author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Deandre JOHNSON.
    No. 2006-1263.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Charles A. Riddle, III, District Attorney, 12th Judicial District Court, Michael F. Kelly, Asst. District Attorney, Marks-ville, LA, for Plaintiff/Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Deandre Johnson.
    Deandre Johnson, Angola, LA, In Proper Person, Deandre Johnson.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   GREMILLION, Judge.

Lin this case, the defendant, Deandre Johnson was convicted of second degree murder, a violation of La.R.S. 14:30.1, and was sentenced to life imprisonment without the benefit of parole. He has timely appealed asserting that he acted in self-defense and that the State did not prove beyond a reasonable doubt that the killing was not justified. In the alternative, he claims that the evidence was insufficient to prove second degree murder, but was sufficient to support the responsive verdict of manslaughter. Defendant also argues that the trial court erred when it denied his motion for a new trial. For the following reasons, we reverse the conviction for second degree murder and vacate the sentence, enter a conviction for manslaughter, and remand for resentencing. Further, we affirm the trial court’s denial of his motion for a new trial.

FACTS

The victim, Willous Johnson, went to Defendant’s apartment, located in Hess-mer, Louisiana, around eleven o’clock at night on December 2, 2004. An altercation occurred between the victim and Defendant at the door when the victim tried to force his way into the apartment. Defendant stabbed the victim in the neck with a kitchen knife. The victim left the doorway, but collapsed and died in the parking lot of the apartment complex. Defendant put the victim’s body into the trunk of his live-in girlfriend’s car and with her and two children he drove to Baton Rouge where he disposed of the body in a ditch along a country road. The next morning, he sent his girlfriend home. When she arrived back in Hessmer, she contacted the police | ¡.and led them to the body. Defendant fled to California. He was apprehended ten months later.

SELF DEFENSE

In his assignment of error, Defendant argues that the facts as presented to the jury did not sustain a verdict of second degree murder because he acted in self-defense. He claims that he stabbed the victim, who was his cousin, to prevent him from unlawfully entering his apartment to cause him great bodily harm or even death. Defendant asserts that his fear of great bodily harm or death was reasonable because the victim had severely beaten him a few weeks prior to the killing and was in possession of a gun when he attempted to force entry into his home. He further maintains that the State did not prove beyond a reasonable doubt that he had the requisite intent to commit second degree murder. , He argues, at the very least, that the act of stabbing was committed in the “heat of passion.”

In State In re D.P.B., 02-1742, pp. 4-6 (La.5/20/03), 846 So.2d 753, 756-57 (footnote omitted) (alteration in original), wherein the accused asserted justifiable homicide, the supreme court observed:

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he 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. Captville, 448 So.2d 676, 678 (La.1984). Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocense.” La. R.S. 15:438; see State v. Jacobs, 504 So.2d 817, 820 (La.1987) (all direct and circumstantial evidence must meet the Jackson test); State v. Porretto, 468 So.2d 1142, 1146 (La.1985) (La. R.S. 15:438 serves as an | aevidentiary guide for the jury when considering circumstantial evidence). Furthermore, in a case in which defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

Second degree murder is defined as the killing of a human being “[w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1. Justifiable homicide is defined, in pertinent part, as:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. The homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter.

La.R.S. 14:20.

At trial, Dr. L.J. Mayeux, coroner for Avoyelles Parish, testified regarding the autopsy report which established the cause of death of the victim. The autopsy was performed in Pointe Coupee Parish because that was where the body was found and decomposition had begun. Dr. May-eux did not perform the autopsy, but testified from the autopsy report. He further testified as to the pictures taken of the Lwounds inflicted on the victim. Dr. May-eux stated that there were two knife wounds to the victim’s neck. The first one, approximately three inches long, was a superficial wound. According to Dr. Mayeux, the second wound, which was the fatal wound, was located inside the first cut and was a deep cut that severed the carotid artery and the trachea. Dr. May-eux said that the victim would have bled to death within three minutes of the infliction of the second wound. He further testified that the cut of the carotid artery would have caused a spraying of blood. Dr. Mayeux further stated that other than ascertaining that the knife was not serrated, there was nothing from the wounds to indicate what type of knife was used.

Jeffery Carmouche, a homicide detective with the Avoyelles Parish Sheriffs Office, testified that he was the lead investigator on this case. He stated he was notified of a homicide a little before midnight on December 2, 2004. The information was received from a 911 call placed a few minutes earlier. He said that the caller gave the name and location of the victim to the 911 operator. A Cottonport police officer heard the call and recognized the name of the victim and the Kricket Corner Apartments. The officer knew that the victim had a cousin, Defendant, living in that apartment complex. Detective Carmouche testified that the Hessmer City Police were already at the scene when he arrived. He said that they found Defendant’s apartment unlocked and empty. Also, Defendant’s live-in girlfriend’s car, a 1998 green Chevrolet Malibu, was not in the parking lot.

Detective Carmouche testified that early in morning of December 3, 2004, they took Lawrence Johnson and Robert Jones into custody. It was Johnson who had made the 911 call. Later in the day, they took Dametria Clayton, | .¡Defendant's live-in girlfriend, into custody and impounded her vehicle. Detective Carmouche identified pictures of the vehicle and of the blood found on the rear bumper and in the trunk of the car. Clayton eventually led the detective to the location of the victim’s body outside of Baton Rouge.

Johnson, who lived in Marksville, testified he was not related to either the victim or Defendant. He said that he was a friend of the victim, but also knew Defendant on a more social basis. He stated that on the evening of December 2, 2004, he, Robert Jones, and Jones’s three-year-old son, were cruising around with the victim in his girlMend’s car, a 1988 Oldsmobile. They stopped and bought beer. He stated that the victim might have drunk a can of beer. Johnson said that eventually they drove to Defendant’s apartment complex in Hessmer where they smoked a marijuana cigarette. According to Johnson, the victim parked the car in an area that could not be seen from Defendant’s apartment. The victim told the two men he was going to talk with his cousin, and he would be right back.

Johnson stated that he and Jones waited in the car for several minutes. He said that he finally got out of the car to check on the victim and found him laying in a pool of blood in the parking lot. He testified that he saw no one else in the parking lot. He stated that he and Jones left to get help. Johnson claimed that they did not know where the police department was in Hessmer, so they drove back to Marks-ville and called 911 from a friend’s house. He said that he then called the victim’s girlfriend, picked her up, and was on his way back to Hessmer when the police stopped him and took him into custody. He stated that when they arrived at Defendant’s apartment complex, the body was gone.

lfiOn cross-examination, Johnson testified he had seen the victim earlier in the day with a small hand gun in his possession. However, he said he did not see the gun later that night. He also described a fight he had witnessed between the victim and Defendant approximately a month before, where the victim gave Defendant a thorough beating. He said that at the end of the fight, Defendant grabbed a pipe out of his car and chased after the victim.

Jones’s testimony corroborated Johnson’s testimony. He further testified that he had witnessed the fight between the victim and Defendant prior to the incident in question. He stated that the victim had to be pulled off Defendant; he then stated:

Deandre was all beat up real bad, clothes all tore off and everything (UNINTELLIGIBLE) was trying to put Willous in the house, but Deandre started talking noise and Willous in the house, but Deandre started talking noise and Willous talking noise, but at that time Willous standing outside, he was torn down, you know, he was just like whatever I’m going to leave it alone. Then Deandre went to the car and got a ... something like a stick, a long stick or something and chase behind him. When he was chasing behind him he told him when I catch you I’m going to kill you, but when he ran behind him he couldn’t catch him.

Dametria Clayton, Defendant’s live-in girlfriend and the mother of his two children, testified that on the evening of December 2, 2004, she was sleeping in the living room of the apartment when someone knocked on the door. She was eight months pregnant with their second child and had her sister’s eight-week-old baby with her. Instead of answering the door, she went into the bedroom and woke Defendant. She testified that Defendant had been ill and had gone to the hospital earlier in the day. He had taken medicine and went to bed early. She stated that she followed him to the door. According to Clayton, Defendant tried to look out the kitchen window to see who was at the door or to see if there was a car outside, but he l^could not see who was at the door. When he asked who was there, the victim answered, “Reese.” She said when Defendant cracked the door to see if it was Reese, who was a friend of his, the victim tried to push his way into the apartment. She said that Defendant and the victim pushed the door back and forth while Defendant told the victim to leave, that “I don’t have time for this.” She said that Defendant could not get the door closed, so he picked up a knife laying on the counter next to the door. She claimed that the knife was a smooth-edged kitchen knife which had been left on the counter from putting up peaches earlier in the day. Clayton testified that because she was standing behind the door, she did not see Defendant stab the victim. She said she did not hear the victim threaten Defendant or Defendant threaten the victim. She stated that Defendant then left, came back into the apartment a few minutes later and told her to pack up the kids because they were going to leave. She said that she told him she did not want to leave and he said “[W]ell, I guess I have to kill you too.” She testified that Defendant was scared and told her the victim had a gun.

Clayton testified that she saw the victim’s body a few minutes later when they went out into the parking lot and got into the car. She said she did not see anyone, but later stated that she saw the victim’s girlfriend’s ear in the parking lot with two men sitting in it. According to Clayton, Defendant drove a few miles and dropped her off. He returned a short time later, and she said he then told her that the victim’s body was in the trunk of the car. She stated that they stopped at a car wash in Bunkie where Defendant washed the car, and they then drove to Baton Rouge. Once in Baton Rouge, Clayton said they found a dead-end road, and Defendant dumped the victim’s body into a ditch beside the road. She said that they spent the 1 Srest of the night at a friend’s house. The next morning, Clayton stated that they went to Wal-Mart where she bought Defendant some clothes. She testified that they next went to a motel where she rented a room for Defendant for three nights. She said that she then returned to her mother’s house in Hessmer with the children and the police were subsequently called.

Clayton testified that there was ongoing animosity between Defendant and the victim, particularly since the fight a few weeks before. She stated that the victim had messed with him earlier on the day of the killing. Clayton testified that the fight was about drugs and that the victim thought Defendant owed him something because he had done some prison time because of Defendant. She said that the victim did a year in prison following an event involving Defendant and a girl, and the victim had attacked the girl’s father.

Claude Weatherford, a crime scene investigator with the Rapides Parish Sheriffs Office, testified regarding the blood located at the scene of the killing. He explained that the pictures submitted as exhibits showed the various locations of the blood from the door of the apartment to the pool of blood in the parking lot. According to his description of the location of the blood, the stabbing took place in the doorway of the apartment as described by Clayton. He said that there was a spray of blood on the door frame. His testimony reflected that the trail of blood grew heavier as it led to the parking lot, where a pool of blood was located with a drag mark through the blood.

As we noted above, when an accused raises self-defense, the burden is on the State to prove, beyond a reasonable doubt, that he did not act in self-defense. ]¿‘The determination of a defendant’s culpability focuses on a two fold inquiry: 1) whether, from the facts presented, the defendant could have reasonably believed his life to be in imminent danger, and 2) whether deadly force was necessary to prevent the danger.” State v. Mills, 04-489, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 953, 959, writ denied, 05-1470 (La.1/13/06), 920 So.2d 235. “Factors to consider in determining whether a defendant had a reasonable belief the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing and the Defendant’s knowledge of the assailant’s bad character.” State v. Nelson, 34,077, p. 6 (La.App. 2 Cir. 12/6/00), 775 So.2d 579, 584.

While there is no requirement that the accused must retreat from the confrontation, the possibility of escape is a factor to be considered in determining if the accused had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Woodhead, 03-1036 (La.App. 5 Cir. 1/27/04), 866 So.2d 995, writ denied, 04-598 (La.7/2/04), 877 So.2d 144.

In State v. Eugene, 03-1128 (La.App. 5 Cir. 1/27/04), 866 So.2d 985, writ denied, 04-0515 (La.1/14/05), 889 So.2d 263, the defendant, convicted of second degree murder, alleged that she stabbed her boyfriend in self-defense. The fifth circuit affirmed Eugene’s conviction despite overwhelming evidence that the victim routinely physically abused her. During her testimony, she stated that she feared for her life during the fight. She testified that as he was choking her, she pushed him away and went into the kitchen to get a knife. She testified he did not have a weapon. She returned to the living room and stabbed him as he sat in a chair. |inThe fifth circuit stated that “rational jurors could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense, and therefore, that defendant was guilty beyond a reasonable doubt.” Id. at 993.

The State argues that Defendant had no reason to be afraid of the victim as he was not physically imposing. The record reflects that he was 5'9" tall and weighed 170 pounds. While the jury had the benefit of seeing Defendant in the courtroom, the jurors had to rely on Dr. Mayeux’s testimony as to the victim’s stature, which came from a report prepared by a third party.

Defendant argues that there was ample reason to fear great bodily harm, even for his life. The victim provoked the confrontation when he showed up late at night and unannounced, he hid his vehicle from view, and identified himself as someone else. Despite Defendant refusing to allow the victim to enter the apartment and telling him to leave, the victim continued to attempt to force his way inside. When he came back into the apartment after stabbing the victim, Defendant told Clayton that the victim had a gun. Clayton testified that the victim had “messed” with Defendant earlier in the day, and all three witnesses, Clayton, Johnson, and Jones, testified that the victim had given Defendant a severe beating a few weeks before the killing. Finally, Defendant knew that the victim had spent a year in prison for a crime of violence.

Defendant further argues retreat or escape was not an option in the present case. He claims that retreat was not an alternative because if he had retreated from the door, the victim would have entered the apartment and there was no evidence that he would then have had an avenue of escape. There was no testimony Inthat there was a back door out of which Defendant could have escaped, nor was there testimony that there was a phone which Defendant could have used to call for help. Neither the diagram of the apartment nor the pictures of the apartment complex admitted into evidence show a back door or a telephone in the apartment.

Defendant further argues that deadly force was necessary to stop the unlawful intrusion, and that force was justified by the “shoot the burglar” provision of La. R.S. 14:20(4)(a), cited above. Defendant points to State In re: D.P.B., 846 So.2d 753, wherein the supreme court discussed the “shoot the burglar” provision as it was applicable to that case. D.P.B. was convicted of manslaughter. However, the court of appeal reversed, contending that the State failed to show D.P.B.’s actions were not justified pursuant to the “shoot the burglar” statute. The accused and his best friend had spent the evening drinking and fighting. According to witnesses, this was a familiar pattern in their relationship in that the two would drink, fight, then make-up the next day and be best friends again. On this particular night, after fighting all evening, the victim showed up at D.P.B.’s house in the early morning.

The pertinent facts are as follows:

Defendant was in his bedroom when he heard J.P.R.’s vehicle. He knew it was J.P.R. because he heard the activation of the vehicle alarm. Upon realizing it was J.P.R., defendant went from his bedroom to the living room where he observed J.P.R. enter through the unlocked carport door which led into the kitchen of the home. Defendant told J.P.R. to get out of the house or he would be shot. Defendant claimed J.P.R. told him to do what he had to do. Thereafter, defendant retrieved a .30-30 hunting rifle from the fireplace mantle of the living room and loaded two rounds of ammunition into the weapon before J.P.R. reached him. Defendant alleged he called for his father, who was asleep in his bedroom. Defendant claimed that J.P.R. grabbed the barrel of the weapon and the two struggled as they traveled approximately thirteen feet, ten inches from the fireplace into a hallway leading to the front door of the house. [ ,¾⅛ the hallway, the weapon discharged striking J.P.R. in the lower abdomen.

Id. at 755 (footnote omitted).

The supreme court reinstated the manslaughter conviction, finding that the provision did not apply in the case. The supreme court held:

La. R.S. 14:20(4) provides that a homicide is justifiable when committed by a person lawfully inside a dwelling against a person who has made an unlawful entry into the dwelling and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises. Under the traditional statutes, La. R.S. 14:20(1) or (2), defendant would not have been justified in shooting his friend. However, the legislature’s enactment of the “shoot the burglar” provisions of La. R.S. 14:20(3) or (4), eliminated any duty to retreat from an intruder in one’s home, and eliminated any requirement that the shooter believe himself to be “in imminent danger of losing his life or receiving great bodily harm.” Thus, the court of appeal embraced La. R.S. 14:20(4) to justify defendant’s fatal shooting of his friend. However, we find this provision not applicable to the specific facts of this case.
The instant set of circumstances surely is not what the legislature envisioned when it justified committing a homicide against a “person who is attempting to make an unlawful entry.” La. R.S. 14:20(4). In State v. Plumlee, 177 La. 687, 149 So. 425 (1933), this Court stated that, “[0]ne has no right to take human life directly or indirectly to prevent trespass or any other petty crime.” While Plumlee dealt with the justification of deadly force to prevent a felony, see La. R.S. 14:20(2), the Court’s discussion of proportionate use of deadly force remains pertinent here:
Two things must concur in order to justify us in killing another to prevent him from committing some act; first, it must reasonably appear necessary in order to prevent him from committing a crime; and second, the crime to be prevented must be a great crime, and not a petty offense from which no great injury would result to us or others, in body or property. Therefore, if it reasonably appears that the crime can be prevented by any other available means, as by a warning, by a show of force, or by the use of any force short of killing, the killing would not be justified. And if the crime to be prevented was a petty offense, not hJikely to result in great injury in body or property to us or others, we would not be justified in killing to prevent it, even if it could not be prevented by any other means.
Plumlee, 149 So. at 428. In the instant case, the state offered several options, none of which would be considered retreat, but which would have been more reasonable than defendant using deadly force against his friend, J.P.R. First, defendant could have called 911. Second, he could have locked the carport door. Third, he could have awakened his father upon seeing J.P.R. enter the carport door. Fourth, he could have “beat his a—” again.

Id. at 755-56, (alteration in original).

In the present case, this court could determine that as in D.P.B., Defendant’s use of force was disproportionate to the circumstances of someone knocking on his door at eleven o’clock at night. Defendant had the option of not opening the door until he ascertained who was at the door or to call 911. In this instance, we find that the State met its burden of proving beyond a reasonable doubt that Defendant did not act in self-defense and that the “shot the burglar” provision is inapplicable. Accordingly, the killing was not justified and this assignment of error is without merit.

MANSLAUGHTER

Even though we find that the killing was not justified, we find merit in Defendant’s second assignment, that the evidence is insufficient to prove second degree murder, but would support a conviction of manslaughter because the State failed to prove that Defendant had the specific intent to kill the victim.

Manslaughter, in pertinent part, is defined as:

A homicide which would be murder under either Article 80 (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 |14and 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.

La.R.S. 14:31(A)(1). While “sudden passion” and “heat of blood” are mitigating factors to a charge of murder, an accused need only establish the mitigating factors by a preponderance of the evidence. State v. Fontenot, 05-553 (La.App. 3 Cir. 12/30/05), 918 So.2d 1096; State v. Baldwin, 96-1660 (La.12/12/97), 705 So.2d 1076, cert. denied, 525 U.S. 831, 119 S.Ct. 84, 142 L.Ed.2d 66 (1998).

Defendant asserts that the State failed to prove that he had the intent to kill the victim. To be convicted of second degree murder, the State has to show that an accused had the specific intent to either kill the victim or inflict great bodily harm. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Specific intent may be inferred from the circumstances and actions of the accused. State v. Graham, 420 So.2d 1126 (La.1982). The State points out that Defendant’s actions were not consistent with someone who had stabbed another man in a reactive moment. He hid the body and fled to California. See State v. Wallace, 612 So.2d 183 (La.App. 1 Cir.1992), writ denied, 614 So.2d 1253 (La.1993). However, Defendant argues that his actions after the killing were not indicative of his intent since he was in bed when the victim appeared at his door at eleven at night, he tried to keep the victim out of his house, yelled for him to go away, and only grabbed the knife off the counter during the scuffle. The evidence clearly shows that the victim provoked the confrontation in the first place.

|1BWe find that the circumstances of the present case are more like the circumstances in State In re: D.P.B., 846 So.2d 753, wherein the victim entered the accused’s house in a threatening manner without authorization, and the accused was convicted of manslaughter, as opposed to Eugene, 866 So.2d 985, wherein the defendant, who was convicted of second degree murder, left the victim sitting in a chair in the living room, walked into the kitchen to retrieve a knife, returned, and stabbed him.

The State argues that there was thirty days between the fight and this incident, therefore, Defendant’s blood should have cooled. However, the fight was not the provocation for “the heat of blood” in this instance. Defendant was asleep when the victim arrived and did not want the victim in his home. He was tricked into opening his door and then had to fight to keep the victim out. He had a confrontation with the victim earlier in the day and had been beaten up by him less than a month before. While the force used in this case was excessive, we find that there was “provocation sufficient to deprive an average person of his self-control and cool reflection.” In that regard, we hold that the jury abused its vast discretion in finding that Defendant committed second degree murder, and we reverse that conviction and vacate the sentence pronounced by the trial court for that crime. In its place, we enter a conviction of the lesser and included offense of manslaughter. The matter is remanded to the trial court for resentenc-ing for the crime of manslaughter.

NEW TRIAL

Finally, Defendant asserts that the trial court erred when it denied his motion for a new trial. In his motion, Defendant alleged:

|1fi[T]he defendant through the attorney has learned that the prosecution witness committed perjury in that he denied originally seeing a gun and removing a gun from the body of the victim. Further on information and belief the victim was attempting to kill the defendant. The above constitutes new evidence sufficient to grant a new trial.

At the hearing, defense counsel advised the trial court that he had subpoenaed several witnesses, including Lawrence Johnson and Anthony Simmons, who were the only ones to appear. Defense counsel put Simmons on the stand. He asked Simmons if Johnson told him that the victim had a gun on his person when he went to talk to Defendant on the evening of the killing and that he removed the gun after he found the victim dead in the parking lot. Simmons denied ever being told that.

Louisiana Code of Criminal Procedure Article 851(3) provides, in pertinent part, a trial court shall grant a motion for a new trial whenever “[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” Obviously, evidence that the victim was armed when he went up to Defendant’s door and that one of the witnesses removed the gun from the victim’s body after he died could have affected the outcome of the trial. However, based on the testimony given at the hearing on the Motion for a New Trial, this evidence simply did not exist, and the trial court had no recourse but to deny Defendant’s motion. Therefore, this assignment of error has no merit.

TERRORS PATENT

We review all appeals for errors patent on the face of the record in accordance with La.Code Crim.P. art. 920. After reviewing the record, we find that there are no errors patent, but we note that the minutes of the jury’s verdict contain an error. The minutes of the jury’s verdict state that the jury’s verdict was unanimous. However, the jury’s verdict form and the transcript of the polling of the jury indicate that the jury’s verdict was actually ten to two (10-2) for a conviction. Thus, the minutes of the jury’s verdict should be amended to correctly reflect the polling of the jury; therefore, the trial court is ordered to amend the minutes accordingly with fifteen days of the date of this opinion.

CONCLUSION

We hold that the State did not prove that Defendant possessed the requisite intent to kill when he stabbed the victim, but rather, was acting in the “heat of blood” when he inflicted the injury which resulted in the victim’s death. Accordingly, we reverse the conviction for the crime of second degree murder and vacate the sentence imposed by the trial court for that crime. We enter a conviction for the crime of manslaughter and remand to the trial court for the imposition of sentence. Finally, the minutes of the jury’s verdict should be amended to correctly reflect that the jury’s vote was ten to two (10-2) rather than unanimous.

REVERSED AND SENTENCE VACATED, RENDERED, AND REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Constance Deshotels HEBERT v. Donald R. HEBERT.
    No. 06-1315.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      James L. Daniels, Ringuet, Daniels and Collier, Philip C. Kobetz, Lafayette, LA, for Defendant/Appellant, Donald R. Hebert.
    Ronald D. Cox, Charles G. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Plaintiff/Appellee, Constance Deshotels Hebert.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

|-iThe appellant sought a reduction/termination in his monthly spousal support obligation to his former wife. Following a hearing on the issue of whether there had been a change in the parties’ financial circumstances, the trial court denied the appellant’s rule. The appellant seeks review of that denial. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

Donald R. Hebert and Constance Des-hotels Hebert were divorced in May 1996. Thereafter, by consent judgment, Mr. Hebert began paying spousal support. In February 2002, Mr. Hebert filed a Rule for Decrease in Alimony due to Ms. Hebert’s receipt of social security benefits. By stipulation of the parties in April 2002, Mr. Hebert’s support payments were reduced to $1,100.00 per month. The matter now before the court stems from a “Rule for Decrease in Alimony” filed by Mr. Hebert in August 2005, wherein he alleged that his impending retirement constituted a change in circumstances, and, therefore, his support obligation “should be terminated 12effective October 1, 2005[.]” In an amended rule, filed in October 2005, Mr. Hebert sought termination or, alternatively, a decrease in support.

In February 2006, the matter proceeded to a bifurcated hearing with the issue of whether there had been a change of circumstances being presented to the trial court. The trial court denied the rule. Mr. Hebert appeals.

1 ^Discussion

Material Change in Circumstances

Mr. Hebert contends that the trial court erred in failing to find that he had sustained a significant and material change in circumstances as his retirement, at age sixty-nine, had caused a substantial reduction in his income.

Louisiana Civil Code Article 114 provides as follows with regard to a reduction in spousal support:

Art. 114. Modification or termination of award of periodic support
An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obli-gor spouse shall not constitute a change of circumstance.

As for the applicable burden of proof, La. R.S. 9:311(A) provides that: “An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.” This rule is applicable to situations involving spousal support obligations established by consent judgment. Maturin v. Maturin, 96-808 (La.App. 3 Cir. 12/11/96), 685 So.2d 468 (citing Richardson v. Richardson, 93-575 (La.App. 3 Cir. 2/2/94), 631 So.2d 114), writ denied, 97-0121 (La.3/21/97), 691 So.2d 82.

A trial court’s determination of whether a change in circumstances has been demonstrated is entitled to great deference on review. Dauphine v. Dauphine, 511 So.2d 53 (La.App. 3 Cir.1987). A resulting award will not be disturbed absent an abuse of discretion. Id. See also Maturin, 685 So.2d 468. After review, we find that a reversal of the dismissal is required insofar as the trial court failed to recognize that |4Mr. Hebert demonstrated a material change in circumstances and, thereafter, failed to conduct a hearing on the issue of Ms. Hebert’s ongoing need.

At the time of the 2002 reduction in Mr. Hebert’s support obligation to $1,100.00 per month, he was employed as a hospital administrator. Mr. Hebert testified that, in September 2005 and at the age of sixty-nine, he retired from his position. Prior to retirement, his gross earnings had been approximately $200,000.00 per year and approximately $13,000.00 per month. However, after retirement, his gross monthly earnings were reduced to $4,525.00. He explained that this figure is comprised of social security benefits and two retirement pensions. Additionally, as noted by the trial court, Mr. Hebert’s current spouse contributes approximately $3,000.00 to the household income. Thus, Mr. Hebert’s income has been significantly reduced following retirement.

The reasons for ruling indicate reliance on a number of cases for the proposition that “voluntary retirement” alone does not permit a termination of spousal support. See Desoto v. Desoto, 98-1889 (La.App. 3 Cir. 5/5/99), 740 So.2d 154; Maturin, 685 So.2d 468; Mitchell v. Mitchell, 92-1461 (La.App. 3 Cir. 11/3/93), 626 So.2d 571, writ denied, 93-2877 (La.1/28/94), 630 So.2d 792. Without resolving the question of whether a person of retirement age is said to have voluntarily retired, we note that, in both Maturin and Mitchell, the court obviously found a material change in circumstance as reductions of spousal support were ordered.

Insofar as the trial court failed to recognize that Mr. Hebert met his initial burden of proving a material change of circumstances, it was in error. With this recognition at the close of the bifurcated hearing, the parties could have proceeded to introduce evidence regarding ongoing need. The trial court’s comments in reasons |Rfor ruling regarding Ms. Hebert’s ongoing need and necessitous circumstances were based on evidence that was directed to the initial question of whether there was a material change of circumstances. We do not reach the question of whether Mr. Hebert is entitled to a decrease in or termination of his support obligation, but find only that, since he established a material change in circumstances, he is entitled to have the remaining question considered on appropriate evidence. Accordingly, we reverse the dismissal of Mr. Hebert’s rule to terminate/decrease alimony and remand the matter for the trial court to hold the remainder of the hearing on the remaining question of what, if any, reduction in the spousal support obligation is warranted.

DECREE

For the foregoing reasons, the dismissal of the rule to decrease alimony is reversed, and the matter is remanded for further proceedings. All costs are assessed to the appellee, Constance Deshotels Hebert.

REVERSED AND REMANDED.

      . The judgment of April 2002 provided that:
      IT IS HEREBY ORDERED, ADJUDGED AND DECREED that effective April 1, 2002 Donald R. Hebert’s alimony payments' will be reduced to the sum of $1,100.00 in addition to the following:
      (a) To the extent that the following exceeds the sum of $500.00 monthly, all royalty, rental, working interest payments, bonuses, and any other type of cash or in kind payments received by CONSTANCE DES-HOTELS HEBERT as a result of her ownership of one-half of the mineral rights in and to that certain tract of immovable property formerly owned by the parties in community. ... Other than any monthly payments, any and all other payments, whether in cash or in kind, shall be pro-rated for the term of said payments. For example, any yearly rental payments shall be pro-rated prospectively on a 12 month basis for purposes of this calculation;
      (b) That certain monthly retirement benefit[s] paid to CONSTANCE DESHOTELS HEBERT by Parochial Employees' Retirement System of Louisiana, said retirement benefit originally acquired by DONALD R. HEBERT as a result of his employment, and divided in equal proportions by the parties in their community property partition agreement.

      . In reasons for ruling, the trial court explained:
      Right now. I believe before me is the first—We've severed this hearing into two (2) parts. One, the beginning is showing the change of circumstance, and I'm going to rule on that.
      A party seeking to alter an alimony award must show a change in circumstance of either party from the time of the award to the time of the rule. Donald's retirement did produce a reduction in his income; however, voluntary retirement alone will not result in a termination of alimony payments to a spouse whose needs have remained the same. Juris prudence [sic] regarding this rule is Mitchell versus Mitchell, Maturin versus Maturin, and DeSot[o] versus DeSot[o].

      Constance’s needs seem to have increased, albeit she received an inheritance amounting to over Thirty-five Thousand ($35,000.00) when her mother died and was able to remove herself of debts, relieve herself of debt. She also testified that her health needs as well as daily living expenses, such as gas for her car, have increased. The Court finds that her position has remained essentially unchanged since the last award.
      In the Maturin case which also considered the [e]ffect of voluntaiy retirement on spousal support, the obligee's income had even increased, similarly to Constance’s. Evidence shows that Donald's income was
      reduced from Sixteen Thousand Dollars ($16,-000.00) per month to less than Eight Thousand ($8,000.00), including contributing income of Three Thousand ($3,000.00) from his present wife. This reduction is due to his voluntary retirement which he admitted, although he had reached retirement age he still could have retained his position with his former employer. However, he also admitted that he had received monies from the sale of property in Arkansas which also increased his savings.
      Article 114 of the Civil Code states that an award of periodic support may be modified in the circumstances of either party materially changing—either party's material change and shall be terminated if it becomes unnecessary.
      This Court finds that not only are there no material changes other than a voluntary change of employment, but the termination or modification of the spousal support would put Constance after a short period in necessitous circumstances.


text:
    COMMONWEALTH LAND TITLE INS. CO. v. O’Neal JONES, Jr.
    No. 2006-1277.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Lawrence R. Anderson, Jr., Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Plaintiff/Appellant, Commonwealth Land Title Ins. Co.
    David J. Ayo, James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendant/Ap-pellee, O’Neal Jones.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   GREMILLION, Judge.

hThe plaintiff, Commonwealth Land Title Insurance Company, appeals the trial court’s grant of summary judgment in favor of the defendant, O’Neal Jones, Jr., finding that its claims against Jones had been extinguished due to the peremption periods provided by La.R.S. 9:5605 and 9:5606. For the following reasons, we affirm.

FACTS

On December 9, 2000, Commonwealth and Jones entered into a Title Insurance Agency Agreement whereby Commonwealth appointed Jones as its agent for the issuance of title insurance in Louisiana. On December 28, 2001, Jones closed a loan in the amount of $350,000, between Robert C. Hawkins and his mother, Katherine A. Hawkins, and Universal Lending. Prior to closing the loan, Jones performed a title examination of the subject property used as collateral. The property, located in Baton Rouge, had belonged to Katherine and her husband, Robert’s father, who was now deceased. Thus, half of it now belonged to Robert. In performing the title examination, Jones discovered a judgment filed in the East Baton Rouge Parish public records in favor of Kenny St. Romaine d/b/a Pinnacle Warehouse, L.L.C. v. Softex America, Inc., and Robert C. Hawkins, in the amount of $180,000. An affidavit of distinction was not obtained by Jones prior to the loan’s closing.

Subsequent to December 28, 2001, St. Romaine seized the property and had it sold pursuant to a sheriffs sale in satisfaction of his judgment against Hawkins’ one-half interest in the property. Thereafter, on February 14, 2005, Commonwealth sued Jones based on his failure to properly examine the public ^records while performing a title search on the property and his failure to discover the preexisting judgment prior to issuing the title policy. In response, Jones filed a peremptory exception of peremption pursuant to La.R.S. 9:5605, pertaining to legal malpractice. At the hearing on the exception, the parties determined that further discovery was required. Thus, the trial court continued the matter to a later date. During the interim, Jones filed a motion for summary judgment. He again alleged peremption pursuant to La.R.S. 9:5605, but further argued that Commonwealth’s claims were per-empted pursuant to La.R.S. 9:5606, pertaining to professional insurance agents.

Following a hearing on the exception and motion, the trial court took the matter under advisement. Subsequently, it issued reasons for judgment finding that Commonwealth’s claims against Jones were perempted pursuant to both La.R.S. 9:5605 and 9:5606. This appeal followed.

ISSUES

On appeal, Commonwealth raises five assignments of error. It argues that the trial court erred in considering evidence introduced on the motion for summary judgment in deciding the exception of per-emption. It next argues that the trial court erred in finding that Jones was acting as its attorney when he performed the title examination and certified the title, in applying the peremptive period pertaining to insurance agents, and in finding that December 28, 2001, was the date which triggered the three-year peremptive periods. Finally, it argues that the trial court erred in applying the three-year peremp-tive period as it is suing Jones on an indemnity clause pursuant to its agency agreement.

^SUMMARY JUDGMENT

It is well settled that appellate courts perform a de novo review of the record on the appeal of a trial court’s grant of summary judgment. Pursuant to La.Code Civ.P. art. 966(B), summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

EVIDENCE

In its first assignment of error, Commonwealth argues that the trial court erred in considering the evidence attached to Jones’ motion for summary judgment in deciding the peremptory exception of per-emption. Commonwealth objected to the introduction of the evidence at the hearing. Thus, it claims that as Jones introduced no testimony in support of its exception, the trial court had no proper evidence to consider in reaching its decision. We disagree.

Louisiana Civil Code of Procedure Article 931 provides that evidence may be introduced in support of the peremptory exception when the grounds supporting the exception do not appear on the face of the pleadings. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 06-0401 (La.10/17/06), 939 So.2d 1227. Furthermore, we find that Commonwealth’s argument results in a distinction without a difference, as Jones’ summary judgment motion raised the exact same issues as the peremptory exception of per-emption, a fact noted by Commonwealth’s counsel at the hearing. Accordingly, the trial court did not err in considering the summary judgment evidence in ruling on the peremptory exception |4of peremption.

PEREMPTION

In his next assignments of error, Commonwealth argues that the trial court erred in applying the peremptive periods found in La.R.S. 9:5605 and 9:5606 to find that its causes of action against Jones were perempted.

Louisiana Revised Statutes 9:5605

Commonwealth argues that there was no lawyer-client relationship between it and Jones when he issued the title insurance policy, rather, he was acting in his capacity as its title insurance agent. Thus, it claims that La.R.S. 9:5605 does not apply to perempt its action.

Louisiana Revised Statutes 9:5605 provides:

A. No action for damages against any attorney at law duly admitted to practice in this state ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and per-emptive period shall be governed exclusively by this Section.
IsE. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

Commonwealth and Jones entered into a principal-agent relationship via its December 9, 2000 contract, through which Jones would issue title insurance policies on Commonwealth’s behalf. Thus, this strictly speaking was not a lawyer-client relationship. However, the action by Jones of which Commonwealth complains specifically deals with the practice of law in that it complains that he failed in his title examination and certification to discover the preexisting judgment against Robert C. Hawkins. The Louisiana Title Insurance Act, which regulates the title insurance industry in Louisiana, provides: “Examining titles; however, any titled insurance report or title insurance policy relating to immovable property shall be based upon an examination of title conducted only by attorneys duly licensed and authorized to practice law in Louisiana.” La.R.S. 22:2092.2(17)(b)(vi).

Louisiana Revised Statutes 22:2092.4 provides:

Subject to the exceptions and restrie-tions contained in this Part, a title insurer shall have the power to:
(3) Perform, or cause to be performed, ancillary activities, unless prohibited by the department, including examining title to and furnishing related information about movable or immovable property and procuring and furnishing information about movable or immovable property and procuring and furnishing information about relevant personal property, whether or not in contemplation of, or in conjunction with, the issuance of a title insurance report or policy; however, any such activities that are defined by R.S. 37:212 as the practice of law shall only be performed by an attorney duly licensed and authorized to practice law in Louisiana.

The practice of law is defined in La.R.S. 37:212. Section B of that statute provides | (¡that:

Nothing in this Section prohibits any person from attending to and caring for his own business, claims, or demands; or from preparing abstracts of title; or from insuring titles to property, movable or immovable, or an interest therein, or a privilege and encumbrance thereon, but every title insurance contract relating to immovable property must be based upon the certification or opinion of a licensed Louisiana attorney authorized to engage in the practice of law....

It is this certification upon which Commonwealth bases its claim. It lists in its petition the following negligent actions of Jones which caused its losses, costs, and/or expenses:

(a) Failing to determine from the mortgage records of East Baton Rouge Parish that there was a preexisting and uncancelled Judgment by St. Romaine against Robert Hawkins recorded as an encumbrance against the Property prior to issuance of the Policy;
(b) Failing to perform a proper title search of the mortgage records of East Baton Rouge Parish in the names of the proposed mortgagors, particularly in the name of Robert Hawkins;
(c) Failing to properly review the mortgage records of East Baton Rouge Parish to determine the outstanding and uncancelled Judgment in favor of St. Romaine against Robert Hawkins recorded as an encumbrance against the Property;
(d) Failing to exercise due professional care and skill in connection with issuing the title opinion or certificate of title upon which the Policy was based;
(e) Abstracting and/or examining the public records of East Baton Rouge Parish for the title to and/or encumbrances against the Property in a negligent manner;
(f) Failing to list the St. Romaine Judgment as an exception to the title commitment for the Policy as a prior existing and uncancelled encumbrance that needed to be cancelled;
(h) Failing to see what should have been seen from documents in the public record[.]

|7A11 of the above actions arose from Jones’ examination and certification of the title at issue. As a title examination and certification can only be done by an attorney licensed to practice law in the state, we find that Commonwealth’s claims, as based on the above stated actions, arose from Jones’ actions as an attorney. Accordingly, we find that the peremptive period found in La.R.S. 9:5605 would apply to those claims of negligence.

Louisiana Revised Statutes 9:5606

Commonwealth further argues that if strictly construed, La.R.S. 9:5606 would not apply in this instance as the statute does not specifically mention title ■ insurance agents. We find no merit in this argument. Louisiana Revised Statutes 9:5606 provides in pertinent part:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

As title insurance agents must be licensed by the state in order to issue title insurance policies, we find that they fall within the purview of La.R.S. 9:5606. In its petition, Commonwealth claims that Jones was negligent in “[flailing to list the |sSt. Romaine Judgment in the settlement statement and/or pay funds necessary to cancel the St. Romaine Judgment from the closing for the Mortgage on which the Policy was issued.” It further argues that he was negligent in failing to “take other timely and appropriate action prior to issuing the policy.” As these actions pertain to Jones’ duties as a title insurance agent, we find that La.R.S. 9:5606 would apply to Commonwealth’s claims against him as pertaining to these actions. Furthermore, we find that La.R.S. 9:5606 applies to all claims brought against Jones, in his capacity as a title insurance agent, even those brought pursuant to an indemnity agreement. Accordingly, this assignment of error is dismissed as being without merit.

TRIGGERING DATE

In its next assignment of error, Commonwealth argues that the trial court erred in finding that December 28, 2001, was the date which triggered the running of the above stated peremtory periods. It argues that Jones’ delivery of the policy to the insured on June 27, 2002, was the triggering date of the peremptory periods, thus, its February 14, 2005 suit was timely filed within the three-year peremptive period.

Although the language in La.R.S. 9:5605 and 9:5606 differs slightly, a cause of action under either statute must be brought within a year of the act which forms the basis of the claim or within a year of the date that the act is discovered or should have been discovered. In all events, a complaining party must file his/her claim within three years of the date of the act.

In the recent case of Atlas Iron and Metal Co. v. Ashy, 05-458, pp. 4-5 (La.App. 3 Cir. 1/4/06), 918 So.2d 1205, 1209-10, writ not considered, 06-296 (La.4/28/06); 927 So.2d 276, we stated with regard to the peremptory period found in J^La.R.S. 9:5605:

The prescription periods in this statute are peremptory. This means that both the underlying cause of action and the legal right to bring that cause of action dissolve at the end of the specified periods of limitation. There are two ways to start the peremption clock running under La.R.S. 9:5605. The per-emption period will begin to run one year from the date when a client knew or should have known about the act, omission, or negligence on the part of his or her attorney that indicates that the client may be a victim of an act of malpractice. See La.R.S. 9:5606(A). Additionally, the peremption clock will start running on the date of the act, omission, or negligence that allegedly constitutes malpractice, and will toll three years from that date regardless of whether a client discovered, knew, or should have known about the attorney’s alleged malpractice. Id. “Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. Reeder v. North, 97-0239, p. 12 (La.10/21/1997), 701 So.2d 1291, 1298 (citing Hebert v. Doctors Mem’l Hosp., 486 So.2d 717, 723 (La.1986)).

We further stated (alternation in original):

The Louisiana Supreme Court has made it clear that a cause of action for legal malpractice can perempt and extinguish even if the client never discovers that cause of action, or the facts never ripen into a justiciable case. Reeder, 701 So.2d 1291. “[T]here is no doubt that the Legislature intended that three years after the ‘act, omission, or neglect,’ the cause of action is extinguished, regardless of when the negligence is discovered and regardless of whether a malpractice action may be brought within that three year period.” Id. at 1297. Therefore, peremption begins to run when a client knows or should have known of an act, omission, or negligence by their attorney even though the cause of action may not ripen into a justiciable claim until the client experiences some damages. Id. If no damages are incurred within three years of the act, omission, or negligence, the cause of action and right of action per-empts regardless. Id.

Id. at 1213.

On December 28, 2001, Jones, on behalf of Commonwealth, issued a Commitment for Title Insurance to Universal Lending in the amount of $350,000, with the property owned by Robert and Katherine used as collateral. The mortgage | inon the property was closed that same date, as evidence by the settlement statement attached to the title policy and signed by Robert and Katherine and by Jones. The title policy itself indicates that it became effective on December 28, 2001.

Earle A. Johnson, Jr., a vice president and manager for Louisiana of Commonwealth, a company held by Land America Commonwealth Land Title Insurance Company, testified as to the effective date of the subject title policy. He stated that the policy became effective on December 28, 2001, and that Jones’s title examination would have occurred prior to that date.

Jones testified that he performed his title examination on the Hawkins’ property shortly before the loan closing on December 28, 2001. During his examination, he stated that he found two judgments against Robert C. Hawkins, the first, # 95811225, Capital One v. Robert Hawkins, in the amount of $1600; the second judgment, # 9011001, St. Romaine d/b/a Pinnacle Warehouse, L.L.C. v. Softex America, Inc. and Robert C. Hawkins, in the amount of $180,000.

Jones stated that the first judgment was paid off, but that Hawkins assured Universal Lending that the second judgment was not against him. Although he attempted to obtain an affidavit of distinction from St. Romaine, Jones stated that he did not receive one. He further testified that Universal Lending, who exclusively performed the mortgage work for Hawkins’ home improvement company, insisted that Hawkins was not involved in the lawsuit and scheduled the loan closing even though it knew that the judgment was not cleared from the title. It was for these reasons that the judgment did not appear on Schedule B of the title policy. Jones testified that he sent a copy of the title policy to the lender sometime after June 27, In2002, upon its request.

On Commonwealth’s claims against Jones pursuant to La.R.S. 9:5605, we find that its claims were perempted by the three-year period as the act of negligence of which it complains, his examination and certification of the title, occurred shortly before or on December 28, 2001. As this occurred more than three years prior to Commonwealth’s filing of its petition on February 14, 2005, we find that its claim has perempted.

With regard to its claims against him as a professional insurance agent, we find that those claims are also perempted. In its petition, Commonwealth claimed that Jones was negligent in failing to list the St. Romaine judgment in the settlement statement or to obtain a cancellation of the judgment prior to closing the loan. The title policy document states that its effective date is December 28, 2001. This was confirmed by Johnson. Although the lender did not receive a copy of the title policy until after June 27, 2002, the alleged act, omission, or neglect of which Commonwealth complains occurred on December 28, 2001, the failure to list the preexisting judgment on the settlement statement and on Schedule B of the title insurance policy. Accordingly, we find that the trial court correctly granted summary judgment and sustained Jones’ peremptory exception of peremption in this matter.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Commonwealth Land Title Insurance Company.

AFFIRMED.


author: PAINTER, Judge.

text:
    Thomas CANNON, Jr. v. HAMILTON TRANSPORTATION.
    No. 06-1302.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Edward A. Kaplan, Alexandria, LA, for Plaintiff-Appellee, Thomas Cannon, Jr.
    Robert A. Dunkelman, S. Michael Cooper, Shreveport, LA, for Defendants-Appellants, Hamilton Transportation, L.L.C. and Employers Self Insurers Fund.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| ¶ Defendants, Hamilton Transportation, L.L.C. (Hamilton) and Employers Self Insurers Fund, appeal a judgment finding that they wrongfully terminated Plaintiff, Thomas Cannon’s, Workers’ Compensation benefits; and denied surgery; reinstating the benefits and awarding penalties and attorney’s fees.

FACTS

As the Workers’ Compensation Judge (WCJ) stated in his reasons for judgment, it is undisputed that on October 4, 2002, while employed by Hamilton, Cannon had an accident in the course and scope of his employment. At that time, he was bent over changing a truck tire when he felt a pop in his lower back. He filed a disputed claim for compensation in November 2002, and Hamilton or its insurer paid workers’ compensation benefits. A micro-discecto-my was performed on Cannon’s back in June 2003. In January 2004, Dr. Louis Blanda, Cannon’s treating physician, released him to light duty employment. However, Cannon’s symptoms allegedly continued, and in June 2004, Dr. Blanda suggested that he have additional surgery. In June 2004, Buster Fontenot, a vocational rehabilitation specialist hired by Hamilton, advised Cannon of some light duty jobs. In July 2004, based on those jobs and light duty restrictions set out in Dr. Blanda’s report, Hamilton and its insurer terminated Cannon’s compensation benefits. The jobs were not tendered to Dr. Blanda for his approval for some time, and he approved them in December 2004. Hamilton amended his disputed claim for compensation benefits alleging that the benefits were arbitrarily terminated and asking for penalties and attorney’s fees.

Hamilton obtained a second medical opinion regarding the proposed additional surgery in October 2004 and refused to pay for the surgery recommended by 12Cannon’s treating physician. In February 2005, Hamilton hired a private investigator to conduct video surveillance of Cannon and, based on those videos, filed an amended answer to Cannon’s disputed claim for compensation alleging that Cannon willfully made false statements for the purpose of obtaining workers’ compensation benefits.

The matter was tried on May 16, 2006. The court rendered judgment and gave oral reasons for judgment on August 14, 2006, finding that Hamilton wrongfully terminated Cannon’s benefits and denied surgery, reinstating Plaintiffs benefits and awarding penalties and attorney’s fees. Hamilton and its insurer appeal. Cannon answers the appeal asking for additional attorney’s fees for work done on appeal.

DISCUSSION

The manifest error or clearly wrong standard governs appellate review in workers’ compensation cases. Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. Under the manifest error standard, the appellate court must determine whether the WCJ’s factual findings are reasonable in light of the record reviewed in its entirety. Pugh v. Casino Magic, 37,166 (La.App.2d Cir.4/11/03), 843 So.2d 1202, rehearing denied. However, where there is manifest error or an error of law, the WCJ’s decision is owed no deference by the reviewing court and may be overturned. Roan v. Apache Chemical Transporters, 37,671 (La.App.2d Cir.9/24/03), 855 So.2d 920.
This court has stated that “the workers’ compensation act is remedial in nature and that in order to effectuate the humane policies it reflects, the law is to be liberally construed in favor of the injured employee.” Roan, 855 So.2d at 923. However, statutory provisions allowing penalties and attorney fees are penal in nature and must be strictly construed. Tron v. Little Italiano, Inc., 38,556, 38,557, 38,558 (La.App.2d Cir.6/25/04), 877 So.2d 1055.

Collins v. Patterson Drilling, 39,668, pp. 5-6 (La.App. 2 Cir. 5/11/05), 902 So.2d 1264, 1267-68.

| JFraud Defense

Hamilton asserts that the WCJ erred in failing to uphold its fraud defense under La.R.S. 23:1208. It is Hamilton’s contention that Cannon lied about his ability to work and was actually working as an auto mechanic. Hamilton supports its contention with a video surveillance tape which shows Cannon apparently working on several vehicles.

In order to prevail on its fraud defense, Hamilton must prove: (1) that Cannon made a false statement or representation; (2) that he made the false statement or representation willfully; and (3) that he made it for the purpose of obtaining any workers’ compensation benefits or payment. Standard Companies, Inc. v. Trahan, 05-593 (La.App. 3 Cir. 12/30/05), 918 So.2d 1167, writ denied, 06-278 (La.4/28/06), 927 So.2d 285.

The WCJ found that the video was not sufficient to show that Cannon was working on vehicles not owned by himself. We note that nothing in the video demonstrates that Cannon was being paid for the small amount of car repair work shown. Further, the WCJ found that nothing shown indicated that Cannon was doing anything incompatible with the restrictions placed on him by his physicians and that the video fell short of showing that Cannon is capable of doing sustained work on a daily basis. While the WCJ acknowledged certain inconsistencies in Cannon’s trial and deposition testimony and the matters shown on the video tape, he found that these contradictions did not rise to such a level as to warrant forfeiture of benefits.

Our review of the record convinces us that Hamilton has not carried its burden of proof in this regard. The video shows Cannon working on two cars for less than one-half hour each over a three day period. Nothing in the video or testimony |4establishes that Cannon was paid for any automotive repair work after his accident. Nothing in the video or testimony establishes that Cannon did work incompatible with the restrictions placed on him by his physicians. Nothing in the video or testimony establishes that Cannon was capable of performing as a full-time auto mechanic. Because there is no proof that Cannon was working on automobiles for payment, or that he was able to work as a mechanic, there has been no showing that Cannon made a false statement regarding his employment or his employability. Accordingly, we find no error in the WCJ’s decision to reject Hamilton’s fraud defense.

Benefits

Hamilton next asserts that it was justified in terminating Cannon’s benefits because Cannon’s treating physician released him to light duty work, and Cannon has not shown that he is not capable of earning 90% of his average weekly wage so as to be entitled to Supplemental Earnings Benefits (SEBs) Under La.R.S. 23:1221.

The WCJ found that the surgery recommended for Cannon and the treatment necessitated by that surgery entitled him to temporary total disability benefits (TTDs). This conclusion is supported by the evidence of Dr. Blanda, Cannon’s treating physician who recommended the surgery, and that of Dr. Gregory Gidman, who opined that if Cannon was going to have additional surgery, he had not reached maximum medical improvement and would not do so until nine to twelve months post-surgery.

The WCJ had a reasonable basis for finding that Cannon is entitled to TTDs. Thus, finding no manifest error, we affirm his award of TTDs.

| ¡Penalties and Attorney’s Fees

Finally, Hamilton argues that the WCJ erred in awarding penalties and attorney’s fees because its decision to terminate benefits and deny payment of surgery were reasonable in light of the surveillance video, Cannon’s refusal to pursue the proffered jobs, and the medical opinions of Drs. Gaar and Gidman.

The evidence of record suggests that benefits were terminated, and Hamilton later tried to find an excuse for its actions. First, the benefits were terminated months before the surveillance video was made. Additionally, while Hamilton asserts that it was justified in terminating benefits because of Cannon’s failure to pursue the jobs located by the vocational rehabilitation specialist, it failed to have those jobs reviewed by Cannon’s treating physician for a determination as to whether he was physically able to perform them until several months after benefits were terminated. See Harris v. Christus St. Patrick Hosp., 02-1502 (La.App. 3 Cir. 10/22/03), 857 So.2d 1278, writ denied, 03-3193 (La.2/13/04), 867 So.2d 697 (claimant not unreasonable in failing to pursue jobs not approved by her physician).

Hamilton next asserts that the WCJ erred in finding that it unreasonably failed to authorize additional surgery because the testimony of Dr. Frazier Gaar and the surveillance video support the conclusion that Cannon does not need additional surgery.

Dr. Gaar saw Cannon only once in June 2005. Dr. Gidman, although he saw Cannon on more than one occasion, stated only that he felt additional testing should be done before considering surgery. Dr. Blanda treated Cannon over a period of years. In June 2004, Dr. Blanda recommended anterior lumbar interbody fusion | ^surgery for Cannon’s continued complaints of pain, and opined that the surgery would give him fairly good relief of his symptoms.

It is the function of the WCJ to assess the weight to be accorded both the lay and the medical testimony, and the court may accept or reject the opinion of a medical expert depending upon what impression the qualifications, credibility, and testimony of that expert make on the court. Davison v. Horseshoe Casino, Inc., 31,166, pp. 4-5 (La.App. 2 Cir. 10/28/98), 720 So.2d 785, 787, writ denied, 98-2950 (La.1/29/99), 736 So.2d 833.

Ivy v. V’s Holding Co., 02-1927, p. 7 (La.App. 1 Cir. 7/2/03), 859 So.2d 22, 28.

Further, as stated by the WCJ, Hamilton waited several months before seeking a second opinion as to the need for additional surgery. This failure to take timely action is sufficient to support the trial court’s determination that the failure to authorize benefits was arbitrary and capricious. See Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792.

Given the evidence of record and the time frame within which actions were taken, we find no error in the WCJ’s decision to award penalties of $2000.00 for arbitrary and capricious termination of benefits and $2000.00 for failure to authorize surgery.

Answer to Appeal

In his answer to this appeal, Cannon asks for additional attorney’s fees for work performed on appeal. Given the fact that the appellant was unsuccessful in this appeal and that it necessitated additional work, we find that an additional award of fees is appropriate. See Mauldin v. Town of Church Point, 05-1294 (La.App. 3 Cir. 4/5/06), 925 So.2d 1269. Having considered these proceedings, along with the Prewitt’s brief filed with this court, we award an additional $1,500.00 in attorney’s fees on appeal.

^CONCLUSION

For these reasons, the judgment rendered by the WCJ is affirmed. An additional attorney’s fee on appeal in the amount of $1,500.00 is awarded to the Ap-pellee, Thomas Cannon, Jr. Costs of this appeal are assessed to Hamilton and Employers Self Insurers Fund.

AFFIRMED.


author: SEXTON, J.

text:
    STATE of Louisiana, Appellee, v. Derrell MENDENHALL, Appellant.
    No. 40,986-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 7, 2007.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART & SEXTON (Pro Tempore), JJ.
   On Remand

SEXTON, J.

| ¶ This matter is on remand from the supreme court for consideration of remaining issues in the appeal following the supreme court’s reversal of our decision on the issue of the sufficiency of the advisement of Defendant, Derrell Mendenhall, of his right of confrontation. Finding no merit in the remaining assignments of error, we affirm Defendant’s conviction and sentence.

DISCUSSION

Defendant pled guilty to attempted distribution of marijuana, admitting that he knowingly and intentionally attempted to distribute marijuana to a confidential informant. He was sentenced to five years at hard labor. On appeal, this court vacated Defendant’s conviction and sentence, finding that he had not been adequately advised of his sixth amendment right of confrontation. See State v. Mendenhall, 40,986 (La.App.2d Cir.5/19/06), 930 So.2d 1196, (Brown, J. dissenting). The supreme court reversed and remanded the matter for review of the remaining issues not considered by this court on original appeal. State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560.

The issues that must now be considered by this court involve the State’s failure to identify the confidential informant in the case and whether the five-year sentence for this offender is excessive.

Identity of Confídential Informant

As a general rule, an informant’s identity is privileged information. La. C.E. art. 514; State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000). | ?This privilege is founded upon public policy that seeks to further and protect the public interest and law enforcement by encouraging people to supply information to the police by protecting their anonymity. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Oliver, 430 So.2d 650 (La.1983), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688. The defendant bears the burden of showing exceptional circumstances which would require divulging a confidential informant’s identity, and the trial court has much discretion in deciding whether disclosure is warranted. State v. Coleman, 97-2802 (La.4/24/98), 713 So.2d 440; State v. Branch, 30,733 (La.App.2d Cir.7/6/98), 714 So.2d 1277, writ denied, 98-2359 (La.1/8/99), 734 So.2d 1227. A showing that the informant participated in the crime constitutes an exceptional circumstance requiring disclosure. State v. Thompson, 27,543 (La.App.2d Cir.12/6/95), 665 So.2d 686. The only attempt to obtain information about the informant’s identity was contained in a motion filed pro se by Defendant after he entered a guilty plea. The issue was not raised prior to the plea or at the plea hearing. During the plea, and after the prosecutor read the facts supporting the charge to Defendant, including the fact that the confidential informant entered the house and asked for $20 “worth of weed,” the trial court asked Defendant, “Is that what happened?” Defendant answered, “Yes, sir.” There were no other exchanges involving the confidential informant whatsoever.

A guilty plea relieves the state of the burden of proving guilt and waives the defendant’s right to question the state’s case as well as appellate preview of the case against the defendant. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. Specifically, a plea of guilty waives all nonjurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976); State v. Torres, 281 So.2d 451 (La.1973); State v. Taylor, 30,531 (La.App.2d Cir.5/13/98), 714 So.2d 143. Here, Defendant failed to inquire as to the identity of the confidential informant before entering a guilty plea and failed to reserve his right to raise this issue on appeal under Crosby, supra. Accordingly, we conclude that Defendant waived any claim to this information. Defendant’s right of confrontation was not violated by lack of knowledge of the informant’s identity.

Excessive Sentence

Defendant argues that his sentence was excessive because the trial court failed to consider mitigating factors such as his young age and that this was his first felony offense. Defendant states that the court noted his prior misdemeanor arrests, but failed to mention that he had not been convicted. He argues that he attempted to explain his statement to the probation officer contained in the pre-sentence investigation report about whether he sold drugs to supplement his income. He claims that the trial court should not have relied on the recommendation of the Department of Corrections that no portion of the sentence be suspended. The State argues that Defendant is not entitled to raise this issue for the first time on appeal. The State further claims that Defendant’s failure to present any mitigating factors at sentencing, his admission that he regularly sold marijuana and his | /‘substantial prior criminal record” support a finding that the sentence was not excessive.

The sentencing range for distribution of marijuana, the crime with which Defendant was originally charged, is imprisonment for not less than 5 nor more than 30 years at hard labor, and a fine of not more than $50,000. La. R.S. 40:966(B)(3). Any person convicted of attempted distribution of marijuana may be imprisoned for not more than 15 years at hard labor and/or fined not more than $25,000. La. R.S. 40:979(A).

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452.

|sThe important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); Bradford, supra.

A substantial advantage obtained by means of a plea bargain, such as a reduction of the charge where the evidence shows the offender is guilty of the more serious offense originally charged, is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176; Bradford, supra.

Lin the present case, the guilty plea to the reduced charge of attempted distribution reduced Defendant’s sentence exposure by one-half. At the sentencing hearing, the trial court reviewed Defendant’s age and the fact that he was a first-felony offender. Further, the trial court discussed Defendant’s eight prior misdemean- or arrests for assault and battery charges primarily “stemming from other men associating with his girlfriend,” and Defendant concurred that those arrests had occurred. When the trial court asked Defendant about his statement in the pre-sentence investigation report about selling drugs to supplement his income, Defendant replied, “I didn’t mean it like that.” The trial court replied, “You operated a drug business out of your house, involving your family in this business.” Defendant answered, “Yes, sir, I made a mistake, sir.”

The sentence imposed is at the low end of the range available for this crime, and Defendant received the benefit of a plea to the reduced charge of attempted distribution. As stated, the trial court considered Defendant’s age and arrest history. On this record, we find nothing shocking or grossly disproportionate in this sentence.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Derrell Mendenhall, are affirmed.

AFFIRMED.