Only when an individual is actually stopped without reasonable cause, or if such a stop is imminent, are his rights infringed. Id. While the Fourth Amendment protects individuals from actual stops, La. Const, art. 1, § 5 also protects individuals from “imminent actual stops.” State v. Tucker, 626 So.2d 707 (La.1993), opinion reinstated on rehearing by 626 So.2d 720 (La.1993).

Prior to the time that she conducted a pat down search of Handy, Officer McCaskill had not actually stopped Handy, nor had she done anything to indicate that a stop was imminent. She had only asked him whether the lawnmower at the scene belonged to him. Police officers enjoy the same liberty possessed by every citizen to address questions to other persons. State v. Press, 99-2222 (La.App. 4 Cir. 4/19/00), 767 So.2d 56, 59. In Press, this Court cited with approval a Second Circuit decision wherein the court wrote:

|sThe mere fact that police approach and address a person does not compel that individual to respond to the inquiries or comply with the requests. Legally, nothing prevents him from choosing not to answer and leaving the scene. State v. Neyrey, 383 So.2d 1222 (La.1979); State v. Desomieaux, 569 So.2d 283 (La. App. 2d Cir.1990). Despite the fact that unsolicited assistance, unasked-for conversation, and unrequested advice are not always welcome, the Constitution provides no protection against such everyday annoyances whether caused by a policeman or an ordinary citizen. State v. Neyrey, supra. Mere police questioning does not constitute a seizure. Florida v. Bostick, [501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)] supra.; I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

State v. Press, 767 So.2d at 59, citing State v. Haygood, 26,102 (La.App. 2 Cir. 8/17/94), 641 So.2d 1074,1077.

Application of the law to the facts herein indicates that Officer McCaskill’s initiation of conversation with Handy was not an investigatory stop. Thus, Handy’s contention that this “stop” was improper is without merit.

The record supports the district court’s finding that Officer McCaskill’s eventual detention and pat down search of Handy was proper. Specifically, Officer MeCaskill’s pat down search of Handy and the back pack he was wearing was based on: 1) her knowledge of shed burglaries in the area; 2) Handy’s presence next to the lawnmower with a bicycle and attached dolly; 3) Handy’s inability to identify the owner of the lawnmower; 3) Handy’s explanation that the lawnmower was left for trash when there was no other trash around; 4) Handy’s inability to provide identification or readily provide a name; and, 5) Handy’s nervous and fidgety behavior.

This Court has held that flight, nervousness or a startled look at the sight of a police officer may be one of the factors leading to a finding of reasonable cause to stop under statute governing temporary questioning of |3persons in public places. State v. Vingle, 2001-0840 (La.App. 4 Cir. 11/21/01), 802 So.2d 887. In the present matter, Officer McCaskill testified that Handy “acted very nervous and fidgety” when asked about his purposes.

Further, an officer’s knowledge of crime patterns in a given area can be one factor forming a basis to conduct an investigatory stop. For example, see State v. Frosch, 2001-1033 (La.3/22/02), 816 So.2d 269, wherein the Supreme Court held that the police had reasonable suspicion for investigatory stop of a Handy, where police observed Handy looking into a truck and jiggling the' door handle, at 11:50 p.m., in a neighborhood in which many cars had been stolen, and Handy attempted to flee upon noticing police. Officer McCaskill testified in the present matter that the area surrounding the scene of the crime had been experiencing lawn shed burglaries and lawn equipment thefts. Moreover, Officer McCaskill observed Handy bending over a lawnmower in the presence of a bicycle with a dolly.

Further, evasive answers to reasonable police questions can also be a factor forming the basis to conduct an investigatory stop. In State v. Richardson, 2000-0416 (La.App. 4 Cir. 2/7/01), 780 So.2d 1103, this Court affirmed an investigatory stop wherein the investigating officers testified that they observed Richardson standing next to a pile of clothes in an empty parking lot early in the morning. The officers further testified that when they approached Richardson he told them the clothes were not his and that he was “just taking a leak.” Richardson, 780 So.2d at 1108. The officers further testified that the clothes had security tags and store labels on them. In affirming the denial of the motion to suppress this Court noted that one of the factors in support of the police officer’s investigatory stop was Richardson’s answers to police questions. The investigating officer was 11ftjustified in stopping Richardson because his answers to routine questions were suspect in light of the surrounding circumstances.

The facts in the record support the district court’s denial of Handy’s motion to suppress. Furthermore, a trial judge’s decision to deny a motion to suppress will be afforded great weight and will not be set aside unless to do so is clearly mandated by a preponderance of the evidence. State v. Lee, 545 So.2d 1163 (La.App. 4 Cir.1989).

DECREE

Accordingly, this Court affirms the conviction and sentence of Alvin Handy.

AFFIRMED.


author: MAX N. TOBIAS, JR, Judge.

text:
    Debra C. BROWN v. UNKNOWN DRIVER, Viola Browder and State Farm Mutual Automobile Insurance Company.
    No. 2005-CA-0421.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2006.

      Allen H. Borne, Jr., Ryan P. Reece, New Orleans, Counsel for Plaintiff/Appel-lee.

      Mark E. Hanna, McCranie Sistrunk An-zelmo Hardy Maxwell & McDaniel, Me-tairie, Counsel for Defendants/Appellants.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., and Judge LEON A. CANNIZZARO, Jr.)
   MAX N. TOBIAS, JR, Judge.

|TThe defendants, Diedre Johnson and State Farm Mutual Automobile Insurance Company (“State Farm”), appeal from a judgment entered against them in the amount of $8,170.45. After reviewing the record and applicable law, we reverse the judgment.

This case stems from an automobile accident that occurred at approximately 8:45 p.m. on 16 January 2001 in New Orleans, Louisiana. The plaintiff, Debra Brown (“Brown”), was operating a 2001 Honda CRV on Washington Avenue when a vehicle operated by an unknown driver allegedly struck the passenger side of her vehicle as she slowed to turn into a gas station. After checking on her nine-year old son who was in the back seat, Brown got out of her vehicle and approached the driver of the other car. The driver, whose vehicle was “stuck” to the plaintiffs vehicle, allegedly spoke to her and laughed about the accident. The driver then sped off, but not before the plaintiff and an eyewitness, Keyanka Bell, Leach independently wrote down the vehicle’s license plate number, ETT366. The plaintiff also collected parts of the other vehicle that allegedly broke off as a result of the impact.

Brown contacted a friend who worked at the St. Charles Parish Sheriffs Office and was told the license plate number was for a 1996 Toyota Tercel registered to Viola Browder (“Browder”). Later that night, the plaintiff went to a New Orleans Police Department (“NOPD”) station to submit a statement. In that statement, she described the color of the vehicle that struck her as black or navy blue. She also gave them the license plate number and the name of the vehicle’s owner. However, Brown did not tell the police that she had collected debris at the scene. '

Browder, the registered owner of the vehicle that allegedly struck the plaintiff, had died in November 1998. After her death, the ownership of the vehicle passed to her daughter, Diedre Johnson (“Johnson”). However, title to the vehicle was not transferred to Johnson until after the date of the alleged accident. Brown brought suit against John Doe, as the alleged driver, Johnson, on a negligent en-trustment theory, and State Farm, as insurer of the vehicle allegedly involved in the accident.

After a bench trial, the trial court rendered a judgment in favor of Brown and against the defendants, Johnson, John Doe, and State Farm, in the amount of $8,170.45 for general and special damages. No reasons were given by the trial court for the judgment.

The defendants have assigned as error the following:

|sl. The trial court erred in rendering judgment against Johnson;
2. The trial court erred in rendering judgment against a John Doe defendant;
3. The trial court erred in rendering judgment against State Farm;
4. The trial court erred in finding that the vehicle owned by Johnson was involved in the accident made the subject of this lawsuit; and
5. The trial court erred in failing to find that the medical records submitted into evidence do not support the plaintiffs claim for damages. In the alternative, the bill of Dr. Terry O’Neill should be reduced.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless its finding of fact is “clearly wrong;” where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made by the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Id. at 844 n. 2.

Under either scenario, this court will summarize the evidence presented at trial. The first witness called by the plaintiff was Johnson, under cross-examination. She testified that the Toyota Tercel was her mother’s car purchased new in 1996. After her mother died, the car remained in her mother’s name until Johnson paid off the loan. There were three sets of keys to the vehicle: two were in the possession of Johnson; her sister, Debbie Browder, had the third set. However, Johnson testified that after her mother’s death, she was the sole driver of |4the vehicle. She also testified that her sister could not have driven the car, although she did not know who had access to the set of keys in her sister’s possession.

Johnson testified that on the night in question, she was home “perming” her hair and did not drive the car. It was parked on the side of her house. The vehicle was never missing or reported as stolen. She also testified that the license plate had never been taken from the car. In the time she has possessed the vehicle, it was never taken to a body shop for repairs.

Johnson testified that she received a letter from the NOPD asking her to bring in her vehicle. When she arrived at the police station, she and a police officer examined the car, which revealed no damage. After doing so, the officer dismissed the complaint.

Brown testified at trial that the vehicle that hit her was a small dark-colored car, either black or green. Although she obtained the names of several witnesses, she could not remember their names. However, one witness, Keyanka Bell, gave her an envelope with the license plate number of the hit and run vehicle; it was the same number the plaintiff herself had recorded. The plaintiff described the driver of the car as a very dark African-American male, 19-22 years old, who was small in size and had several gold teeth.

Under cross-examination, Brown admitted that she did not describe the car as green in the statement she gave to police on the night of the accident. In addition, she did not tell the police that she had collected debris at the scene and | Kcould not recall if she reported the names of the witnesses. She claimed to have kept the debris in the back of her vehicle until she gave it to her attorney.

Some time later, the plaintiff contacted the police and was told that the car for which she had provided the license plate number had been brought in and was not damaged.

The plaintiff introduced into evidence the deposition testimony of Ms. Bell, who stated that she had seen the accident and written down the license plate number that she then gave to the plaintiff. Ms. Bell also testified that a large hubcap came loose from the hit and run vehicle, which rolled into a nearby gas station. Although she had written down the license plate number, she could not identify that number at her deposition and was unable to identify the make, model, or color of the vehicle involved in the accident.

Finally, the plaintiff presented the testimony of Leon Muller, a body and fender technician, who worked at a Toyota dealership for four years. He reviewed the parts given to him by the plaintiff’s attorney and identified them as coming from a 1995, 1996, or 1997 Toyota Tercel. He could not, however, state that the parts had come from Johnson’s vehicle. He also testified that the Toyota Tercel did not have a solid hubcap, but instead used a wheel rim with a small black center cap.

Following the presentation of the plaintiffs case, the defendants moved for a dismissal of Johnson. Although the trial court denied the motion, the court stated:

I’m going to deny the motions for this reason. While the Court believes that there’s been no evidence shown that Ms. Johnson drove the vehicle or that she gave anybody permission. The Court agrees with you completely on that.
But Ms. Johnson’s testimony was that her sister also had a set of keys. She testified also that sometimes | fiher sister drove the car. And then she said that maybe her sister could have driven the car on that day.
And then she recanted and said no her sister did not drive the car. And then she did not know what the arrangement was between her mother and her sister concerning driving the car.
Her sister did have a set of keys to the car. Based on that the Court cannot rule out that or a possibility of someone else having driven the car whether or not it was with Ms. Johnson’s permission.
But the Court can’t rule out the fact that somebody else may have driven the car. Although the Court does agree that there is absolutely no evidence against Ms. Johnson that she drove the car or that she gave anybody permission.

The first witness presented by the defendants was Michelle Guin, a State Farm claim representative, who investigated the plaintiffs claim in January 2001. She was shown a photograph of the plaintiffs car taken on the day she brought it in to be adjusted. The only damage to the vehicle was a white smudge right above the handle on the rear passenger door; Ms. Guin did not see any black marks on the rear passenger door.

When the plaintiff brought in her vehicle, she did not inform Ms. Guin that she had any parts that may have come from the hit and run vehicle. In fact, the plaintiff did not inform her of that fact in any of their conversations.

Ms. Guin received notification from an attorney, Rusty Solomon, that he was representing the plaintiff. However, she later received a letter from Mr. Solomon’s office indicating that he no longer represented Brown because of a lack of proof that the other vehicle identified was involved in the accident.

The next defense witness was Maurice J. Baudy, Sr., another State Farm claim representative, who investigated the accident at issue in this case. He opened the file on 2 February 2001, after Johnson contacted State Farm that a claim was being made against her. He asked Johnson to bring in her vehicle to be Ivphotographed and to make a statement. Johnson came to his office about 20 days after the accident and denied being involved in the accident. Mr. Baudy inspected the vehicle and found no physical damage. He gave this information to Mr. Solomon, who was then representing the plaintiff. Mr. Baudy also obtained a copy of the police report stating that the Johnson vehicle had been cleared by identification as having no damage. After conducting his investigation, Mr. Baudy denied the claim.

Debbie Browder, Ms. Johnson’s sister, also testified for the defense. She admitted to having a set of keys to the Toyota Tercel, but denied ever driving the car after her mother died. She stated that, on 16 January 2001, the date of the accident, she did not drive the car, did not loan the car to anyone, and had her set of keys in her possession.

Under cross-examination, Ms. Browder admitted having a boyfriend at the time of the accident, but said that he never learned to drive a car and did not have a driver’s license. She was not asked to physically describe her boyfriend. She also stated that she could not say for certain that the vehicle was in her sister’s possession on the date of the accident. She herself had never reported the car stolen and was not aware of unauthorized use of the vehicle at any time.

Finally, Johnson testified. She again stated that she did not loan the car to anyone on the day before or day of the accident. She also testified that at the time of the accident, she was home and the car was parked on the side of the house. She admitted to having a boyfriend at the time, who was then about 30 years old. He is a light-skinned African-American who worked from 3 p.m. until 11 p.m. at the New Orleans Hilton Riverside as a security guard. He never drove her car.

IsJohnson testified that she did not have the car repaired after the date of the alleged accident. She stated that she was pregnant at the time and did not have money to spend on car repairs or anything else of that nature.

The claim against Johnson is that of negligent entrustment. In Louisiana, owners of motor vehicles are ordinarily not personally liable for damages, which occur while another is operating the vehicle. Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, or when the owner is himself or herself negligent in entrusting the vehicle to an incompetent driver. Ruthardt v. Tennant, 252 La. 1041, 1054-55, 215 So.2d 805, 810 (La.1968); Mitchell v. Wall, 482 So.2d 817, 819-20 (La.App. 4 Cir.1986); Aupied v. Joudeh, 96-202, p. 3 (La.App. 5 Cir. 4/9/97), 694 So.2d 1012, 1014, writ denied, 97-1583 (La.10/10/97), 703 So.2d 605.

Under the theory of negligent en-trustment, the lender of a vehicle is not responsible for the negligence of the borrower unless he knew or should have known that the borrower was physically or mentally incompetent to drive; if the lender knew or should have known of the borrower’s incompetence, then he is responsible for the harm resulting from the incompetent operation of the vehicle. Oaks v. Dupuy, 32,070, p. 4 (La.App. 2 Cir. 8/18/99), 740 So.2d 263, 266.

Brown argues that the Supreme Court case of Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398, compels a finding in her favor. In that case, a New Orleans Aviation Board (“NOAB”) vehicle struck the plaintiffs vehicle. The plaintiff was able to later identify the driver of the NOAB vehicle, a NOAB employed. The Court stated:

| flMoreover, Mr. Manzella identified Ramon' Reece, an NOAB employee as the driver of the truck, an identification which was apparently accepted by the trial judge. Mr. Reece testified that at times he was allowed to drive the truck off the airport grounds. The identification of Mr. Reece as the driver is supported by the fact that it was evident that the driver was well acquainted with other maintenance division Board employees, since he was permitted to drive off the premises through a gate manned by a security guard. Under these circumstances, we find that the driver of the NOAB truck left the airport premises with the implied initial permission of the Board.

Id. at 7, 664 So.2d at 402.

Manzella is easily distinguished from the instant case, where the alleged driver of the Johnson vehicle was never identified. In addition, the NOAB vehicle had been damaged and thus one could reasonably conclude that it had been involved in an accident. We cannot arrive at the conclusion that express or implied permission was given by Johnson based on the Court’s reasoning in Manzella. Further, no evidence exists that the Johnson vehicle was damaged on the night of the alleged accident.

The plaintiff also relies on Robinson v. Doe, 02-0258 (La.App. 5 Cir. 9/30/02), 829 So.2d 577, where the owner of the vehicle that struck the plaintiff had given an identified woman permission to drive the vehicle. While an unknown man was driving the vehicle at the time of the accident, the trial court concluded that the identified woman gave permission to the man who was driving the vehicle at the time of the accident.- Id. at 3, 829 So.2d at 578-79. Again, as .in Manzella, the vehicle in question was found damaged after the accident.

We find our previous decision of 'Washington v. State Farm Mutual Automobile Insurance Co., 97-1931 (La.App. 4 Cir. 3/25/98), 709 So.2d 360, is analogous to the matter sub judice. In Washington, the plaintiff was unable to|inidentify the driver of the vehicle in which he was riding at the time it was involved in the accident and did not present the testimony of the vehicle’s owner to prove express or implied permission to operate the vehicle. In the instant case, the plaintiff has failed' to prové that Johnson gave express or implied permission to operate her vehicle on the night of the accident.

As recognized by the trial court, no evidence exists in the record that Johnson or her sister gave anyone permission to drive the vehicle on the night of the accident. At trial, Johnson testified that she did not loan the vehicle to anyone on the date of the accident. In addition, Ms. Browder testified that' she had not driven the vehicle since her mother died in 1998, and denied loaning the vehicle to anyone on the date of the accident.

The only evidence that supports the plaintiffs claim against Johnson is the re-cordation of the license plate number by both the plaintiff and Ms. Bell. However, the original documents on which the license plate number was recorded were not introduced into evidence. Further, we place no probative value in the debris Brown allegedly collected on the night of the accident. Surely she would have given the debris to the police, her first lawyer who eventually refused the case, or even to State Farm to support her claim. The fact that the debris came from a Toyota Tercel manufactured between 1995 and 1997 does not prove that the debris came from Johnson’s vehicle. Finally, no evidence was introduced proving that the Johnson vehicle was repaired between the time of the accident and the police officer’s inspection of the car. The plaintiff failed to carry her burden of proof in all respects.

jnSince we find that Johnson was not negligent, State Farm, her insurer, cannot be cast in judgment. A liability policy is written for the benefit of third parties who suffer injury or damage because of the action of the insured. Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192, 206 (La.App. 4 Cir.1973), unit denied, 290 So.2d 899 and 290 So.2d 901 (La.1974). The insurer’s liability is contingent upon proof of the negligence or tortious conduct of the insured. Musmeci v. American Automobile Insurance Co., 146 So.2d 496, 501 (La.App. 4 Cir.1962). The primary object of automobile liability insurance is to “indemnify the policy holder for an injury for which he might be liable because of the ownership, maintenance, or use of a motor vehicle .... ” 7 Blashfield, Automotive Law and Practice Section 291.1, 3rd Edition (1966); 12 Ap-pleman, Insurance Law and Practice Section 7001 (1981). Since we find that the policyholder, Ms. Johnson is not negligent, State Farm is not liable to pay whatever damages Ms. Brown may have incurred.

Finally, we also reverse the judgment against the John Doe defendant. A suit for damages is commenced by the filing of a petition. La. C.C.P. art. 891. Citation and service, of the petition upon a defendant, unless waived, is required in order to obtain a judgment against a defendant. La. C.C.P. art. 1201.. Pursuant to La. C.C.P. art.2002, a judgment is absolutely null for failure of a defendant to receive notice of the suit; where there is a failure to serve the defendant with citation and a certified copy of the petition, a judgment cannot be rendered against him or her. Advanta Bank Corp. v. First Mount Zion Baptist Church, 03-732, p. 4 (La.App. 5 Cir. 12/30/03), 865 So.2d 165,167. In the instant matter, the John Doe defendant was never identified, much less cited or served. Therefore, the | ^judgment against this defendant is an absolute nullity and must be reversed.

Because we find that the defendants are not liable to the plaintiff, we pretermit discussion of State Farm’s remaining assignments of error. In addition, we deny the plaintiffs request for attorney’s fees and costs associated with defending the present appeal.

REVERSED.

CANNIZZARO, J., concurs in the result.

      . The judgment was rendered on 7 September 2004. The office of the Clerk of Court for First City Court for the City of New Orleans, however, did not mail the judgment until 13 September 2004, as evidenced by the affidavit from the Honorable Ellen M. Hazeur, the Clerk of Court. In addition, the First City Court and its clerk's office were closed from noon on 14 September 2004 though, and including, 17 September 2004, due to Hurricane Ivan. On 20 September 2004, the defendants filed a timely petition for suspensive appeal and accompanying bond. In addition, the plaintiff filed a motion for new trial on the same day, which was denied by the trial court in January 2005. Due to the closures of the clerk’s office as the result of Hurricane Ivan, as well as the intervening weekend days, the notice of appeal filed on 20 September 2004 was timely and the denial of the motion for new trial cured any claim of prematurity. See La. C.C.P. art. 2123(C); Sullivan v. Franicevich, 04-0321 (La.App. 4 Cir. 3/9/05), 899 So.2d 602.

      . The paper on which Ms. Bell wrote down the license plate number was not admitted into evidence.


author: Chief Judge JOAN BERNARD ARMSTRONG.

text:
    Mark W. HANEY, Robert L. Haney, Jr., Ellis P. Carter, Mary Carter Stokes, Martin C. Carter, Jr., David A. Carter, Pamela Carter Cabiro, Marcelle Carter Leblanc and Ronald T. Carter v. Leonard A. DAVIS, Russ M. Herman, Delta Petroleum Company, Inc., Paul B. Maxwell, Jon Maxwell, Delta Rocky Mountain Petroleum, Inc. and Herman, Herman, Katz & Cotlar, L.L.P.
    No. 2004-CA-1716.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2006.

      Roy Raspanti, Metairie, LA, for Plaintiffs/Appellants.
    Thomas A. Gennusa, II, Joseph S. Pia-cun, Kelly E. Barbier, Gennusa Law Firm, New Orleans, LA, for Defendants/Appel-lees.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge ROLAND L. BELSOME.
   Chief Judge JOAN BERNARD ARMSTRONG.

| ^laintiffs-appellants, Mark W. Haney, Robert L. Haney, Jr., Ellis P. Carter, Mary Carter Stokes, Martin C. Carter, Jr., David A. Carter, Pamela Carter Cabiro, Marcelle Carter LeBlane and Ronald T. Carter, appeal a summary judgment dismissing plaintiffs’ petition for nullity of judgment and damages against certain defendants-appellees, Leonard A. Davis, Russ M. Herman, and Herman, Herman, Katz & Cotlar, LLP. We affirm.

The defendants-appellees answered the appeal asking for damages for frivolous appeal pursuant to La. C.C.P. art. 2164.

I. PLAINTIFFS’APPEAL

In order to prevail, as will be explained hereinafter in depth, the plaintiffs-appellants must show that: (1) their claim of nullity raises new issues or evidence that were not and could not have been raised in the earlier proceedings resulting in the judgment they now seek to annul; and (2) that they succeeded in raising a genuine issue of material fact in the trial court making it error for the trial court to dismiss their nullity action on motion for summary judgment.

This case originated in a 1983 purchase of stock in Delta Petroleum Company, Inc. (“Delta”) by certain of the defendants from the plaintiffs. The | {.plaintiffs initially sued the directors and officers of Delta as well as Delta, itself, alleging fraud and the breach of fiduciary duty in the undervaluing of the plaintiffs’ stock in Delta resulting in an inadequate price for the plaintiffs’ stock to the detriment of the plaintiffs and the enrichment of the defendants named in the original litigation.

In those initial proceedings the trial court granted the defendants’ motion for partial summary judgment. This Court affirmed, ruling: (1) that the defendants had no legal duty to disclose the financial projections of a Delta subsidiary, Delta Rocky Mountain Petroleum, Inc. (“DRMP”); and (2) that the plaintiffs offered no evidence that DRMP as a matter of fact performed in a manner anywhere close to the supposed projections. In fact, this Court noted that the only evidence before the trial court was the evidence offered by the defendants showing that DRMP sustained net losses for the years 1984, 1985, 1986 and 1987, contrary to what the projections had predicted. Moreover, this Court also noted that the plaintiffs made no showing that Delta’s profitability was in anyway dependent on that of its subsidiary, DRMP. Haney v. Delta Petroleum Co., Inc., 99-0170 (La.App. 4 Cir. 10/6/99), 748 So.2d 36 (hereinafter referred to as Delta I).

Subsequently, this Court affirmed the summary judgment dismissal of plaintiffs’ entire suit. Haney v. Delta Petroleum Co., Inc., 01-0636 (La.App. 4 Cir. 3/6/02), 811 So.2d 1200 (hereinafter referred to as Delta II). In Delta II this Court found that the plaintiffs had come forward with no evidence of breach of fiduciary duty or bad faith.

On September 15, 2003 (which was after the dismissal of their entire suit in Delta II became final), the plaintiffs filed the petition for nullity of judgment and damages naming the defendants in this original litigation, Jon Maxwell, Paul B. ^Maxwell and Delta Rocky Mountain Petroleum, Inc. as well as naming as new defendants, Leonard A. Davis, Russ M. Herman, and Herman, Herman, Katz & Cotlar, LLP. The new defendants had served as counsel for the defendants in the original previously dismissed litigation. It is only these new defendants who brought the motion for summary judgment that resulted in'the judgment from which the plaintiffs now appeal. In a companion case before a different panel this Court recently reversed the granting of an exception of res judicata granted in favor of the original defendants. Haney v. Davis, 04-0856 (La. App. 4 Cir. 5/11/05), 904 So.2d 53. The panel in that case noted that its decision was based on a very .limited record. Therefore, we find that the decision in that case has no bearing on the instant case now before this panel.

The basis of the petition for nullity is that when the defendants denied that Jon Maxwell prepared a certain handwritten document (which the plaintiffs describe as financial projections for DRMP) annexed to a request for admissions in the original litigation, the denial was untrue, in bad faith and fraudulent. Accordingly, we categorize this as an action for nullity-under La.C.C.P. art. 2004 A:

A final judgment obtained by fraud or ill practices may be annulled.

Moreover, the plaintiffs’ allegations of fraud in connection with the defendants’ answer to the request for admissions, allegations which we stress find no support in the record, are immaterial to the earlier litigation, and, therefore, immaterial to this action in nullity. The disputed projections predict future profits for DRMP which the plaintiffs contend makes the stock, in its parent corporation, |4Pelta, more valuable. However this Court carefully considered and disposed of the issue of those projections in our opinion in Delta I:

At the time of the 1983 tender offer, two main approaches to the duty to disclose soft information, such as financial projections, existed. In the first approach, used in Panter \v. Marshall Field, 646 F.2d 271 (7th Cir.1981) ], supra, directors had no legal duty to disclose financial projections to shareholders under any circumstance. By this standard, the trial court’s dismissal of plaintiffs’ claim on this point was correct.
The other approach, used in Starkman [v. Marathon Oil], 772 F.2d 231 (6th Cir.1985) and Vaughn [v. Teledyne, Inc.], 628 F.2d 1214, (9th Cir.1980), supra, dictates that directors only have a legal duty to disclose financial projections if those projections are substantially certain to hold. It was this approach that the trial court addressed in writing: “Even if the Court adopted the approach set forth in Starkman, supra, the Court concludes that, in this case, the alleged financial projections were not substantially certain to hold and/or the estimates were not made with reasonable certainty. The undisputed evidence is that, in fact, DRMP sustained net losses in 1984, 1985, 1986, and 1987.” [Emphasis added.]

Delta I, 99-0170, p. 5, 748 So.2d at 39.

What this means is that this Court previously found in Delta I that under the applicable law the defendants either had no duty under any circumstances to disclose projections or that if they had such a duty it was only in those situations in which the projections were substantially certain to hold — and, as this Court noted, the predictions of profitability had already been proven false when the undisputed evidence showed that DRMP had losses from 1984-1987. Id. In other words, projections being merely predictions of the future, they must yield to what actually occurs in the future, which in this case is the unprofitability of DRMP in 1984, 1985, 1986 and 1987, regardless of what the projections for those years might have Ushown in 1983. Thus, this Court has already found that based on the unrefuted facts, the projections are irrelevant and immaterial.

The Louisiana Supreme Court has determined that fraud concerning a matter that is irrelevant or immaterial does not constitute grounds for nullity:

In Spence v. Spence, 158 La. 961,105 So. 28 (1925), this court, in interpreting Article 607 of the Code of Practice (the source of Article 2004), stated that “perjury is not a ground for vacating the judgment where the judgment does not rest upon the perjured testimony, as where it relates to an immaterial matter.” Spence 105 So. at 30. Although the Spence decision did not turn on the quoted language, a logical interpretation of Article 2004 dictates that a judgment will not be annulled on account of fraud or ill practice in the course of a legal proceeding if the fraud or ill practice pertained to a matter irrelevant to the basis of the decision and the judgment therefore was not obtained by fraud or ill practice. Ward v. Pennington, 523 So.2d 1286 (La.1988). [Emphasis added.]

Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La.10/16/01), 800 So.2d 762, 767; See also Stroscher v. Stroscher, 01-2769 (LaApp. 1 Cir. 2/14/03), 845 So.2d 518.

In Ward v. Pennington, 523 So.2d 1286 (La.1988), the Supreme Court explained that:

There must be a causal relationship between the fraud or ill practice and the obtaining of the judgment.
* * *
In the present case the truth or falsity of the handwritten annotation on the 1957 letter was immaterial to the legal basis for the judgment in the first suit.
* * *
The immaterial document and affidavit, whether false or not, clearly had no effect on the judgment obtained by the defendants in the first suit ...

| fiId., at pp. 1289-1290.

Obviously, where the basis of the plaintiffs’ argument, the disputed projections, has been determined to be irrelevant and immaterial, by definition it raises no genuine issue of material fact and cannot serve to defeat the summary judgment in favor of the defendants from which the plaintiffs bring the instant appeal.

The plaintiffs’ argument does not even raise a new issue. Everything that the plaintiffs raise in this action for nullity could have been raised in the original proceedings. It is not the purpose of an action of nullity to allow the party attacking a judgment to reargue old issues. If the plaintiffs felt that the defendants’ answer to the request for admissions was contrary to fact, the plaintiffs should have raised that issue in the original proceedings. Moreover, the plaintiffs make no showing of or argument attempting to show prejudice as they did not allege in these nullity proceedings that they intend to offer or attempt to discover any new evidence that would show or imply that Jon Maxwell might have been the author of the projections.

Discovery of evidence which could have been presented in the original proceedings usually cannot serve as the basis for an action for nullity. Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219, 1223 (La.1982); Calcasieu Parish School Bd. v. Parker, 02-339, p. 4 (La.App. 3 Cir. 10/2/02), 827 So.2d 543, 546. This is even truer where the evidence cannot be said to have been “discovered”, but is all “old” evidence produced during the course of discovery in the original proceedings, which is true of all of the evidence offered by the plaintiffs in the instant nullity action. It also stands to reason that arguments that could have been made in the original proceedings cannot serve as the basis for an action of nullity. 17This is so because, if the evidence or arguments could have been presented in the original proceedings, then the party moving for nullity cannot be said to have been deprived of the legal right of having the opportunity to do so.

Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices, and is thus subject to nullification: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether enforcement of the judgment would, be unconscionable .or inequitable. Belle Pass Terminal, supra, 01-0149, p. 6, 800 So.2d at 766. In the instant case the plaintiffs offer no evidence or arguments that were not available to them in the original proceedings Accordingly, they fail to meet the first criterion for nullity, i.e., there is nothing in the record to show that they have been deprived of any legal right as a result of the judgment of which they eom-plain. Additionally, the plaintiffs fail to meet the second criteria for nullity as they have failed to show that the enforcement of the judgment would be unconscionable or inequitable because the financial projections that are essential to their claim of nullity have already been determined by this Court to be irrelevant and immaterial.

This Court in Delta I explained why it rejected the unsupported allegations of the plaintiffs concerning the profitability and value of DRMP:

Plaintiffs strenuously object to the trial court’s finding in this area, as they do dispute the evidence offered at the motion for partial summary judgment. Defendants properly supported their motion, offering up documentation supporting their assertion (and the trial judge’s finding) that DRMP did not make money during |sthe years stated. Plaintiffs, on the other hand, have offered no evidence that DRMP did turn a profit. They have offered evidence of Delta’s general financial well-being; however, they have not demonstrated that the profitability of the corporation was dependent upon the welfare of its subsidiary DRMP. Beyond this, plaintiffs can only allege that DRMP proved to be as profitable as the projections indicated. Mere allegations are not enough to overcome the prima facie case stated by defendants, and do not meet plaintiffs’ burden under Art. 966.
Accordingly, the trial court did not err in granting partial summary judgment to defendants, ruling that they had no duty to disclose this particular set of financial projections for DRMP. [Emphasis added.]

Id., 99-0170, pp. 5-6, 748 So.2d at 39.

Essentially, the plaintiffs’ nullity claim in the instant appeal is really nothing more than an attempt by the plaintiffs to secure a “second chance to prove a claim that was previously denied for failure of proof,” which is exactly what the Louisiana Supreme Court warned against in Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766; See also Calcasieu Parish School Bd. v. Parker, 02-339, p. 4 (La.App. 3 Cir. 10/2/02), 827 So.2d 543, 545; and Morton Bldg., Inc. v. Redeeming Word of Life Ch., 01-1836, p. 6 (La.App. 1 Cir. 10/16/02), 835 So.2d 685, 689.

Let us assume for purposes of argument only, that we draw the inference from the depositions of Tom Maxwell and Genelle Gavin that the plaintiffs wish us to draw, i.e., that Jon Maxwell was the author of the disputed projections. Let us further assume, also for purposes of argument only, that from this inference we now conclude that the trial court in the original proceeding erred in not finding the existence of a genuine issue of material fact sufficient to defeat the defendants’ motion for partial summary judgment in Delta I and their motion for summary ¡judgment in Delta II of which the plaintiffs complain in the instant nullity action. It would still do nothing to advance the plaintiffs’ cause as it would constitute mere error, which is not a sufficient basis for overturning a previously rendered final judgment. Once a judgment becomes res judicata, it is not reversible on grounds of mere error. Id.

Moreover, if we were to disregard the fact that this Court effectively determined in Delta I that the DRMP projections were not material and instead assumed for purposes of argument that the DRMP projections could be material if prepared by Jon Maxwell as alleged by the plaintiffs, the plaintiffs still face the insurmountable obstacle of offering no evidence to show that Jon Maxwell prepared the projections. Instead of evidence they ask this Court to infer from the fact that the defendants had to be compelled to answer the request for admissions that the defendants had something to hide and that this Court should then infer that the only thing the defendants could have to hide is the fact that Jon Maxwell was the true author of the handwritten projections. Plaintiffs’ argue that the defendants’ failure to voluntarily comply with discovery creates an adverse evidentiary presumption. We disagree. This is a radical argument concerning discovery procedure that finds no basis in the Code of Civil Procedure or in the jurisprudence. Moreover, we find it ironic that the plaintiffs failed to properly respond to the defendants’ discovery requests in the instant nullity proceedings until forced to do so by order of the trial court in response to the defendants’ motion to compel.

Thus, the plaintiffs’ position is not evidence, but mere argument. Summary judgment cannot be defeated by mere argument. Argument of counsel and briefs, |inno matter how artful, are not sufficient to raise a genuine issue of material fact. Attardo v. Salvador, 96-1170 (La.App. 4 Cir. 2/5/97); 688 So.2d 1296.

Therefore, we must return once again to the inescapable fact of history: that this Court in Delta I effectively determined that the projections are not material regardless of who may have created them.

Finally, we note that plaintiffs cited no cases concerning nullity of judgments. They cited only boiler-plate general summary judgment cases in their original brief. In their reply brief, the plaintiffs cited no cases on any issue.

Summary judgments are favored. Our de novo review of the record in this matter reveals no genuine issue of material fact. There is no basis for reversing the judgment of the trial court.

II. DEFENDANTS’ ANSWER TO THE APPEAL

The defendants answered the appeal asking for sanctions under La. C.C.P. art'. 2164 for frivolous appeal. We can find no cases in which an appeal from an unsuccessful nullity action was found to be frivolous. However, Comments — 2001, Comment (b) under La.C.C.P. art. 2004 states that:

When a party is made a defendant and forced to re-litigate the validity of a prior judgment in response to a merit-less nullity action alleging fraud or an ill practice, an award of attorney fees may also be considered.

The defendants did not invoke this provision in the trial court. The case cited by the defendants in support of their claim for sanctions for frivolous appeal, State Farm Mut. Auto. Ins. v. Callahan, 571 So.2d 852 (La.App. 3 'Cir.1990), does not involve a nullity action. The Callahan court noted that the trial court gave lengthy reasons for judgment which included an explanation of why the defendant’s claimed defense was frivolous. Thus, the appellant in the Callahan Incase was appealing from a decision that included a determination that his position was frivolous. In the instant case there are no explicit or implicit findings by the trial court from which it- can be inferred, that the trial court found the plaintiffs claim, to be frivolous in nature.

It was, therefore, more difficult for the appellant in Callahan to rebut the appel-lee’s contention that he had no good faith basis for his appeal, which is important because implicit in those few cases finding appeals to be frivolous is an element of bad faith.

Appeals are favored in the law and no penalties should be awarded for frivolous appeal unless it is manifestly clear that the appeal was taken solely for delay or that the appealing counsel does not sincerely believe in the view of the law that he is advocating. Hardy v. Easy T.V. and Appliances of Louisiana, Inc., 01-0025, p. 9 (La.App. 4 Cir. 12/12/01), 804 So.2d 777, 782; Sherman for and on Behalf of Magee v.B&G Crane Service, 455 So.2d 1275 (La.App. 4 Cir.1984). Appellate courts are reluctant to grant frivolous appeal damages because of the chilling effect the award may have on the appellate process. Tillman v. Thrasher Waterproofing, 00-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131,136.

Although a successful appeal is by definition non-frivolous, the converse is not true because appeals are favored. Lee v. Alton Ochsner Medical Foundation, 01-650, p. 8 (La.App. 5 Cir. 10/17/01), 798 So.2d 1225, 1229. Damages for frivolous appeal are properly awarded only when the proposition advocated is so ridiculous or so opposed to rational thinking that it is evident beyond any doubt.that it is being deliberately, professed for ulterior purposes. Brown v. Beauregard Elec. Co-op., Inc., 94-512, p. 6 (La.App. 3 Cir. 12/14/94), 647 So.2d 668, 673.

Lain, Harris v. Gaylord Bag Co., 26,335 (La.App. 2 Cir. 12/7/94), 647 So.2d 542, 544, the court, in deciding that sanctions for frivolous appeal were not warranted, made much of the fact that plaintiffs counsel submitted an appellate brief with citations of authority in support of her position on appeal. While the appellate court found no merit in the appellant’s assignments of error, they found that counsel was sincere in advocating them.

La.C.C.P. art. 2164, which allows damages for a frivolous appeal, is penal and must be strictly construed. Elloie v. Anthony, 95-0238, p. 3 (La.App. 4 Cir. 8/23/95), 660 So.2d 897, 899. Because an award of such damages is penal in nature, we must construe the issue strictly in favor of the appellant. Levy v. Levy, 02-0279, pp. 17-18 (La.App. 4 Cir. 10/2/02), 829 So.2d 640, 650. Any doubt regarding the frivolous nature of an appeal must be resolved in favor of the appellant. City of Ruston v. Perritt, 30,896 (La.App. 2d Cir.9/23/98), 718 So.2d 1044.

In Levy, supra, this Court noted that:

Applying the rule of strict construction against [appellee’s] motion [for sanctions], we conclude there has not been such a clear showing that [appellant’s] assignments of error, while not persuasive legally or factually, have been interposed solely for the purpose of delaying the litigation.

Id., 02-0279, p. 18, 829 So.2d at 650.

It is even more certain in the instant case than it was in Levy that this appeal can serve no purpose of delay. The merits of the underlying claim have already been disposed of by the previous judgments of this Court and nothing in the instant case can serve to retard the effectiveness of those prior judgments. While delay is |13not the only basis for frivolous appeal, it is one of the major factors to be considered.

Moreover, we also note that in the instant case, as in Levy, “in both brief and appellate hearing, counsel for [plaintiffs] appeared to be serious and sincere in his argument.” Id.

While this is a close case, based on the foregoing review of the jurisprudence concerning sanctions for frivolous appeal, we decline to award sanctions.

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

AFFIRMED.

MURRAY, J., concurs in the result.

      . Plaintiffs' brief asks this Court to consider the deposition testimony of Tom Maxwell and Genelle Gavin. However, the plaintiffs had that deposition testimony in their possession prior to the time the judgment was rendered in Delta II that they now seek to nullify. The plaintiffs make no complaints about their access to the deposition testimony and we assume that they had the opportunity to be represented by counsel when those depositions were taken.