author: KUHN, J. GUIDRY, J.,

text:
    STATE of Louisiana v. Jeanie M. HANO.
    No. 2005 KA 2090.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy Pendergast, Metairie, Counsel for Plaintiff/Appellee State of Louisiana.
    Laurie A. White, Bradley E. Black, New Orleans, Counsel for Defendant/Appellant Jeanie M. Hano.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

2Defendant, Jeanie M. Hano, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:3o.1. She entered a plea of not guilty and, after a trial by jury, was found guilty as charged. The trial court denied defendant’s motions for post verdict judgment of acquittal and a new trial and sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant’s motion to reconsider sentence was also denied. Defendant appeals. We affirm the conviction and sentence.

STATEMENT OF FACTS

On July 9, 2003, Crystal Guidera discovered her sixteen-year-old boyfriend, T.J.J., unconscious. Crystal contacted defendant with whom she had lived periodically and to whom she referred to as “Aunt Jeanie” although the two were not actually related. Defendant in turn contacted her fiancé, Chad Falgout, to assist T.J.J. regain consciousness. After several unsuccessful attempts of reviving T.J.J., defendant drove him to St. Tammany Parish Hospital in Covington, Louisiana. T.J.J. never regained consciousness during his hospitalization and needed to use a ventilator until he died on August 2, 2003. According to his death certificate, T.J.J. died of a poly-substance drug overdose of methadone and benzodiazepines.

3OTHER CRIMES EVIDENCE

Among her complaints in the appellate challenge of her conviction and sentence, defendant asserts the trial court failed to conduct a hearing on the State’s second notice of intent to introduce other crimes evidence. She avers that the trial court erred in admitting that evidence.

At the commencement of trial, out of the presence of the jury, the State advised the court of a conversation in which defendant had asked Crystal to relay to the victim’s father and other authorities that somebody had slipped T.J.J. a “Mickey” or something like that. The statement was included in a supplemental motion filed by the State and for which the defense did not lodge an objection. During the trial, Crystal related the gist of the conversation to the jury; again the defense did not lodge an objection. And when Crystal repeated the content of the conversation to the jury a second time, the defense again did not object. In her testimony, defendant conceded the fact and content of the conversation.

An evidentiary issue is not preserved for appellate review, unless a contemporaneous objection to the evidence was entered. See La. C.E. art. 103 A(1); La.C.Cr.P. art. 841. Because defendant did not contemporaneously object to the statement, this alleged error was not preserved for appeal.

SUFFICIENCY OF THE EVIDENCE

Defendant asserts that the evidence was insufficient to support her 4conviction under La. R.S. 14:30.1 A(3). Specifically, she maintains that the failure of the police to interview her son, Ian Hano, or his friend, Justin Whitfield, amounted to an incomplete investigation and that the State’s reliance on the victim’s girlfriend, Crystal, who had a faulty memory, was on drugs at the time of her statement to the police, and gave inconsistent trial testimony that was not credible, was insufficient to establish beyond a reasonable doubt that defendant distributed or dispensed methadone to the victim or that the victim ingested or consumed the controlled dangerous substance. She also asserts that the evidence demonstrated that the methadone was, at most, a contributing factor to the victim’s death but is insufficient to prove beyond a reasonable doubt that it was a direct cause of the victim’s death.

In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court 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). That standard of appellate review, which was adopted by the Legislature in enacting La.C.Cr.P. art. 821, is whether the evidence, when 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. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt.

5Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). Accordingly, our role is not to assess credibility or reweigh evidence. State v. Smith, 94-3116, p. 2 (La.10/16/95), 661 So.2d 442, 443. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Higgins, 2003-1980, p. 6 (La.4/1/05), 898 So.2d 1219, 1226, cert. denied, - U.S. -, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

Louisiana Revised Statute 14:30.1 A(3) defines second degree murder as the killing of a human being when, among other things, the offender unlawfully distributes or dispenses a controlled dangerous substance classified in Schedule I or II, which is the direct cause of the death of the recipient who ingested or consumed the substance. Methadone is classified as a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule II(B)(11). To support the conviction under La. R.S. 14:30.1 A(3), the record must contain evidence that: (1) defendant distributed or dispensed methadone to the victim, (2) the victim ingested or consumed the controlled dangerous substance, and (3) the victim died as a direct cause of ingesting or consuming the controlled dangerous substance.

6For purposes of the Uniform Controlled Dangerous Substances Law, La. R.S. 40:961 to 40:995, “distribute” is “to deliver a controlled dangerous substance whether by physical delivery, administering, subterfuge, furnishing a prescription, or by filling, packaging, labeling or compounding the substance pursuant to the lawful order of a practitioner.” La. R.S. 40:961(14). “Dispense” is “to deliver a controlled dangerous substance to the ultimate user or human research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for such delivery.” La. R.S. 40:961(13). “Deliver” and “delivery” are defined as “the transfer of a controlled dangerous substance whether or not there exists an agency relationship.” La. R.S. 40:961(10). The case law has defined “deliver” as transferring possession or control. The transfer of possession or control, i.e., distribution, is not limited to an actual physical transfer between the culpable parties but may be accomplished by the imposition of a third party. State v. Parker, 536 So.2d 459, 463 (La.App. 1st Cir.1988), writ denied, 584 So.2d 670 (La.1991).

A defendant may be guilty as a principal in the crime of distribution if she aids and abets in the distribution or directly or indirectly counsels or procures another to distribute a controlled dangerous substance. See La. R.S. 14:24. Although “[i]t is not necessary to ‘sell’ contraband to aid and abet its distribution” a “distributor” must do more than merely receive the controlled substance as a user. State v. Celestine, 95-1393, pp. 3-5 (La.1/26/96), 671 So.2d 896, 897-898 (per curiam)(and cases cited).

An appellate court is constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases; that ^determination rests solely on the sound discretion of the trier of fact. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Azema, 633 So.2d 723, 727 (La.App. 1st Cir.1993), writ denied, 94-0141 (La.4/29/94), 637 So.2d 460; State v. Quinn, 479 So.2d 592, 596 (La.App. 1st Cir.1985).

We turn first to defendant’s contention that the evidence is insufficient to establish that she distributed the controlled dangerous substance to T.J.J. and that he ingested it. We find the following testimony descriptive of events and pertinent to our discussion.

Timothy L. Johnson, the father of the victim, testified that he became aware of the T.J. J.’s drug use when he was arrested and enrolled in drug court. Although T.J.J. tested positive for the drug Ecstasy while in drug court and spent a couple weeks in a juvenile detention facility, he graduated from drug court without further incident in May of 2003. Crystal began residing with the Johnsons when she was thirteen years old. Apparently Crystal’s mother moved a lot and, to keep Crystal in school regularly, Johnson invited Crystal to live with them. Three days before T.J.J.’s death, when he was sixteen and Crystal was fourteen, Johnson permitted T.J.J. to move into an apartment with Crystal near Crystal’s aunt.

On July 9, 2003, at approximately 4:15 p.m., defendant called Johnson and told him that T.J.J. had taken an overdose. Defendant said that she was taking T.J.J. to St. Tammany Parish Hospital and that Johnson did not need to meet them 8there. At the hospital, Johnson talked to Crystal, who advised him that defendant had been the provider of the drugs that T.J.J. had taken.

Detective Fred Roshto, an employee of the St. Tammany Parish Sheriffs Office at the time of the incident who conducted the investigation of T-J.J.’s death, interviewed Crystal at the time of T.J. J.’s admission to St. Tammany Parish Hospital. Crystal told the detective that she and T.J.J. had purchased and ingested narcotics, and that T.J.J. appeared to have overdosed. Crystal said that leftover narcotics were located at their apartment in a wooden cigar box on the bedroom floor and gave Detective Roshto consent to search the apartment.

Detective Roshto could not locate the box. Crystal’s aunt advised him that defendant had come to the apartment and retrieved the box, telling him where defendant lived. At her residence, Detective Roshto found defendant along with Falg-out and Ian. Defendant told the detective that she had taken T.J.J. to the hospital and that Falgout had picked her up and brought her home from there; she had not gone anywhere after leaving the hospital. Detective Roshto advised defendant of her Miranda rights, explaining that he had reason to believe she had been to the victim’s apartment. Stating that she was groggy, defendant then acknowledged she had returned to the residence to retrieve a DVD player. She also admitted that she had taken the cigar box, which contained marijuana, and that she had subsequently disposed of the box and its contents by tossing them into a dumpster at a gas station.

At Detective Roshto’s request, defendant and Falgout agreed to provide further statements at the sheriffs office. At the station, defendant stated that she had thrown the cigar box and its contents on the side of the road. But when 9Detective Roshto advised her that the empty cigar box had been retrieved from a dumpster near her residence, defendant admitted she had thrown it there, continuing to claim that she had disposed of the marijuana on the side of the road.

The detective testified that at 11:46 p.m. on July 9, 2003, defendant gave a tape-recorded statement. Defendant stated that Crystal had called her residence earlier that morning and spoken to Falgout, telling him that she could not awaken T.J.J. Although defendant explained that she was not alarmed because Crystal and T.J.J. normally slept late, she nevertheless stated that she advised Crystal to call 911. Around 4:00 p.m., after running some errands, defendant went by the apartment to check on Crystal and T.J.J. and to retrieve her DVD player. When defendant entered the unlocked apartment, Crystal was sleeping and T.J.J. was unconscious. Defendant opened T.J.J.’s eyelids and noted his pupils were dilated. She performed CPR on T.J.J. and placed him in a tub of water, hoping to revive him. Crystal did not want defendant to call 911 because she did not want to be evicted from the apartment. Defendant called Falgout to assist her. They attempted to induce vomiting and continued putting water on T.J.J. Defendant then decided to take T.J.J. to the hospital and contacted his father.

In the tape-recorded statement, defendant also stated that she went back to the apartment to retrieve the drugs because she did not want T.J.J. or anyone on the property to be penalized for possessing them. She speculated that the methadone T.J.J. had taken could have come from an acquaintance who had been in a motorcycle accident.

Defendant confirmed to Detective Rosh-to that she was taking methadone for chronic pain management based on a prescription from a Dr. Eliosoff. She | ^indicated that her dosage was ten milligrams. She told Detective Roshto that she had noticed that six of her pills were missing and suggested that T.J.J. could have stolen them from her when he and Crystal had stayed with her for a couple of days.

Detective Roshto believed that defendant and Falgout were “doctor shopping,” i.e., seeing multiple doctors at the same time in order to get prescription pain medication. His investigation also established that defendant was not receiving methadone from more than one doctor at a time and that according to defendant’s doctors, she suffers from chronic pain.

Crystal testified that she was with T. J.J. at the time of his overdose. On July 8, 2003, near noon, Crystal observed T.J.J. acquire two methadone pills while they were at defendant’s residence. Defendant asked T.J.J. whether he wanted to purchase methadone pills for five dollars a pill. Crystal specifically observed defendant place two methadone pills in T.J.J.’s hand. She did not see him give defendant the ten dollars in exchange, but T.J.J. told Crystal that he had. Crystal and T.J.J. went back their apartment, where she took one pill and he took the other.

11Later that day, they returned to defendant’s home, where Crystal, T.J.J., and defendant’s son, Ian, smoked marijuana. Around 3:30 p.m., Crystal and T.J.J. purchased four more methadone pills. According to her trial testimony, Crystal was not sure whether she entered the trailer when the second transaction took place, but she was certain that T.J.J. and Ian had. During an audiotaped interview with Detective Roshto on July 10, 2003, Crystal had stated that she waited in the vehicle while the second drug transaction took place. She also told Detective Roshto that she and T.J.J. had paid twenty dollars to Falgout, who had given the money to defendant, and then defendant gave them the pills. But at trial, Crystal acknowledged that she did not actually see any part of the second transaction, indicating that portion of her audiotaped statement had been based on information that had been told to her by T.J.J.

According to Crystal’s trial testimony, after T.J.J. purchased the pills, they went back to the apartment. She was not sure whether Justin was with them at the time, but she was certain that Ian was. Crystal and T.J.J. consumed two of the four pills, taking a portion by mouth and inhaling the rest. The next thing Crystal recalled was waking up briefly the following morning and going back to sleep without noticing anything unusual. But that afternoon when she woke up, T.J.J.’s lips were purple. She tried to wake him up but could not. T.J.J. was making sounds from his lungs. She tried to give him mouth-to-mouth resuscitation and turned him over; T.J.J. vomited. Because she had seen defendant help Falgout before when he was in a condition similar to T.J.J.’s, Crystal called defendant. She did not call 911 because she was afraid.

12After she and defendant had taken T.J.J. to the hospital, while standing near the emergency room entrance, defendant told Crystal that she should “tell [T.J.J.’s father] that [she] didn’t know what happened, that somebody must have slipped him something in his drink.” Crystal did not.

Justin testified for the defense, indicating that he had known T.J.J. for about two years. He described that the victim liked to “get loaded” and often consumed alcohol and pills like xanbars, somas, lortabs, and methadone. He had witnessed T.J.J. inhale a small white methadone pill the night before he was hospitalized but did not know from where it had come. Justin recalled having been with T.J.J., Crystal, and Ian all day on July 8th and accompanying them during the second trip to defendant’s residence. When they arrived, T.J.J. indicated that he needed to talk to Falgout. Justin saw Falgout with a “handful of pills,” but defendant was not present at that time, and he did not see any exchange of money for pills. He was with T.J.J., Crystal, and Ian when they drove back to the apartment. Crystal and T.J.J. argued about money. T.J.J. had money when they went to defendant’s residence but did not have any on the way home; T.J.J. had no pills on the way to defendant’s residence but had some on the way back. Subsequently, he watched T.J.J. crush some of the pills and as T.J.J. and Crystal snorted them. Later that evening, T.J.J. and Crystal took Justin and Ian back to defendant’s residence. The next day, Justin and Ian returned to the apartment with defendant and helped in the attempts to revive T.J.J.

Ian testified on his mother’s behalf, indicating that Falgout had given and consumed drugs with him in past. He stated that defendant had never given him drugs and that his mother did not know that Falgout had given him drugs. But Ian 13admitted that he and defendant occasionally smoked marijuana together. He knew that on occasion Falgout had paid T.J.J. with drugs instead of money for work T.J.J. had done for him. At the time of the second drug transaction, Ian remained in the vehicle with Crystal. He saw his mother talk to Crystal and noticed that she had given Crystal “something.” But because he was listening to the radio, Ian could not hear the conversation between Crystal and his mother. He thought that his mother had taken the pills away from T.J.J. and given them to Crystal because she did not want the victim to take them. Later that night, he watched as T.J.J. and Crystal consumed the drugs. He also was present at the apartment the next day during the efforts to revive T.J.J.

During her trial testimony, defendant indicated that on the evening of July 8, 2003, Falgout had sold T.J.J. four ten-milligram methadone pills that belonged to her. She did not know about or agree with the transaction. Falgout had been abusive during their relationship and because she was afraid of him, she allowed the transaction to take place. Falgout consumed and sold a lot of his medication, and, therefore, she shared her medication with him.

After Falgout gave the pills to T.J.J., defendant told T.J.J. to give them to her, indicating she wanted to talk to Crystal whom she thought would not approve of the transaction. She then gave the pills to Crystal, believing that Crystal would not allow T.J.J. to consume them.

Defendant admitted that she had lied during her statement to the police when she told them that she had discarded the contents of the cigar box, explaining she had been afraid and did not have an attorney present. In court, she said that she had actually placed the remaining pills back into her pill bottle. •

14Defendant denied having sold two methadone pills to T.J.J. prior to Falgout’s sale of four pills. She admitted that she allowed her son and other minors to “do drugs” in her home reasoning that it was a safe place and suggesting that the other parents were aware of the drug use. Falgout financially supported the household with the money that he made from drug sales. When asked whether she had distributed four ten-milligram methadone pills, defendant admitted, “I distributed — I gave [Crystal] what [Falgout] sold [to the victim]. Yes, sir.”

When Crystal first called defendant the next day, she told her to call 911, stating that it had not occurred to her that T.J.J. had consumed the methadone pills. She then ran errands. Defendant admitted that she had asked Crystal to lie, stating, “I asked her to tell them that maybe someone had slipped something into his drink only because Crystal had partaked (sic) in this, and I had partaked in this, and [Falg-out] had partaked in this.” Defendant added that she loved T.J.J. and did not want him to get into trouble. She did not know or understand why Crystal had implicated her since Falgout was the one who had actually sold the drugs.

Based on this testimony, the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant distributed and dispensed methadone to T.J.J., and that he ingested it. The jury was required to consider the veracity of the testimony and give it the weight it deemed appropriate. And it was free to accept in whole or part the testimony of any witness. Apparently, the jury found Crystal a credible witness, which was within its province. Crystal testified that she witnessed defendant deliver to T.J.J. two pills. This testimony establishes that defendant distributed methadone to the victim. Crystal also testified that she and 15T.J.J. each took one of the two pills, thereby establishing that T.J.J. ingested the methadone. Because Crystal’s testimony alone is sufficient to support the first two elements necessary to uphold a conviction under La. R.S. 14:30.1, whether Crystal was present and actually witnessed the second transaction is of no moment. Moreover, although her testimony is not in conformity with Crystal’s on the particulars, defendant admitted knowledge of and involvement in the second methadone sale. The jury was free to reject defendant’s claim that she had not sold any pills to T.J.J. and had merely given the four pills that Falgout had sold to him in the second sale to Crystal rather than to T.J.J. And while defendant complains that the criminal investigation was faulty in that it failed to include statements by Justin and Ian, the jury was privy to that testimony and apparently found it insufficient to establish defendant’s innocence. Accordingly, the evidence supports beyond a reasonable doubt the jury’s conclusions that defendant distributed methadone to T.J.J. and that he ingested the illicit drugs.

We turn now to defendant’s challenge of the. sufficiency of the evidence insofar as it establishes that the direct cause of T.J.J.’s death was the ingestion of the methadone she had distributed to him. The record discloses the following relevant evidence.

Dr. James Robinson, who treated T.J.J. during his hospitalization, was called as a witness for the defense. Dr. Robinson explained that a measurement for the level of benzodiazepine in the T.J.J.’s system at the time of his hospitalization was not requested because it would not have influenced T.J.J.’s treatment. According to Dr. Robinson T.J.J. died as a result of a hypoxic brain injury, which caused his brain to starve from lack of oxygen. The ingestion of 16methadone along with any other drugs that T.J.J. may have taken could have caused acute respiratory depression and resulted in the hypoxic brain injury. He explained that, in general, all narcotics have the ability to suppress the body’s inherent drive to breathe. If the levels become low enough, the brain suffers a hypoxic injury. Eventually, the damage is irreparable. Dr. Robinson opined that the hypoxic injury could have also been caused when T.J.J. vomited. He explained that a person whose level of consciousness is sufficiently depressed will not protect his own airway and when vomiting could then inhale the vomitus into his larynx, airway, and lungs causing a hypoxic injury. Dr. Robinson agreed that methadone was a nausea-producing drug that sedates those who ingest it and causes the vomiting that could have resulted in the hypoxic brain injury. He also acknowledged that the hypoxic injury was traced to the ingestion of methadone whether it was a result of an acute respiratory depression or vomiting.

Defense witness Dr. William George, a toxicologist at Tulane Medical Hospital, testified that based on the medical information available, he could not determine whether methadone alone was the direct cause of T.J.J.’s death. He explained that the benozodiazepine found in T.J.J.’s body was also unlikely to have been a direct cause of death. But the combination of the two drugs causes people to die and in this case the presence of the methadone cannot be separated from the presence of the benozodiazepine. He stated that methadone was clearly a component in causing T.J.J.’s death, emphasizing that it was the combination of the drugs that gave rise to his death. Dr. George agreed with Dr. Robinson that aspirated vomitus was a possible cause of death. He stated that the combination of ingesting methadone and benzodiazepines led to central nervous system and 17respiratory depression which, alone or in combination with aspiration, was the actual cause of death. Dr. George agreed that the ingestion of methadone causes vomiting and, like Dr. Robinson, acknowledged that the ingestion of methadone was a mechanism of T.J.J.’s death whether it was a result of an acute respiratory depression or vomiting.

Dr. Michael Defatta, the chief deputy coroner and forensic pathologist for St. Tammany Parish, testified that an autopsy was not performed on T.J.J. because his medical records were sufficient to determine the cause of death. Dr. Defatta explained that respiratory suppression/depression occurs when particular drugs block receptors in the brain that tell the body to breathe. Methadone is a very potent synthetic opiate that binds to the receptors in the central nervous system and blocks the action of those receptors. Benzodiazepines are in the sedative hypnotic class and are used to treat anxiety. They also serve as a central nervous system depressant, meaning they will block receptors in the brain and inhibit those receptors from acting properly. Dr. De-fatta confirmed that in this case, the intake of the methadone and benzodiazepine was the direct cause of the T.J.J.’s death. Dr. Defatta believed that an earlier intervention may have saved his life.

Based on the medical testimony, we find the evidence was sufficient to convince a rational trier of fact that the methadone was the direct cause of T.J.J.’s death. All three medical experts agreed that whether T.J.J. died as a result of respiratory suppression from ingesting the combination of drugs or from vomiting, which may have been caused by either or both drugs, it was the presence of methadone and benzo-diazepines that gave rise to the hypoxic brain injury that ultimately caused his death.

18Defendant intimates that in order to be a direct cause of death, the presence of the methadone would have had to have been the only drug that gave to the hypoxic brain injury. We disagree.

Defendant has cited, and we have found, no jurisprudence to support a finding that the direct cause required to be proven under La. R.S. 14:30.1 A(3) must be the only cause of the death of the recipient who ingested or consumed the controlled dangerous substance. The evidence established that the ingestion of the methadone T.J.J. obtained from defendant set in motion the train of events which brought about T.J.J.’s death. But for the ingestion of the methadone that defendant distributed to T.J.J., he would not have died. That the methadone acted in concert with the benzodiazepine in his body does not eliminate its effect in directly causing T.J.J.’s death. See State v. Jones, 598 So.2d 511, 514 (La.App. 1st Cir.1992) (finding that it is not essential that the act of the defendant should have been the sole cause of the victim’s death; if the act hastened the termination of life, or contributed to the victim’s death, in a degree sufficient to be a clearly contributing cause, the defendant’s act constituted the “legal cause” of death). Thus, the medical testimony is evidence beyond a reasonable doubt that supports the jury’s conclusion that T.J.J. died as a direct cause of ingesting the methadone defendant distributed to him.

Accordingly, we find the evidence was sufficient to convince a rationale trier of fact that all the elements of La. R.S. 14:31.1 A(3) were proven beyond a reasonable doubt. This assignment of error lacks merit.

19EXCESSIVENESS OF SENTENCE

Defendant avers that imposition of life at hard labor imposed by the trial court is excessive. Maintaining that the evidence fails to establish the methadone was the direct cause of T.J.J.’s death, she asserts that, at most, her minimal role amounts to negligence. She points out that co-defendant, Chad Falgout, was more culpable and, after pleading guilty to manslaughter, received only a fifteen-year sentence. She also claims that the trial court failed to consider her attempts to mitigate Falgout’s actions by taking the methadone from T.J.J. and giving it to Crystal.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may fall within statutory limits, it may nevertheless violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. State v. Reed, 409 So.2d 266, 267 (La.1982). A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So.2d 475, 478 (La.1982). State v. Felder, 2000-2887, p. 11 (La.App. 1st Cir.9/28/01), 809 So.2d 360, 370, writ denied, 2001-3027 (La.10/25/02), 827 So.2d 1173; see also State v. Savario, 97-2614, p. 8 (La.App. 1st 2oCir.11/6/98), 721 So.2d 1084, 1089, writ denied, 98-3032 (La.4/1/99), 741 So.2d 1280.

Under La. R.S. 14:30.1 B, a person convicted of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Courts are charged with applying a statutorily-mandated punishment unless it is unconstitutional. State v. Dorthey, 623 So.2d 1276, 1278 (La.1993). Indeed, it is incumbent on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional by “clearly and convincingly” showing that she is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Henderson, 99-1945, p. 19 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 760, writ denied, 2000-2223 (La.6/15/01), 793 So.2d 1235.

The Code of Criminal Procedure sets forth, in Article 894.1, items that must be considered by the trial court before imposing sentence. Generally, the trial court need not recite the entire checklist of factors, but the record must reflect that it adequately considered the guidelines. State v. Shipp, 98-2670, p. 6 (La.App. 1st Cir.9/24/99), 754 So.2d 1068, 1072. The failure to articulate reasons for the sentence as set forth in Article 894.1 when imposing a mandatory life sentence is not an error. Articulating reasons or factors would be an exercise in futility since the court has no discretion. Felder, 2000-2887 at p. 13, 809 So.2d at 371.

In this case, we find that defendant failed to rebut the presumption that her mandatory life sentence for her second degree murder conviction is constitutional. 21We find the record adequately justifies the trial court’s refusal to deviate from the legislative mandate. The evidence indicates that defendant — alone or as a principal — intentionally distributed drugs to the minor victim. Although she characterizes her role in the distribution of methadone to T.J.J. as “minimal,” mindful of her active involvement in teenage illicit drug abuse within her home and given her almost familial connexity with Crystal, defendant’s position of trust factored into the ease with which these minors obtained the methadone.

Nothing in the law requires a sentencing judge to treat co-defendants equally. All defendants are to be afforded the same sentencing consideration, but no particular results are compelled. State v. Sylvas, 558 So.2d 1192, 1202 (La.App. 1st Cir.1990). Results are measured only against the requirement that sentences not be excessive. State v. Day, 414 So.2d 349, 352 (La.1982). Sentencing disparity among co-defendants is only a factor to be considered along with other appropriate considerations, when there is no reasonable basis in the record for the disparity. State v. Quimby, 419 So.2d 951, 962 (La.1982). Moreover, sentencing disparities are inherent in a system where punishment is tailored to fit the defendant and the crime. Day, 414 So.2d at 352. That Falgout, who pled guilty and avoided a trial before a jury, received a more favorable sentence for his involvement in T.J.J.’s death does not diminish defendant’s role in T.J.J.’s death. As Ian’s mother and Crystal’s so-called aunt, the record supports a finding that defendant was the source of contact for the illicit drug transaction.

Although defendant claims that her action of giving the four methadone pills to Crystal instead of T.J.J. has a mitigating effect that the trial court overlooked in imposing sentence, Crystal denied the veracity of the statement. 22Moreover, any mitigating affect created by a finding that she had taken the four methadone pills from the victim was offset by her admission that she gave them to another minor.

Defendant has failed to establish that the circumstances of her case are so exceptional that she is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. This assignment of error lacks merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant maintains that she received ineffective assistance of counsel, contending that trial counsel failed to effectively cross-examine the State’s witnesses and to adequately prepare the defense experts for trial testimony. She notes that her counsel did not ask any questions on cross-examination at the March 31, 2005 hearing on the State’s first supplemental notice of intent to introduce evidence of other crimes under La. C.E. art. 404 B. She also asserts that her counsel failed to provide defense witness Dr. George with relevant documentation and to check Dr. George’s calculations for accuracy, noting that Dr. George’s estimation of the level of methadone ingestion was based on the incorrect assumption that TJ.J.’s blood was drawn one day, as opposed to two days, following his ingestion.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established a two-fold test to evaluate claims of ineffective assistance of counsel. First, the defendant must show that counsel committed errors so serious that he or she was not functioning as the “counsel” guaranteed a defendant by the Sixth Amendment. Second, the defendant must show that the errors were so 23serious as to deprive him of a fair trial, one with a reliable result. Strickland, 466 U.S. at 686-88, 104 S.Ct. at 2064. Defendant must make both showings in order to prove that counsel was so ineffective as to require reversal of the conviction.

A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief where a full evidentiary hearing may be conducted. Only where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, may it be addressed in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La.App. 1st Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132. The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. See State v. Martin, 607 So.2d 775, 788 (La.App. 1st Cir.1992).

At the hearing on the admission of evidence of other crimes, the State called one witness. Defendant’s counsel did not question the State witness or present argument on behalf of his client. Defendant’s allegation- of ineffectiveness, challenging her counsel’s decision to not question the State witness during the hearing, constitutes an attack upon a strategy decision made by trial counsel for which evidence is not contained in this record. Likewise, the allegation that counsel failed to provide adequate documentation to defense witness Dr. George is one that would require an evidentiary hearing to resolve. Accordingly, we find 24that defendant’s claims of ineffectiveness are not subject to appellate review in this appeal.

REVIEW FOR ERROR

Defendant requests a review of the record for “patent” errors. Under La.C.Cr.P. art. 920(2), our review is limited to discovery of structural defects in the proceedings, which are apparent by a mere inspection of the pleadings and without an evaluation of the evidence. Trial errors that do not constitute structural defects are subject to the harmless error analysis. See State v. Thomas, 2005-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per cu-riam); see also State v. Jones, 2005-0226, pp. 3-4 (La.2/22/06), 922 So.2d 508, 511-12. After a careful review of the record in these proceedings, we have found no reversible errors.

DECREE

For all these reasons, we affirm the conviction and sentence of defendant, Jeanie M. Hano.

CONVICTION AND SENTENCE AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

1I dissent from the majority opinion in this matter. Louisiana Revised Statute 14:30.1 A(3), in defining second-degree murder, requires that the controlled dangerous substance classified in schedule I or II be the direct cause of the death of the recipient who ingested or consumed the substance. The medical evidence in record before us simply shows that the methadone provided by the defendant was one of several drugs in the victim’s system that contributed to his death. Thus, the State did not meet its burden of proving beyond a reasonable doubt that the methadone provided by the defendant was the direct cause of the victim’s death. Therefore, I respectfully dissent.

      . Although defendant was originally indicted along with co-defendant, Chad Falgout, his case was severed by the State.

      . In accordance with La. R.S. 46:1844 W, we refer to this minor victim only by his initials.

      .Since the time Crystal was an infant, she had lived with defendant periodically and, although they were not related, had referred to defendant as "Aunt Jeanie.”

      . See generally La. C.E. art. 404 B and State v. Prieur, 277 So.2d 126 (La.1973) (requiring the State to furnish defendant with a statement fn writing of the criminal acts or offenses it intends to offer in evidence, specifying the exception to the general exclusionary rule upon which it relies for admissibility).

      . According to the record, Ian was nearly twelve years old at the time of the offense and fourteen at the time of trial. At trial Justin did not testify as to his age, although he indicated that he was in the ninth grade.

      . The jury was instructed that second degree murder included the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm as set forth in La. R.S. 14:30.1 A(l). But the record is devoid of any evidence from which the jury could have inferred that defendant had the specific intent to kill or to inflict great bodily harm to the victim. Thus, the sole basis of the jury's verdict finding defendant guilty of second degree murder is under La. R.S. 14:30.1 A(3).

      . Pharmaceutical records confirmed that defendant had two other physicians whom she had not mentioned during her recorded interview: Dr. Pfingsten and Dr. McNulty. Pharmaceutical records confirmed that Falgout had been filling prescriptions written by a Dr. Jarrott. Between August 2002 and April 2003, defendant filled prescriptions from Dr. McNulty for carisoprodol, alprazolam, hydro-codone, prednisone, and nortriptyline. From April 2003 to July 2003, defendant filled prescriptions for methadone (ten-milligram pills), carisoprodol, and clonazepam (three prescriptions from Dr. McNulty, ten prescriptions from Dr. Eliosoff, and three prescriptions from Dr. Pfingsten). The specific dates of the methadone prescriptions are April 30, 2003, May 30, 2003, and June 30, 2003. Each methadone prescription was for 120 (ten milligram) pills. In May of 2003, defendant was seeing Dr. Bey, who was filling prescriptions for clonazepam, carisoprodol, and hydrocodone. Also in May of 2003, Dr. Eliosoff noted in defendant’s medical records, "chronic pain syndrome and possible drug abuse” by defendant. Falgout had filled prescriptions for soma, lortab, xanax, clonazep-am, carisoprodol, hydrocodone, and methadone (40 milligram diskette wafers).

      . Having occurred prior to severance of his trial with that of defendant, counsel for Falg-out cross-examined the State witness and presented argument to the trial court.

      . In order to receive an evidentiary hearing, defendant otherwise must satisfy the requirements of La.C.Cr.P. arts. 924-930.8, and, thus, we express no ruling on defendant's entitlement to such a hearing.


source: Caselaw Access Project

author: DOWNING, J. GAIDRY, J.,

license: Public Domain

text:
    In the Matter of the SUCCESSION OF Arvie L. MORGAN, Jr.
    No. 2005 CA 1725.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Dennis J. Hauge, Prairieville, Counsel for Plaintiff/Appellee Billie Nettles.
    Ashley B. Rogers, Ricky L. Babin, Gonzales, Counsel for Defendants/Appellee Billie Nettles, Lucy Mendoza, & Patricia Morgan.
    Jess J. Waguespack, Napoleonville, Alyce B. Landry, Prairieville, Counsels for Defendant/Appellant Debra Hollier.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

2At issue in this appeal is whether the trial court erred when it entered judgment giving effect to legacies left to witnesses where the testament was probated in notarial form but was given effect in its olographic form. For the following reasons, we conclude the trial court did not err, and we affirm the judgment.

FACTS

The decedent, Arvie L. Morgan, left a will that the trial court found to be valid in both notarial and olographic form. The will was first probated as a notarial will. Two of his named legatees were his sisters, Billie Ruth Nettles and Patricia Morgan. These two sisters also signed as witnesses to the will.

The sisters filed a motion to amend the probate proceedings asking that the will be probated as an olographic will. At a trial on the matter, the trial court denied the motion for leave to amend but ruled against decedent’s daughter, Debra Hollier, in her capacity as dative testamentary executrix: the trial court entered judgment ordering “that the legacies made by the testator to Billie Nettles and Patricia Morgan be given full effect in accordance with the testator’s intent as expressed in olographic form.” (Emphasis added.)

Ms. Hollier, in her capacity as dative testamentary executrix, appeals asserting that “[t]he trial court acted in direct contravention of express law in allowing witnesses to a notarial testament to receive as legatees under the testament.”

DISCUSSION

Ms. Hollier argues that the sisters are precluded from inheriting under the provisions of La. C.C. art. 1582, which provides:

3The fact that a witness or the notary is a legatee does not invalidate the testament. A legacy to a witness or the notary is invalid, but if the witness would be an heir in intestacy, the witness may receive the lesser of his intestate share or the legacy in the testament.

The law is long settled that the existence of subscribing witnesses to the olographic will not affect in any way its validity. These signatures are “mere surplusage, and to be disregarded.” Jones v. Kyle, 168 La. 728, 732, 123 So. 306, 307 (La.1929), citing Heirs of Andrews v. Andrews’ Executor, 12 Mart. (O.S.) 713 (1823). See also Aubrey & Rau, Testamentary Successions & Gratuitous Donations, 3 Civil Law Translations § 664, no. 6, p. 128 (1969), which contains the following:

The use of needless or superfluous formalities does not vitiate testaments otherwise regular in form. This is so even where these formalities could not, had they been deemed necessary, be consider as validly complied with. Thus, for example, the assistance of a number of witnesses greater than the number required by law does not vitiate the testament, which remains valid notwithstanding the incapacity of some of them, when, omission made of the incapable witnesses, there remain a sufficient number of them who are capable. (Footnotes omitted.)

Thus it appears in the matter before us that we are to disregard the surplus signatures of the witnesses.

Prior to 1986, Louisiana Civil Code arts. 1592 and 1595 together provided that the entire testament was null and void if it was witnessed by an heir or legatee. La.C.C. art. 1582, Revision Comments — 1997, Comment (b); Estate of Wartelle, 428 So.2d 1300, 1301-02 (La.App. 3 Cir.1983). See also Evans v. Evans, 410 So.2d 729, 732 (La.1982). “The harshness of that result was mitigated in 1986 when Article 1592 (1870) was revised by 4Act No. 709 to permit the testament to be upheld and merely deprive the witness of the legacy.” La. C.C. art. 1582, Revision Comments— 1997, Comment (b).

In Wartelle, the court considered the fate of an entire statutory testament in which a legatee was also a witness, but one whose signature was not necessary to maintain the validity of a statutory will. Wartelle was decided under the harsh former provisions requiring that the entire testament be voided if a legatee signed as a witness. The appellate court upheld the validity of a statutory testament, affirming the holding of the trial court that the signature of a third witness, who was a legatee, was mere surplusage. Id. at 1301, 1303.

Reviewing the matter under the old code articles, the Third Circuit declined to address “what should become of the incompetent witness’ legacy under the result reached” because the parties did not raise the issue. Id. at 1303. However, if a surplus signature is disregarded such that an entire will retains its validity against the harsh provisions of La. C.C. arts. 1592 and 1595, we see little distinction that would cause us to reach a different result under the current article when applied to a legacy with witnesses whose signatures are surplus.

The Third Circuit was fortified, as are we here, by the fact that there was no suggestion of fraud. Id. at 1303. And we note the protections provided by La. C.C. arts. 1478, 1479 and 1480, which deal with nullity of donations due to fraud, duress or undue influence. Were any of these alleged and proven, the other heirs or legatees would have recourse.

5Accordingly, we conclude that the trial court did not err when it ordered that the legacies to Billie Ruth Nettles and Patricia Morgan be given full effect in olographic form. We will affirm the judgment of the trial court. Ms. Hollier’s assignment of error is without merit.

DECREE

We affirm the judgment of the trial court. Costs are assessed to Debra Holder in her capacity as dative testamentary executrix.

AFFIRMED.

CARTER, J., concurs.

GAIDRY, J., dissents with reasons.

GAIDRY, J.,

dissenting.

1I must respectfully dissent from the majority opinion, as I believe the result is incorrect on a procedural basis. The proper solution, given the facts available to us, would be to vacate the trial court’s judgment on the grounds (1) that the record before us does not contain the supporting evidence and testimony sufficient for probate of an olographic testament and (2) that the trial court erred in originally ordering the testament admitted to probate as a statutory testament and in further ruling that it was both a valid statutory testament and a valid olographic testament.

The testament at issue was prepared prior to the effective date (July 1, 1999) of present La. C.C. arts. 1576 and 1577, but the requirements of the present notarial testament are the same as those of the statutory testament under former La. R.S. 9:2442(B)(2). The testament is obviously not in proper form for a statutory testament; the attestation clause is deficient because the notary did not attest to the testator’s signature on May 1, 1999, when the testament was executed. It appears the testament was presented to the notary on May 10, 1999, who simply added a handwritten subscription, “Sworn to and subscribed before me [etc.]” and her signa-toe on a separate page. Thus, the testament is absolutely null on its face under La. C.C. art. 1573, insofar as it purports to be a statutory testament.

2Inasmuch as a statutory testament need not be probated, the judgment of April 9, 2001, ordering the testament to be “proved,” is certainly not a final and definitive judgment. The appellees may still bring an action to annul the testament under La. C.C.P. art. 2931 and La. C.C. art. 3497, but as the testament is an absolute nullity, I question the enforceability of the April 9, 2001 judgment. The judgment of possession was properly annulled on February 14, 2002, on the appellant’s petition, which addressed the deficiency in form of the purported statutory testament. That judgment ordered the succession be “completed forthwith and in accordance with law.”

I agree that the testament may very well be a valid olographic testament, and if so, the testator’s intent should govern the disposition of his property. Under the authority bestowed upon us under La. C.C.P. art. 2164, we may effectuate the trial court’s judgment ordering the succession completed “in accordance with law” by vacating the judgment appealed and remanding this matter for further proceedings, reserving to the appellees the right to petition the trial court to probate the testament as an olographic testament pursuant to La. C.C.P. art. 2893. See Succession of Burke, 365 So.2d 858, 860 (La.App. 4th Cir.1978). Failing such action, the succession should be completed as an intestate succession.

      . Former La. C.C. arts. 1592 and 1595 provided as follows:
      Art. 1592. Heirs and legatees excluded as witnesses
      Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be. Art. 1595. Testamentary formalities essential

        The formalities, to which testaments are subject by the provisions of the present section, must be observed; otherwise the testaments are null and void.

      . Louisiana Civil Code arts. 1478, 1479 and 1480 provide as follows:
      Art. 1478. Nullity of donation procured by fraud or duress
      A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of fraud or duress.
      Art. 1479. Nullity of donation procured through undue influence
      A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.
      Art. 1480. Nullity due to fraud, duress, or undue influence; severability of valid provision
      When a donation inter vivos or mortis causa is declared null because of undue influence or because of fraud or duress, it is not necessary that the entire act of donation or testament be nullified. If any provision contained in it is not the product of such means, that provision shall be given effect, unless it is otherwise invalid.


author: DOWNING, J.

text:
    SINCLAIR PROPERTIES, L.L.C. and Manogarie Padayachee, Tastett v. America and Alex LEYTON.
    No. 2005 CA 1703.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Vincent F. Wynne, Jr., Covington, Counsel for Plaintiffs/Appellees Sinclair Properties, Inc. and Cayman and Callan Sinclair.
    Marti Tessier, Mandeville, Counsel for Defendants/Appellants Alejandro and America Leyton.
    George L. Gibbs, Metairie, Counsel for Third Party Defendant/Appellee Winters Title Agency, Inc.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

|2On July 24, 2002, Alejandro and America Leyton entered into an agreement with Sinclair Properties, L.L.C. (Sinclair) entitled “LEASE WITH OPTION TO PURCHASE” (the agreement). The Leytons allegedly failed to make the payments required under the agreement, and Sinclair commenced eviction proceedings against the Leytons in the Fourth Ward Court in St. Tammany Parish. The justice of the peace eventually transferred the matter to the 22nd Judicial District Court after the Leytons filed a compulsory re-conventional demand that exceeded the ward court’s jurisdiction.

Although various pleadings were filed in the district court, the only pleading presently of concern to this court is the second supplemental and amending petition filed by Sinclair on February 3, 2005. In addition to requesting that its name be changed in the suit, Sinclair sought a declaratory judgment determining the nature of the contract between the parties. The petition also improperly requested that the issue of the declaratory judgment be set for contradictory hearing. The district court granted Sinclair permission to file this amended petition on February 9, 2005, and scheduled the contradictory hearing on the declaratory judgment issue for February 28, 2005.

On that date, the district court conducted the hearing, at which counsel for the defendants did not appear. In addition, the Leytons had not filed any response to the petition prior to the hearing. The district court allowed Sinclair to introduce testimony and a portion of the contract into the record. The court then rendered | ¡¿judgment in favor of Sinclair, finding that the agreement was a lease with an option to purchase. The court declined to sign the judgment at that time, because there was no return in the record indicating that the defendants had been served. However, on March 15, 2005, the district court signed a judgment in accordance with its ruling at the hearing on February 28, 2005, after apparently determining that the defendants had been properly served. It is from this judgment that the Leytons have appealed.

On appeal, the Leytons primarily challenge the trial court’s classification of the agreement as a lease with an option to purchase, contending that the agreement should be designated as a bond for deed contract. We do not reach this issue, however. As a preliminary matter, we note that issue is not joined between a plaintiff and a defendant until the defendant files an answer to the plaintiffs petition, or until the plaintiff obtains a valid preliminary default against the defendant. No valid judgment may be rendered against a party with whom issue has not been joined by way of answer, default, or waiver. Malbrough v. Wheat, 428 So.2d 1110, 1112 (La.App. 1 Cir.1983).

The record in this case indicates that issue was never joined between the Ley-tons and Sinclair with regard to the allegations of the second amending petition, because the Leytons had not filed any response to Sinclair’s second amending petition prior to the hearing on the declaratory judgment issue. Furthermore, there is no evidence in the record that a valid preliminary default had been obtained against the Leytons prior to the hearing at which the judgment was rendered. These facts are error patent on the face of the record. Therefore, the judgment of the trial court is clearly wrong. Malbrough, 428 So.2d at 1112-1113. We hereby vacate the judgment of the district court and remand the matter for 1¿further proceedings consistent with this opinion. All costs of this appeal are assessed to Sinclair Properties, Inc.

VACATED AND REMANDED.

      . Alejandro Leyton’s name is spelled various ways throughout the record. We have chosen to use the name as it is spelled in tire contract and in the judgment appealed from.

      . Another plaintiff, Manogarie Padayachee-Tastet, joined in this petition. In addition, Cayman and Callan Sinclair were ultimately added as parties to the matter. These parties are not involved in the issue presently before this court.

      .Sinclair originally filed suit in the name of Sinclair Properties, L.L.C. In this petition, it sought to correct its name to Sinclair Properties, Inc.

      .We note that a suit for declaratory judgment is an ordinary, not a summary proceeding. Accordingly, the procedures for a trial in an ordinary proceeding apply. Bergen Brunswig Drug Co. v. Poulin, 93-1945, p. 5 (La.App. 1 Cir. 6/24/94), 639 So.2d 453, 456. Therefore, the trial court erred in disposing of the matter as a summary proceeding.

      . The record indicates that the complete contract was not entered into the record at the hearing.

      . The Leytons initially requested supervisory writs; however, this court determined that the trial court's judgment was a final, appeal-able judgment. This court then remanded the matter to the trial court with instructions to grant the Leytons an appeal. Sinclair Proper
        ties v. Leyton, 2005-0654 (La.App. 1 Cir. 5/6/05) (unpublished).

      . This memorandum opinion is issued in compliance with Uniform Rules-Courts of Appeal Rule 2-16.1.B.


author: THOMAS F. DALEY, Judge Ad Hoc.

text:
    WASHINGTON PARISH GOVERNMENT v. TOWN OF FRANKLINTON, et al.
    No. 2005-CA-1640.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Walter P. Reed, District Attorney, Millard K. Gatewood, Assistant District Attorney, Twenty-Second Judicial District, Parish of Washington, Franklinton, Counsel for Appellant.
    Michael J. Tarleton, David I. Bordelon, Ungarino & Eckert L.L.C., Metairie, Counsel for Appellees.
    Panel composed of Ad Hoc Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge Ad Hoc.

[¡¡The plaintiff, Washington Parish Government, has appealed the trial court’s grant of summary judgment in favor of the defendant, Town of Franklinton. For the reasons that follow, we affirm.

FACTS:

Washington Parish Government (WPG); filed suit against the Town of Franklinton (the Town) alleging that on or about October 19-20, 2001, the Town’s sewer lines became blocked and caused an overflow of raw sewerage in the basement of the Parish’s courthouse building. Plaintiff alleged the Town was negligent in failing to monitor the system despite knowledge of increased demand on the sewer lines, failure to warn WPG of the impending overflow, and failing to install devices to prevent this occurrence. The Town answered with a general denial. The Town then filed a Motion for Summary Judgment requesting the suit be dismissed because WPG was responsible for installing and maintaining ajjbackflow valve since it has plumbing fixtures below the street grade. WPG responded that the Town knew or should have known that the four day Washington Parish Fair places an extreme burden on the Town’s sewer system and should have warned WPG of the possibility of backup, and that there are material issues of fact as to the whether the Town’s sewer system was being operated properly and in such a manner as to allow WPG’s mechanical precautions to work as planned. After a hearing on the motion, the trial court ruled in favor of the Town. This timely appeal followed.

LAW AND DISCUSSION:

On appeal WPG argues the trial court erred in determining no genuine issue of material fact exists, that the Town was entitled to judgment as a matter of law, and in failing to apply the provisions of comparative fault. The Town responds that there is no genuine issue of material fact as to whether the Town had actual or constructive notice of the alleged defect, nor did the Town have a duty to warn, or to maintain the backflow valve.

This Court reviews the trial court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. Summary judgment is warranted only if “there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(C)(1). If the moving party will not bear the evidentiary burden at trial, on Motion for Summary Judgment, he must only point out that there is an absence of proof for one or more elements essential to the adverse party’s claim. Id. If the adverse party fails to come forward with sufficient proof that he will be able to carry his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. In ruling on a Motion for Summary Judgment, |4the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, supra.

In its Motion for Summary Judgment, the Town argued that WPG is responsible for installing a backflow valve based on the Town’s Ordinance § 15-72 which provides:

No water closet or other fixtures shall be installed in any basement, cellar or area the top of which closet or fixture is below the level of the natural grade in the streets abutting said property, provided however, a permit will be issued conditioned that the owner or owners take all risk of damage that may result from water settling back into the premises from the main sewers; and in order to prevent as much as possible the settling back of water, the owner is hereby required at his own risk and cost, to put in a self-acting or other valve in all cases where the back flow from the sewer is to be apprehended, and it shall be the duty of the owner to keep said valve in order and he shall be responsible for its action in all cases. This valve must be arranged so as to not to interfere with the operation of the plumbing system above the street level.

There is no dispute that the basement, which flooded in the courthouse, was below street grade, thus this statute requires WPG to install and maintain a backflow valve.

In support of its Motion for Summary Judgment, the Town submitted deposition testimony from several WPG officials and employees, as well as the Mayor of the Town and the Superintendent of Public Works for the Town. Frank Gendusa testified that he had been working for WPG since 1993. He was in charge of maintaining all parish buildings. Mr. Gendusa explained that when water was discovered in the basement of the courthouse, he was called. He immediately called the Town and told them to turn the water off. This did not stop the flow into the basement and it was determined that sewerage and wastewater was entering the basement. A blockage was discovered in the main line of the Town’s sewer system. As soon as the blockage was unstopped, the infiltration in the basement drained. Mr. Gendusa explained that there are two valves intended to |Bprevent the basement from flooding. One valve, known as a backflow valve was placed in the sewer line leaving the courthouse basement. It is located 15 feet underground and has a one-way flap that is designed to allow water to flow only out of the courthouse. When water attempts to flow in the opposite direction, the valve is designed so the flap will stop the flow of water into the courthouse. Mr. Gendusa noted that the plans for the courthouse specify that this valve is to have a clean-out, so it could be cleaned out; however, this was not present. He explained that without the cleanout, it was not possible to determine if the backflow valve was working properly. He opined that had the backflow valve been working properly, the October 2001 flooding would not have occurred. Mr. Gendusa testified that the other valve is a manual valve that was placed in the 1980’s following a flood in the basement due to the high levels of the Bogue Chitto River. He was unaware of the Town Ordinance § 15-72.

WPG president, Mervin Taylor, Jr., testified that his office is responsible for ensuring that all government buildings are in compliance with building codes. President Taylor was unaware of the Town’s Ordinance § 15-72. He opined that the 2001 basement flood was tied to the overload of the Town’s sewer system during the fair.

The Town’s Mayor, Earle Brown, Sr., testified that the Town’s Ordinances are available to the public and every counsel member. Mayor Brown opined that the courthouse flooding was caused by a blockage in the Town’s sewer system and was unrelated to the fair. He stated that the Town’s sewer system is capable of handling the increased flow created by the fair. Although Mayor Brown was not familiar with the specifics of Town Ordinance § 15-72, minutes of a meeting from the August 31, 1961 meeting of the Town’s Mayor and Board of Alderman were attached to the deposition. These minutes state there is a “definite possibility of the basement in the new courthouse being flooded due to the sewer line over | ^flowing during high water stage of the Bogue Chit-to River.” The minutes further state: “The clerk was instructed to send a letter to the Washington Parish Police Jury, with copies to August Perez and Associates and Belcher & Son advising them that the Town would not be responsible for any damage caused by this condition.”

Linwood Corkern, Superintendent of Public Works for the Town, testified that he had worked for the Town for 29 years. Mr. Corkern stated that after the courthouse flooded in 1983, the Town employees installed a manual valve to prevent future flooding. He explained that the installation of this valve was performed by the Town for WPG because WPG did not have the equipment to install the valve. This valve would be used to prevent flooding of the basement from conditions that can be predicted, such as the river rising, not to prevent the backflow of sewerage. He testified that officials with WPG knew that this valve would not automatically shutdown to prevent back flow of sewerage. Mr. Corkern testified that when the manual valve was placed, the backflow valve was visible from the outside, but it was not possible to tell if it was working because there are.moving parts on the inside of the valve. He explained that it is standard construction practice to have a cleanout to access backflow valves. Mr. Corkern testified that he was called when the basement of the courthouse flooded and explained that he cleared the blockage from the sewer line and the basement drained.

Mr. Corkern was aware of the Town’s Ordinance § 15-72 and opined that WPG was aware of the ordinance since the back-flow valve was in place. He further opined that the 2001 flooding of the courthouse basement was due solely to the blockage in the sewer line and was unrelated to the increased volume of sewerage caused by the fair.

17WPG’s Memorandum in Opposition to the Motion for Summary Judgment states that there is a material issue of fact as to whether the Town’s sewer system was being operated properly and in such a manner as to allow WPG’s mechanical precautions to work as planned. WPG argues that the Town either knew or should have known that the four day run of the fair placed a burden on the Town’s sewer system, that the backflow valve at the courthouse may be defective, that the valve installed in 1983 was manual, and that the courthouse is closed during the fair. WPG contends that given these factors, the Town should have exercised reasonable care and warned the courthouse maintenance staff of the potential for sewage overflow during the fair. WPG’s Memorandum in Opposition to the Motion for Summary Judgment was not accompanied by, nor did it cite to any exhibits or testimony to support its assertions.

There is no dispute that had the back-flow valve been working properly, the October 2001 flooding would not have occurred. Ordinance § 15-72 requires the placement of the backflow valve and specifically requires WPG, as the owner of the courthouse building, to maintain a self-acting valve to prevent backflow of sewerage into the basement, which was below the grade of the street. The Town presented sworn testimony that a cleanout for the backflow valve was not installed near the valve when the courthouse was constructed contrary to the plans and specification and that without the cleanout, it was impossible to inspect and maintain the backflow valve. Once this evidence was put forth, WPG was required by Code of Civil Procedure Article 966 to come forward with proof that it would be able to prove that in spite of having the proper valve installed as required by the ordinance, the negligence of the Town caused the flooding. WPG failed to come forward with such proof; rather, it rested on its allegation that the backup of sewerage was caused by the increased demands placed on the Town’s sewer system during the four day fair.

[sThe evidence presented by the Town indicates that WPG had a duty to maintain the backflow valve and failed to do so because it failed to install a cleanout for the backflow valve. The evidence presented by the Town further indicates that the only prior problems with the Town’s sewer system, during the fair, was due to mechanical failure, not due to increased volume, and that the blockage that caused the flooding of the basement was unrelated to the increased volume from the fair. WPG failed to present any countervailing evidence. There are no genuine issues of material fact as to liability of the Town for the flooding of the courthouse basement because WPG by installing sewerage fixtures below the level of the natural grade pursuant to Ordinance § 15-72 assumed the “risk of damage that may result from water settling back into the premises from the main sewers.” Thus, the Town is entitled to judgment as a matter of law. The trial court correctly granted the Town’s Motion for Summary Judgment.

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

AFFIRMED.

      . Town of Franklinton Ordinance § 15-72.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. James TATE, et al.
    No. 2006-K-1006.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 2, 2006.

      Eddie J, Jordan, Jr., District Attorney, Lashanda Webb, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

J^This matter involves a writ application brought by the State of Louisiana. The State has requested this Court to exercise its supervisory jurisdiction to review the district court’s denial of the State’s motion for a continuance of the trial of the defendant, James Tate, who is charged with second-degree murder.

STATEMENT OF THE CASE

On April 14, 2003, a fatal shooting occurred at John McDonough High School during school hours. One student was shot to death on the campus, and at least two other students were injured by the gunfire. Seven people, including Mr. Tate, were indicted in connection with the shootings.

The district court subsequently granted Mr. Tate’s motion to sever his trial from those of the other defendants. A trial date was set for April 13, 2005. Nevertheless, Mr. Tate did not go to trial on that date, because the trial of one of his co-defendants did not end until the day before Mr. Tate’s trial was scheduled to begin. Mr. Tate’s trial was then rescheduled for September 6, 2005. Because of Hurricane Katrina, however, the trial could not be held on that date.

After being closed due to the damage caused by Hurricane Katrina, the Criminal District Court for the Parish of Orleans reopened in January of 2006. At the request of the State, a pretrial conference was set for March 13, 2006, for the | ^purpose of selecting a trial date. A trial date of August 1, 2006, was selected. On March 23, 2006, the State requested that the trial be continued until August 8, 2006, so that the prosecuting attorney could attend the annual conference of the Louisiana District Attorneys Association. The continuance was granted.

On July 21, 2006, and on July 25, 2006, the State appeared before the district court requesting another continuance of the trial. In support of the motion, the prosecuting attorney asserted that the State needed additional time to locate witnesses and to determine the availability of the evidence. The prosecuting attorney also sought the continuance on the grounds that she was the new lead attorney handling the case for the State and had not had sufficient time to familiarize herself with the facts of the case. The district court denied the request for a continuance, and the State is now before us on a supervisory writ application.

DISCUSSION

District Court Reasons for Denial of Continuance

The district court judge denied the continuance requested by the State, because, as she declared in her per curiam opinion dated July 25, 2006, “[t]his Court does not believe that additional time will solve the problems with the District Attorney’s office as it relates to this case!” She enumerated her reasons for denying the continuance. First, she said that the prosecuting attorney who was handling the case had advised the district attorney’s office that she would be leaving her position well in advance of the August 8 trial date and that the district attorney’s office had at least twelve weeks to have another prosecutor prepare for the trial. Additionally, the judge asserted that the district attorney’s office “has made little to no headway in 7 months in locating the essential witnesses needed to try this case.” Finally, she stated that “nor has the office made much progress in determining the availability, for use at trial, of the evidence located in the custody of the Clerk’s office.”

| aWith respect to the evidence, the district court noted that the State’s first motion to inspect the evidence was filed on July 25, 2006, which was a mere two weeks prior to the trial of this major murder case. At the hearing on the motion to continue, the district court also discussed the following:

BY THE COURT:
And here’s the other thing that disturbs me, I sat through numerous, numerous meetings where Judge Lombard on behalf of the Clerk’s Office on numerous occasions asked the District Attorney if there were any cases that were of major importance to him that they would get the evidence together for him.... But shame on Mr. Jordan if Mr. Jordan did not tell Judge Lombard that the ... case was a high priority case.

There is nothing in the record that indicates that Mr. Jordan ever advised Judge Lombard that this case was a high priority case or that Mr. Jordan ever asked Judge Lombard to prepare the evidence in this case.

Standard of Review

In State v. Martin, 93-2085 (La.10/17/94), 645 So.2d 190, 197, the Louisiana Supreme Court stated that “[t]he decision to grant or deny a continuance lies within the wide discretion of the trial court.” (Emphasis added.) In State v. Johnson, 96-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on reh’g), this Court declared that “[t]he decision to grant or deny a motion for continuance rests with the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion.” (Emphasis added.) See also La.C;Cr.P. art. 712, which provides that “[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” Thus, this Court is bound to deny the relief the State seeks in its writ Rapplication if the district court judge did not abuse her discretion in denying the State’s motion for a continuance.

Discretion of the Trial Court

The record in this case reflects that the State is requesting additional time to prepare for trial by getting the necessary witnesses. and evidence. The record also reflects that the district attorney has had ample time to.prepare for the trial. It is clear from the record that essentially the same evidence and witnesses used in the trial of one of Mr. Tate’s co-defendants will be needed for Mr. Tate’s trial. Yet, there is nothing in the record to show that the district attorney has done anything with respect to the witnesses and evidence since the prior trial concluded over a year ago.

The trial court judge had good reason to doubt the ability of the district attorney to prepare for trial even if she were to grant a continuance. For example, some evidence, photographic line-ups, was obtained by the district attorney, but the district attorney did not determine what additional evidence was needed at that time. The district attorney’s failure to advise Judge Lombard that this case was a high priority case makes it appear that the district attorney was unaware that this case was a case in which it was imperative that the remediation of the evidence damaged by Hurricane Katrina be given the highest priority. The district attorney could have requested that Judge Lombard collect the evidence needed for this case, as Judge Lombard had offered to do, but the only evidence that had been obtained just two weeks prior to the trial date was the photographic line-ups.

Additionally, at the hearing on the State’s motion to continue the trial, it was revealed that, as of two weeks prior to the trial date, the district attorney had yet to contact the police department to obtain photographs that may have been in the department’s file that were needed for the trial. Although the homicide detective handling this case may have been unavailable as a result of injuries that he had ^sustained in an accident, the district attorney had not contacted the detective’s ranking officer to confirm this or to ascertain what evidence might have been contained in the detective’s file. Furthermore, none of the State’s witnesses had been contacted other than “indirectly,” and no subpoenas for the witnesses had been issued.

Because this case involved extreme violence, affected school children, and occurred in an educational setting, one would expect this case to be one that was given top priority. Unfortunately, it appears from the district court’s per curiam and the oral decision rendered at the hearing on the State’s motion for a continuance that the district attorney was not according this case the priority that one would expect it to be given.

Because we want to give the State every opportunity to present its evidence in this most serious case, we are reluctant to deny the relief requested by the State in its writ application. Nevertheless, we must. The law requires us to uphold the district court’s decision to deny the continuance absent an abuse of the trial court judge’s discretion. She has given cogent reasons for denying the continuance. She has no faith in the ability of the district attorney’s office to prepare this case for trial and has supported her belief that a continuance in this case will not result in better preparation by the district attorney’s office. Therefore, we must conclude that the trial court judge did not abuse her discretion in denying the State’s motion for a continuance. The State’s writ application is granted, but the requested relief is denied.

WRIT GRANTED; RELIEF DENIED.

      . Judge Edwin A. Lombard, a member of the Louisiana Court of Appeal for the Fourth Circuit, was appointed by the Louisiana Supreme Court to oversee the remediation of evidence damaged as a result of Hurricane Katrina that was stored in the clerk's office in the Orleans Parish Criminal District Court building.