text:
    STATE of Louisiana v. Tyree YOUNG.
    No. 2006 KA 0234.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Walter P. Reed, Covington, Kathryn Landry, Baton Rouge, for Appellee, State of Louisiana.
    Frank Sloan, Mandeville, for Defendant/Appellant, Tyree Young.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

I y.The defendant, Tyree Young, was charged by bill of information with one count of possession of cocaine (count I), a violation of LSA-R.S. 40:967(C), and one count of possession of methylenedioxy-methamphetamine (count II), a violation of LSA-R.S. 40:966(C). He pled not guilty on both counts. He moved to suppress the evidence sought to be used against him as obtained in violation of his constitutional rights, but the motions were denied. Following a jury trial, he was found guilty as charged on both counts. On each count, count I and count II, he was sentenced to five years at hard labor, sentences to run concurrently.

Thereafter, the State filed a habitual offender bill of information alleging, in regard to count II, the defendant was a habitual offender. Predicate # 1 was set forth as the defendant’s March 14, 1997 guilty plea, under Twenty-Second Judicial District Court Docket # 258777, to possession of cocaine. Predicate #2 was set forth as the defendant’s March 14, 1997 guilty plea, under Twenty-Second Judicial District Court Docket # 265856, to possession of stolen things. Predicate # 3 was set forth as the defendant’s October 16, 1997 guilty plea, under Twenty-Second Judicial District Court Docket #274804, to unauthorized entry of an inhabited dwelling. Predicate #4 was set forth as the defendant’s October 16, 1997 guilty plea, under Twenty-Second Judicial District Court Docket #274865, to distribution of cocaine. Predicate #5 was set forth as the defendant’s March 1, 1999 guilty plea, under Twenty-Second Judicial District Court Docket # 296359, to distribution of cocaine.

Following a hearing, the defendant was adjudged a fourth felony habitual offender on count II, the sentence previously imposed on count II was vacated, and he was sentenced to twenty years at hard labor. He now appeals, designating one assignment of error in which he contends “[t]he trial court erred and/or abused its | .-¡discretion in denying the defendant’s motion to suppress the evidence.” We affirm the conviction and sentence on count I, vacate the conviction and habitual offender adjudication and sentence on count II, and remand.

FACTS

Louisiana Probation and Parole Officer Mike Phelps testified at the first hearing on defendant’s motions to suppress and at trial. On July 23, 2003, Officer Lusto and he went to 1495 West Hall Avenue in or near Slidell. The officers were attempting to execute an arrest warrant against Larry Smith for violations of his probation. They had unsuccessfully searched for Smith at his primary address, and Officer Lusto was aware that Smith frequented the West Hall Avenue home, which was his daughter’s residence.

Smith answered the door at the West Hall Avenue home, but then moved back into the home, yelling out that he was being arrested. As the officers stepped into the home to handcuff Smith, they saw a man at the kitchen table and a woman in the living room. The woman in the living room alerted another woman to the presence of the parole officers. The officers became concerned for their safety. They were concerned about the use of weapons against them and were aware that convicted felons often associated with one another. The officers were also aware that it was a violation of the conditions of probation and parole for convicted felons to associate with one another. They spoke to Smith’s daughter, Lakeisha Sylve, and verified she was a resident of the home. Officer Phelps asked Sylve if anyone else was present in the residence. Sylve replied no one else was present “that she knew of[.]” Officer Phelps asked for permission to “look[,]” and Sylve stated, “You can Lsearch the whole house if you would like.” While speaking to' Sylve, Officer Phelps noticed a piece of cellophane in the ashtray on the kitchen table containing a substance that he believed, based on his eight years experience in law enforcement, to be marijuana.

In addition to granting consent to search the home, Sylve accompanied Officer Phelps walking through the home, identifying the different rooms. When Sylve entered the master bedroom, however, she appeared startled. The defendant was standing between the closet and the bathroom doors in the room. Officer Phelps patted down the defendant and discovered $587.00 in his pocket. Officer Phelps then escorted the defendant into the kitchen.

Thereafter, Officer Phelps returned to the master bedroom to finish dealing the room. In the garbage can, he saw cigar tobacco and a bag containing what appeared to be powder cocaine residue. Officer Phelps was aware that drug users often removed the tobacco from cigars and replaced it with marijuana. Officer Phelps asked Sylve if any narcotics or weapons were present in the home. Sylve told Officer Phelps he was “welcome to search the residence!,]” and that he could “turn it upside down or whatever.” Officer Phelps looked in the closet of the master bedroom and saw a bag of powder cocaine located approximately three feet from where the defendant had been standing. The officers then advised everyone present of their Miranda rights. Officer Phelps did not threaten Sylve at any time.

Smith and the defendant were advised they would be screened for drugs. Smith admitted he had been smoking crack cocaine. The defendant conceded he had been snorting cocaine. The defendant subsequently admitted he had been partying for a couple of days, using cocaine and ecstasy. Officer Phelps did not | ¿promise the defendant anything in return for his statement. Nor did Officer Phelps pressure, coerce, threaten, or beat the defendant in order to obtain the statement.

Sylve also testified at trial. She claimed Officer Phelps was already in her living room when she came out to see what was occurring. According to Sylve, her father, Smith, had been arrested. She asked the probation officers about the charge against Smith and the potential sentence involved. Officer Phelps asked Sylve if anyone else was present in the home, and she replied negatively. Sylve conceded the defendant and a quantity of cocaine were subsequently discovered in her room. She also did not dispute that marijuana was present on the kitchen table. According to Sylve, however, Officer Phelps first asked for consent to search and then, only for consent to search the defendant’s belongings after finding the defendant.

On cross-examination, Sylve indicated she wanted to cooperate with the police when they came to her house, and she had no problem with Officer Phelps confirming her claim that no one else was present in the home, especially after he heard a noise in the back of the house. She claimed Officer Phelps asked her for consent after he discovered the cocaine and her .22 caliber handgun. She also claimed the cocaine was not in plain sight, but was underneath clothes in a basket.

MOTIONS TO SUPPRESS

In his sole assignment of error, the defendant argues neither consent nor exigent circumstances excused the war-rantless entry of the home beyond the point necessary to secure the arrest of Mr. Smith.

The Fourth Amendment to the United States Constitution and article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure | ficonducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. LSA-C.Cr.P. art. 703(D); State v. Lowery, 2004-0802, p. 6 (La.App. 1st Cir.12/17/04), 890 So.2d 711, 717, writ denied, 2005-0447 (La.5/13/05), 902 So.2d 1018. A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908, p. 4 (La.App. 1st Cir.11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La.4/21/03), 841 So.2d 791.

A search conducted pursuant to consent is an exception to the requirements of both a warrant and probable cause. State v. Johnson, 98-0264, p. 5 (La.App. 1st Cir.12/28/98), 728 So.2d 885, 887. An exception to the search-warrant requirement also exists for items in plain view. Two conditions must be satisfied to trigger the applicability of the doctrine: (1) there must be a prior justification for an intrusion into the protected area; (2) it must be immediately apparent without close inspection that the items are evidence or contraband. “Immediately apparent” requires no more than probable cause to associate the property with criminal activity. State v. Howard, 2001-1487, p. 8 (La.App. 1st Cir.3/28/02), 814 So.2d 47, 53, writ denied, 2002-1485 (La.5/16/03), 843 So.2d 1120.

Prior to trial, the defendant moved to suppress the evidence sought to be used against him as obtained in violation of his constitutional rights. Following hearings, the motions were denied. The trial court found the probation officers: (1) had a right to be at the West Hall Avenue home; (2) entered the home to handcuff Smith; (3)|7acted with Sylve’s knowledge and permission once inside the home; and (4) did not use duress to obtain consent.

On review, we find the trial court did not abuse its discretion in denying the motions to suppress in regard to count I. The probation officers were attempting to execute an arrest warrant for Smith when they knocked on the door of the West Hall Avenue home. When Smith opened the door and stepped back into the home, the probation officers had to enter the home to arrest him. Sylve then gave them consent to search the home. The cocaine subsequently discovered in the closet was in plain view. Moreover, a warrantless search of the home was justified on the basis of the exigent circumstances presented by the risk of destruction of evidence. See Georgia v. Randolph, — U.S. -, - n. 6, 126 S.Ct. 1515, 1524 n. 6, 164 L.Ed.2d 208 (2006). Evidence of drug use was evident in the home, and the delay necessary to obtain a warrant threatened the destruction of that evidence.

This assignment of error is without merit.

PATENT ERROR

We note patent error and patent sentencing error.

The punishment for count I included the possibility of confinement at hard labor. LSA-R.S. 40:967(0(2). The punishment for count II was necessarily confinement at hard labor. LSA-R.S. 40:966(0(3). A case in which the punishment may be confinement at hard labor shall be tried before a jury of six persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. La. Const, art. I, § 17(A); LSA-C.Cr.P. art. 782(A). Offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided |sthat the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. LSA-C.Cr.P. art. 493.2. The instant case was tried before a six-person jury.

Unanimous conviction by a twelve-person jury where La. Const, art. I, § 17(A) and LSA-C.Cr.P. art. 782(A) require a six-person jury has recently been held to constitute a trial error subject to harmless error analysis. State v. Jones, 2005-0226, p. 4 (La.2/22/06), 922 So.2d 508, 511. The denial in this case, however, of at least ten concurring votes of a twelve-person jury on count II was not harmless error.

In Jones, the Louisiana Supreme Court cited with approval the dissenting opinion of Justice Dennis in State v. Nedds, 364 So.2d 588 (La.1978). Therein, Justice Dennis found that where a defendant is convicted by a larger jury, he has, in effect, been provided greater protection than the minimum required by law. Nedds, 364 So.2d at 589. Justice Dennis noted, however, remand would be justified where a defendant was convicted by a jury composed of fewer persons than the law mandated. Id. Further, in his concurring opinion in Jones, Justice Weimer recognized that the various provisions for the number of jurors are tied to the gravity of the offense. Jones, 2005-0226 at p. 6, 922 So.2d at 517. Indeed, count II in the instant case is serious enough that, in combination with some of the defendant’s predicate offenses as a fourth felony habitual offender, it subjects him to a life term Lof imprisonment without benefit of parole, probation, or suspension of sentence. LSA-R.S. 15:529.l(A)(l)(c)(ii).

We also note the sentence imposed on count II was illegal. The defendant was adjudged a fourth felony habitual offender. Count II, predicate #4, and predicate # 5 were violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more. LSA-R.S. 40:966(C)(3); LSA-R.S. 40:967(B). Thus, the legal sentence in this matter was imprisonment for the remainder of the defendant’s natural life, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 15:529.l(A)(l)(c)(ii).

DECREE

Accordingly, the conviction and sentence on count I are affirmed, the conviction on count II and the habitual offender adjudication and sentence on count II are vacated, and this matter is remanded for further proceedings.

CONVICTION AND SENTENCE ON COUNT I AFFIRMED; CONVICTION ON COUNT II AND HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT II VACATED; AND REMANDED FOR FURTHER PROCEEDINGS.

      . In determining whether the rulings on the defendant's motions to suppress were correct, we are not limited to the evidence adduced at the hearings on the motions. We may also consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . "Ecstasy” is the street name of methylenedi-oxymethamphetamine or MDMA.

      . Due to patent error requiring that count II be reversed, we address the assignment of error in regard to count I only.

      . Having determined that the jury trial error in regard to count II was a constitutional error that was not harmless, we need not, and thus, do not address whether or not the error was structural. As noted in Jones, structural error has been described as one'that affects the framework within which the trial proceeds. Further, constitutional structural errors have been held to warrant automatic reversal. Jones, 2005-0226 at p. 4, 922 So.2d at 511.

      . The trial court was obligated to impose this mandatory minimum sentence unless it found the sentence to be constitutionally excessive in this case. See State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676-77; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). No such finding was made.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Desiree BENNETT v. ARKANSAS BLUE CROSS BLUE SHIELD.
    No. 2005 CA 1714.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      David L. Bateman, Baton Rouge, Counsel for Plaintiff/Appellee Desiree Bennett.
    Frank R. Whiteley, John V. Quaglino, Baton Rouge, Counsel for Defendant/Appellant Arkansas Blue Cross-Blue Shield.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

LThis case illustrates some continuing confusion on the part of both the bench and bar as to the nature and propriety of certification of appealability of judgments under La. C.C.P. art. 1915(B). We dismiss this appeal for the following reasons.

The defendant-appellant, Arkansas Blue Cross-Blue Shield (Blue Cross), appeals the judgment of the Office of Workers’ Compensation Administration, District 5, overruling its peremptory exception of no right of action and denying its alternate motion for summary judgment. The hearing on the exception and alternate motion was held on September 13, 2002, and the judgment was signed by the workers’ compensation judge (WCJ) on November 20, 2002.

On December 13, 2002, Blue Cross filed a motion for a suspensive appeal of the judgment. An order of appeal was signed on December 16, 2002. The order specifically provided “that the judgment rendered on November 20, 2002 is final for purposes of appeal.”

This court ex proprio motu ordered the parties to show cause why the appeal should not be dismissed. On August 26, 2003, we ordered the appeal dismissed on the grounds that the judgment was “interlocutory and, therefore, non-appealable.” Bennett v. Arkansas Blue Cross Blue Shield, 2003 CA 1314 (La.App. 1st Cir.8/26/03) (Unpublished opinion). In doing so, however, we generously allowed Blue Cross until September 15, 2003 to file an application for review under our supervisory jurisdiction. The record shows that no such application was filed.

On March 14, 2005, the WCJ signed another judgment relating to Blue Cross’s exception and alternate motion, to the same effect as the earlier judgment, but with the addition of the following language:

LIT IS FURTHER ORDERED that this Judgment is FINAL for purposes of appeal.
IT IS FURTHER ORDERED that there is no just reason for delaying the appeal as defendant’s denial of plaintiffs claim for additional workers’ compensation is set forth in its Exception and Motion.
Appellate review at this time serves judicial economy as the trial court has denied the correctness of defendant’s legal basis for non-payment.

(Emphasis in original.) Blue Cross now seeks to appeal this later judgment.

DISCUSSION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Jackson National Life Insurance Company v. Kennedy-Fagan, 03-0054, p. 4 (La.App. 1st Cir.2/6/04), 873 So.2d 44, 47, unit denied, 04-0600 (La.4/23/04), 870 So.2d 307. We are compelled to fulfill that duty here.

The overruling of a peremptory exception of no right of action is an interlocutory judgment. Jarrell v. Carter, 577 So.2d 120, 124 (La.App. 1st Cir.), writ denied, 582 So.2d 1311 (La.1991). A judgment denying a motion for summary judgment is also interlocutory in nature. Thus, an appeal does not lie from the court’s refusal to render summary judgment. See La. C.C.P. art. 968. The judgment at issue did not determine the merits of Ms. Bennett’s claim; thus, it is clearly interlocutory. See La. C.C.P. art. 1841.

At the time this appeal was taken, La. C.C.P. art. 2083 provided that an appeal could be taken from a final judgment or “an interlocutory judgment which may cause irreparable injury.” Irreparable injury for ^purpose of such an appeal exists only where the interlocutory judgment cannot, as a practical matter, be corrected on an appeal following a determination of the merits. Collins v. Prudential Insurance Company of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829. Blue Cross has neither alleged nor shown such irreparable injury.

During the hearing of oral argument, we questioned Blue Cross’s counsel regarding the interlocutory character of the second or amended judgment and the propriety of this appeal. Counsel explained that the parties and the WCJ had agreed that the judgment should be certified as immediately appealable to resolve the issues presented by Blue Cross’s exception and motion. In his subsequent argument, after we had already broached the subject, Ms. Bennett’s counsel moved to dismiss the appeal as improper.

We initially address the latter oral motion. We note that nowhere in his brief to this court did Ms. Bennett’s counsel discuss or raise any objection to the procedural propriety of the present appeal, nor did he submit a prior motion to dismiss the appeal pursuant to Rule 2-8.1 of the Uniform Rules of Louisiana Courts of Appeal. Further, counsel failed to make his oral motion in open court during the time period authorized by Rule 2-7.1. We decline to consider the motion.

The present appeal is plainly improper, given that the second or amended judgment simply has no legal effect. While an interlocutory judgment, in contrast to a final judgment, may be substantively amended, its character as an interlocutory judgment is still determined by the nature of the relief granted. The addition of tal-ismanic “certification” language in a “new” or amended judgment cannot serve to magically transform an interlocutory judgment into an appealable partial final judgment under La. |SC.C.P. art. 1915(B). See Belanger v. Gabriel Chemicals, Inc., 00-0747, p. 5 (La.App. 1st Cir.5/23/01), 787 So.2d 559, 563, writ denied, 01-2289 (La.11/16/01), 802 So.2d 612. The judgment is still interlocutory, and such legal alchemy is of no avail. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. La. C.C.P. art. 3.

We decline in our discretion to treat this appeal as an application for supervisory writs, as it was taken long after the expiration of the suspensive and devolutive appeal delays and the extended period previously granted Blue Cross for filing a writ application. We have no jurisdiction to hear this appeal and therefore dismiss it sua sponte. See La. C.C.P. art. 2162. All costs of this appeal are assessed to the defendant-appellant, Arkansas Blue Cross-Blue Shield.

ORAL MOTION NOT CONSIDERED; APPEAL DISMISSED.

KUHN, J., concurs in the result.

      . Article 2083 was amended by Acts 2005, No. 205, § 1, effective January 1, 2006, to authorize the appeal of an interlocutory judgment "only when expressly provided by law;” In the absence of legislation expressly authorizing an appeal of an interlocutory judgment, a party should now seek review under the appellate court’s supervisory authority. La. C.C.P.2083, Comments — 2005, (a), (b).

      . In doing so, we note that this appeal treads dangerously close to the precipice of frivolity, if it does not actually take that perilous plunge. See La. C.C.P. art. 863(B), (D). We decline, however, to consider sanctions, but instead commend counsel for both parties to closer study of this aspect of appellate procedure.


author: KUHN, J.

text:
    Edward TRUSCLAIR and Linda Trusclair v. Marilyn and Peter James HILL and Imperial Fire and Casualty Insurance Company.
    No. 2005 CA 1908.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Edward and Linda Trusclair, Baton Rouge, In proper Person for Plaintiffs/Appellants.
    Stephen Babcock, Mark D. Plaisance, Baton Rouge, Counsel for Defendants/Ap-pellees Marilyn and Peter Hill and Imperial Fire & Casualty Insurance Company.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| gPIaintiffs-appellants, Edward and Linda Trusclair, appeal the trial court’s judgment, sustaining a peremptory exception raising the objection of prescription and dismissing their lawsuit. We reverse.

ISSUE

The issue presented for our review is whether the filing of the petition for damages along with a motion informa pawper-is that was denied prior to the accrual of the one-year prescriptive period interrupted prescription when plaintiffs paid court costs to the clerk of court after the accrual of the prescriptive period.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations of the Trus-clairs’ petition, on March 12, 1999, they sustained personal injuries when a vehicle driven by defendant, Marilyn Hill, rear-ended the vehicle driven by Mr. Trusclair, propelling his 1998 Ford 6000 into the rear of a third vehicle. As a result of the accident, the Trusclairs aver, Mr. Trusclair sustained physical injuries to his back, neck, and shoulders and Mrs. Trusclair suffered an alienation of her husband’s affection or loss of consortium.

The Trusclairs filed their petition for damages on February 28, 2000, at 4:49 p.m., naming Hill, her husband, Peter, and their liability insurer, Imperial Fire & Casualty Insurance Company (Imperial), as defendants. Simultaneously with their petition, the Trusclairs filed a motion to proceed in forma pauperis, which was file-stamped by the clerk of court’s office at 4:51 p.m. on February 28, 2000. On March 2, 2000, the trial judge denied the Trusclairs’ motion stating, “$55,000 annual income, $3,400 in auto insurance and 3 automobiles doesn’t sound like a pauper to me!”

|aOn May 2, 2000, the Hills and Imperial answered the Trusclairs’ petition, generally denying liability and pleading the comparative fault of Mr. Trusclair in causing the automobile accident. After a second unsuccessful attempt by the Trusclairs to proceed in forma pauperis, and the trial court’s overruling of defendants’ peremptory exception alleging an objection of no cause of action, on March 18, 2005, the defendants filed a peremptory exception of prescription, averring that after the trial court denied the Trusclairs’ first motion to proceed in forma pauperis, they failed to timely pay court costs. Because “court costs were paid ... on April 14, 2000,” the defendants allege that the Trusclairs’ lawsuit was filed on April 14, 2000, which is more than one year after the March 12, 1999 accident and, therefore, prescribed.

After a hearing, the trial court sustained defendants’ exception and dismissed the Trusclairs’ lawsuit. The Trusclairs appeal.

DISCUSSION

Prescription is interrupted when the ob-ligee commences an action against the obli-gor in a court of competent jurisdiction and venue. La. C.C. art. 3462. An interruption of prescription resulting from the filing of a suit in a competent court and in a proper venue within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before or after the defendant has made an appearance of record or thereafter, or fails to prosecute the suit at the trial. La. C.C. art. 3463.

In this case, the Trusclairs did not include a filing fee with their petition because they sought to proceed in forma pauperis as permitted by La. C.C.P. arts. 45181-5183. Article 5183 requires a person seeking pauper status to make a proper application to the court either with his first pleading or in a later-submitted written motion. See Gant v. Alexander, 2004-27 (La.App. 3d Cir.5/12/04), 872 So.2d 1280, 1283.

In this appeal, the defendants do not contend that the Trusclairs’ application for pauper status was defective or otherwise deficient. And they do not suggest that the Trusclairs filed their lawsuit in a court without jurisdiction or an improper venue. Defendants’ complaint is that after the pauper status was denied, the Trusclairs failed to timely pay costs. As a result, they assert that the initial interruption should be considered as never having occurred. But according to Article 3463, it is when the plaintiff abandons his claims, voluntarily dismisses the action, or fails to prosecute the suit that the interruption of prescription is considered never to have occurred. This record contains no evidence suggesting any of these events occurred.

The defendants have not cited any legal authority to support their assertion [¡¿hat the payment of court costs is required for a petition to be considered having been filed for purposes of interrupting prescription under Articles 3462 and 3463. Despite the defendants’ reference to La. R.S. 13:841 and 843, we do not find anything in these provisions mandating the payment of costs as a prerequisite to the filing of a suit for purposes of interrupting prescription under Articles 3462 and 3463. La. R.S. 13:841 A(l) merely states that the clerks of the several district courts shall be entitled to demand and receive two dollars for endorsing, registering, and filing petition, as fees of office in civil matters. La. R.S. 13:843 A provides the clerk of court may demand security for costs at the time the suit is filed. But this demand is not mandatory and certainly does not preclude the filing of the lawsuit for purposes of interrupting prescription under Articles 3462 and 3463.

We are aware that La. R.S. 13:842 A states that the clerk shall demand and receive from the plaintiffs in an ordinary suit not less than twenty dollars, or such other amount as may be fixed by law for advanced costs, to be disbursed to the clerk’s salary fund or to others as their fees accrue. And whenever the costs have exhausted the amount of the original advance deposit, the clerk may refuse to perform any further function in the proceeding until the additional costs for the function have been paid. But defendants have not offered any evidence demonstrating that the clerk demanded but did not receive court costs from the Trusclairs pri- or to March 12, 2000, which was one year after the date of the accident between Mr. Trusclair and Hill. The record is also devoid of any evidence showing that the clerk refused to perform any function in the proceeding because costs advanced with the original advance deposit had been exhausted.

1 (¡Defendants contend that on March 3, 2000, the clerk of court sent the Trusclairs a letter “advising that the motion [to proceed in forma pauperis ] was denied and that advance filing costs must be paid before the suit would be filed.” The trial court likewise made reference to the letter in its reasons for judgment, and the Trus-clairs do not deny either its receipt or contents.

In this case, when the trial court denied the Trusclairs pauper status, it did not set a time for payment of court costs. See Tenney v. Burlington Northern & Sante Fe Railway Co., 2003-1260, p.4 n. 3 (La.1/21/04), 863 So.2d 526, 529 n. 3; see also e.g., Moity v. Guilliot, 429 So.2d 521, 522 (La.App. 3d Cir.1983). And it did not issue an order dismissing the petition for damages. Thus, the initial interruption of prescription, effectuated upon the filing of the petition for damages, did not cease by operation of law. Despite the denial of the motion; the Trusclairs did not abandon, voluntarily dismiss, or fail to prosecute their suit. Because their lawsuit was not dismissed by either court order or operation of law, the February 28, 2000 interruption of prescription continued. It is undisputed that the Trusclairs paid the court costs on April 14, 2000, at which time prescription was already interrupted. Accordingly, the trial court erred in sustaining the defendants’ exception of prescription.

DECREE

For these reasons, the trial court’s judgment sustaining the defendants’ peremptory exception of prescription and dismissing the Trusclairs’ lawsuit is reversed. Appeal costs are assessed against Marilyn and Peter Hill and Imperial Fire & Casualty Insurance Company.

REVERSED.

      . Louisiana Code of Civil Procedure article 5183 provides in relevant part:
      A. A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
      (1)His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means, accompanied by any supporting documentation; and
      (2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
      (3) A recommendation from the clerk of court's office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of the court.


author: MCDONALD, J.

text:
    W.J. SPANO COMPANY, INC. v. Dennis MITCHELL and Linda Mitchell.
    No. 2005 CA 2115.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.
    James S. Holliday, Jr., Eugene T. Rhee, Karl J. Koch, Baton Rouge, for Appellants Dennis Mitchell and Linda Mitchell.
    Pauline F. Hardin, New Orleans, for Appellee Rene J.L. Fransen.
    Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.
   MCDONALD, J.

| .¿Dennis and Linda Mitchell (the Mitch-ells) appeal a trial court judgment dismissing their third party claim against Rene J.L. Fransen (Fransen) individually, for damages allegedly incurred in connection with the construction of their new home. For the following reasons, we reverse.

In or around February 2001, W.J. Spano Company, Inc. (Spano) began construction of a new home for the Mitchells in Baton Rouge, Louisiana. The construction contract contemplated a completion date of June 2002. On or around July 31, 2003, with the home allegedly approximately 96% complete, the Mitchells discharged Spano. In January 2004, Spano filed suit against the Mitchells alleging that he was terminated arbitrarily and without cause, which termination caused Spano substantial damages.

The Mitchells answered Spano’s suit, and filed reconventional and third-party demands. Subsequently, a first amended and supplemental answer, reconventional demand and third-party demand was filed naming Rene J.L. Fransen, individually, and Rene J.L. Fransen Landscape Architect, L.L.C., as defendants. Fransen filed peremptory and dilatory exceptions. The Mitchells subsequently filed second and third amending petitions.

On March 28, 2005, a hearing was conducted on the exceptions of no cause of action filed on behalf of Fransen individually and of the limited liability company. For oral reasons assigned, the court sustained the [.^exception as to Fransen individually, dismissing the claims against him with prejudice, at the Mitchells’ costs.

The Mitchells appeal the dismissal of their claims against Fransen individually alleging that the trial court erred in basing its decision on La.C.C. art. 3016, and that pursuant to La. R.S. 12:1320(D) their petition stated a cause of action against Fran-sen individually as a professional. Louisiana Revised Statute 12:1320 provides for the liability of members and managers of limited liability companies to third parties. Section A provides “The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions- of this Chapter.” Section D provides:

Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

Fransen maintains that the Mitch-ells’ claim against Fransen is based solely on his status as the sole member of Rene J.L. Fransen Landscape Architect, L.L.C. He argues that the Limited Liability Company Law makes clear that a member, like Fransen, is not hable for the debt, obligation or liability of the limited liability company. Clearly, La. R.S. 12:1320(B) insulates members, managers and employees from personal liability for a debt or obligation of the limited liability company. However, the Mitchells maintain that Fransen could be liable in his capacity as a professional landscape architect for negligence in performing his professional duties. We Lagree. We find that Section D clearly provides a cause of action against a member, manager, or employee of a limited liability company because of any breach of professional duty, as well as for any fraud or other negligent or wrongful act. Further, we do not find that Curole v. Oschner, L.L.C., 2001-1734 (La. App. 4th Cir.02/20/02), 811 So.2d 92, relied on by Fransen, requires a contrary result.

The issue before the court in Curóle was whether the trial court properly sustained a defendant’s exception of improper venue and transferred Dr. Curole’s lawsuit from Orleans Parish to Jefferson Parish. The underlying basis for Dr. Curole’s suit was an allegation of damages sustained when Oschner Clinic terminated his employment. Oschner Clinic, a limited liability company, as well as several doctors who were members or employees of the L.L.C., were named as defendants. All of the defendants were domiciled in Jefferson Parish, except Dr. Quinlan, who was the chief executive officer of Oschner Clinic, L.L.C. at the time Dr. Curóle was terminated, and whose domicile was in Orleans Parish. In her reasons for judgment, the trial judge stated, “Seeing no way Dr. Quinlan would be personally liable, this case belongs in Jefferson Parish.” Curole, 811 So.2d at 96. The appellate court agreed, noting in dicta that the phrase “or other negligent or wrongful act” must refer to acts done outside one’s capacity as a member, manager, employee, or agent of the limited liability company. Under the facts in Curóle, the courts found that Dr. Quinlan could not be found personally liable for an act he had undertaken for and in his capacity as a member of the L.L.C. “Outside one’s capacity as a member” would, however, refer to other acts of professional or personal negligence.

The facts in the case before us are distinguishable in that while Fransen argues he was acting solely in his capacity as a member of the RL.L.C., he was nevertheless engaged in the practice of his profession. To encourage commerce, the legislature has limited personal liability for some debts incurred or acts performed on behalf of business entities. Similarly, a manda-tary who contracts in the name of the principal does not bind himself personally for the performance of the contract. La. C.C.art. 3016. However, neither of these statutes is intended to shield professionals from liability for personal negligence.

The Mitchells’ amended petition alleges that the landscape architectural plans created by Fransen (and/or Fransen LLC) are inadequate and fall below the professional industry standard which has resulted in property damage to the Mitchell home. The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). The only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to seek relief. Perere v. La. Television Broadcasting Corp. 97-2873 (La.App. 1st Cir.11/06/98), 721 So.2d 1075, 1077. We find that the Mitchells have stated a cause of action against Fransen individually. Therefore, the judgment dismissing the Mitchells’ claims against Fransen individually is reversed. Costs of this appeal are assessed to Rene J.L. Fransen.

REVERSED AND REMANDED.

CARTER, J., concurs.

      . The Mitchells' second amending petition stated that it was filed pursuant to the trial court judgment of October 7, 2004. The minutes of the trial court reflect that on September 27, 2004, exceptions filed on behalf of several defendants, including Fransen individually and the L.L.C., were heard, and that Fransen's exceptions of no cause of action were sustained. The Mitchells were given until October 30, 2004 to amend their claim and third-party demands. However, the judgment so ordering could not be located in the record.

      . Judgment was rendered on other issues; however, those issues were not appealed.


text:
    STATE of Louisiana v. Brandon LEBOEUF.
    No. 2006 KA 0153.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Doug Moreau, District Attorney, Jeanne Rougeau, Assistant District Attorney, Baton Rouge, Counsel for Appellee, State of Louisiana.
    Frank Sloan, Mandeville, Counsel for Defendant/Appellant, Brandon LeBoeuf.
    Brandon LeBoeuf, Defendant/Appellant, In Proper Person.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

RThe defendant, Brandon LeBoeuf, was originally charged by grand jury indictment with first degree murder, a violation of La. R.S. 14:30. Defendant entered a plea of not guilty. The state later amended the indictment to charge defendant with second degree murder, a violation of La. R.S. 14:30.1. Defendant expressly waived the right to a trial by jury. Following a bench trial, defendant was found guilty as charged on October 18, 2005. He waived sentencing delays and was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant now appeals, assigning error as to the sufficiency of the evidence and the adequacy of the trial court’s notification of the prescriptive period for filing an application for postconviction relief. In a pro se supplemental brief, he also argues that the trial court violated his constitutional right to remain silent and failed to afford him the presumption of innocence. For the following reasons, we affirm the conviction and sentence.

FACTS

On the night of May 26, 2004, Corporal Michael Gauthier of the Baton Rouge City Police Department was dispatched to the 300 block of Steele Boulevard in response to a reported shooting. Upon arriving at the scene, Corporal Gauthier discovered a pickup truck stopped in the roadway, Lwith the body of a black male (the victim) slumped in it. He secured the scene for further investigation.

Corporal Robert McGarner (also of the Baton Rouge City Police Department) was the lead detective for the case. He confirmed that four 9mm shell casings were recovered at the scene. No eyewitnesses were located. Photographs of the crime scene were taken. The victim, Lamont Turner, died as the result of exsanguination from three distinct gunshot wounds. Two medium caliber, jacketed bullet slugs were recovered from the victim’s body at the autopsy.

Information obtained during the investigation led to the arrests of Corey Darville, Joseph Chamberlain, Darryl Dean, Mark Caston, and defendant. Based upon statements provided by the other suspects, defendant was charged with the victim’s murder.

FIRST COUNSELED ASSIGNMENT OF ERROR

In his first counseled assignment of error, defendant avers that there was insufficient evidence to support his second degree murder conviction. Defendant notes that the evidence of his guilt was strictly circumstantial. He further notes that there were no eyewitnesses to the shooting and no murder weapon was recovered. Defendant contends that comments made by the trial court in finding defendant guilty as charged demonstrate the court’s belief that the evidence did not exclude every reasonable hypothesis of innocence. Defendant contends that he should be given the benefit of every reasonable doubt arising from the evidence or the lack thereof, and urges that guilty of manslaughter was the proper verdict.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, Uto find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which provides that for such evidence to support a conviction, assuming every fact proven that the evidence tends to prove, every reasonable hypothesis of innocence must be excluded. La. R.S. 15:438. See also State v. Wright, 98-0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 and 00-0895 (La.11/17/00), 773 So.2d 732.

The crime of second degree murder is defined, in pertinent part, as “the killing of a human being: (l)[w]hen the offender has a specific intent to kill or to inflict great bodily harm; or (2)(a) [w]hen the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1(A)(1), (2)(a).

Specific criminal 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). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal Lconelusion to be resolved by the factfinder. State v. Buchanon, 95-0625, p. 4 (La.App. 1st Cir.5/10/96), 673 So.2d 663, 665, unit denied, 96-1411 (La.12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Seals, 95-0305, p. 6 (La.11/25/96), 684 So.2d 368, 373, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).

According to La. R.S. 14:31(A)(1), manslaughter is a homicide which would otherwise be a first or second degree murder, but is “committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of-his self-control and cool reflection.” However, “[p]rovocation shall not reduce a homicide to manslaughter if the [factfinder] 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[.]” Id.

“Sudden passion” and “heat of blood” are thus not, properly speaking, elements of the offense of manslaughter; rather, they are mitigatory factors, in the nature of a defense, which tend to lessen the degree of culpability of the homicide. See State v. Rodriguez, 01-2182, p. 17 (La. App. 1st Cir.6/21/02), 822 So.2d 121, 134, unit denied, 02-2049 (La.2/14/03), 836 So.2d 131. The state does not bear the burden of proving the absence of these mitigatory factors. Id. A defendant who establishes by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” is entitled to a verdict of manslaughter. Id.

State witnesses Dean, Caston, and Dar-ville testified that defendant, nicknamed “Teflon,” openly discussed his intentions regarding the victim prior to the shooting. On the day of the shooting, Caston, Dean, and Chamberlain were at Darville’s apartment when defendant approached them | (¡regarding his intentions. The apartment was located in the Steele Boulevard Apartments, near Government Street, in Baton Rouge.

Dean testified that defendant approached him individually and offered him money in exchange for his assistance with a “lick.” Dean declined defendant’s offer. According to Dean’s testimony, defendant stated that he planned to rob and kill the victim, whom defendant identified. Based upon defendant’s statements to him, Dean understood that defendant planned to kill the victim, a known drug dealer, in order to prevent any retaliation. According to Dean, defendant telephoned the victim just prior to the shooting and arranged a meeting to purchase drugs, specifically, an ounce of marijuana. Defendant then walked toward a nearby apartment (also located in the Steele Boulevard Apartments), while Dean, Caston, Darville, and Chamberlain drove, at defendant’s instruction, to a daycare center located in near proximity to Darville’s apartment. While the vehicle occupants waited for the defendant, Dean heard four gunshots. The occupants then observed defendant running and drove closer to him, and defendant entered the vehicle. One of the other occupants asked defendant what had happened, and he responded by saying that “he [presumably the victim] was hiding like a little a girl.”

According to Dean, defendant stated that he took a little over five hundred dollars and an unspecified amount of marijuana from the victim. |7The group then traveled to Geismar, Louisiana. Defendant stated that he needed to dispose of the gun, and at Darville’s suggestion, attempted to leave his gun at the home of Darville’s cousin. At that point, Dean actually saw the gun. After Darville’s cousin refused to allow defendant to leave the gun at his house, defendant stated that he wanted to throw the gun into a body of water. Chamberlain then drove to a levee located in St. Gabriel, Louisiana, where defendant exited the vehicle and threw the gun over the levee. Dean assumed that defendant had thrown the gun in the water.

Caston similarly testified that defendant approached him while he was at Darville’s apartment (on the day of the shooting) and asked him to participate in a robbery. Ca-ston inquired as to the amount intended to be stolen, but after being advised that it was about $2,500.00, he rejected defendant’s offer. Caston was not acquainted with the victim and did not know whom defendant planned to rob. Caston listened as defendant made a telephone call and negotiated the purchase of an ounce of marijuana. Defendant instructed Chamberlain to drive to the nearby daycare center with the others and to wait for him. Defendant walked to a nearby apartment and sat on some steps.

As the others waited for defendant in the vehicle as instructed, they heard four gunshots. After the shots were fired, defendant jumped over a fence, ran to the car, and entered the car. Defendant instructed Chamberlain to drive away slowly. Defendant, who appeared somewhat nervous, stated that he needed to hide something. The item that defendant made reference to hiding was concealed in a blue “beanie hat.” Caston never actually saw a gun but assumed it was the item concealed in the hat. According to Caston, defendant handed a bag of marijuana and an unspecified amount of money |sto Darville. As they approached Gonzales, Louisiana, defendant stated that he “shot him with four [slugs].” As testified by Dean, Ca-ston testified that they went to Darville’s cousin’s home in Geismar, and then drove to a body of water. Defendant exited the vehicle and walked to the levee. According to Caston, defendant appeared to wipe something off using his shirt and then threw it into the water.

Unlike Dean and Caston, Darville indicated that defendant did. not solicit his participation in a robbery or murder. According to Darville, on the day of the shooting, Chamberlain had agreed to transport Darville and defendant to Hou-ma where they planned to work on a shrimp boat. Darville testified that he believed defendant was going to purchase some marijuana when they left the apartment and that they would then leave for Houma. Darville stated that either Chamberlain or defendant (he could not recall whom) telephoned the victim (identified as the “dude Turner”) to arrange the marijuana purchase. In subsequent testimony, Darville confirmed that defendant stated (before they left the apartment) that he was going to commit a robbery. Defendant pulled up his shirt and displayed a gun carried against his waist.

Darville also heard multiple gunshots as the four vehicle occupants waited for defendant at the nearby daycare center. After defendant entered the vehicle, the group traveled to Geismar. Defendant was then in possession of an unspecified amount of money and marijuana. Because of his own concern about being in proximity to a possible murder weapon, Darville suggested that defendant leave the gun with his (Darville’s) cousin. After Dar-ville’s cousin refused to keep the gun, the five traveled to “the | ^Mississippi] river” where defendant stated he intended to dispose of the gun. Defendant exited the automobile, and Darville assumed that defendant then disposed of the gun. Darville explained that because it was dark, he did not actually see defendant dispose of the gun.

In finding the defendant guilty as charged, the trial court, in pertinent part, stated as follows:

And if this were like a lot of drug deals gone bad, this may have a different answer to it and I may have a different solution, or a different verdict, but this just wasn’t a drug deal.
And, like I said, a lot of drug deals, you can look at it and say, well, he didn’t mean to kill anybody, but I don’t think that was the case here. I think he intentionally got Mr. Turner there for the purpose of the robbery, maybe not to kill him but we’ll never know exactly what took place because nobody was there other than Mr. LeBoeuf, who is still alive and could tell us exactly what happened but he didn’t testify. Perhaps something could have made me believe that there was a manslaughter there in the verdict, had something come along and been a fight over the drugs, but I don’t have any evidence to that affect [sic ]. (Emphasis supplied.)

The trial court obviously concluded that the evidence presented herein excluded every reasonable hypothesis of innocence. The trial court further concluded that there was no evidence of manslaughter. We find that the record supports the trial court’s conclusions. Defendant failed to establish by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood.” Thus, defendant is not entitled to a verdict of manslaughter. The evidence of defendant’s statements and actions during the moments leading up to and immediately following the shooting was sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of second degree murder beyond a 1 ^reasonable doubt. Due to the foregoing conclusions, this assignment of error lacks merit.

PRO SE ASSIGNMENTS OF ERROR

In his first pro se assignment of error, defendant avers that the trial court violated his constitutional right to remain silent when it adversely made reference to his failure to testify. In the second pro se assignment of error, defendant avers that the trial court did not afford him the presumption of innocence, as it made reference to defendant’s failure to produce evidence. The statements at issue were made by the trial court after the close of evidence and immediately before it rendered its verdict.

Regarding the first pro se assignment of error, defendant emphasizes the following language of the trial court’s oral reasons, “I think he intentionally got Mr. Turner there for the purpose of the robbery, maybe not to kill him but tve’ll never know exactly what took place because nobody was there other than Mr. LeBoeuf, who is still alive and could tell us exactly what happened but he didn’t testify.” (Emphasis supplied.) Defendant notes that he has a constitutional right not to testify in his own defense and argues that the trial court committed reversible error in using defendant’s silence as a factor in reaching the verdict.

Louisiana Code of Criminal Procedure article 770 provides when a mistrial should be granted in a jury trial:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly, to:
(3) The failure of the defendant to testify in his own defense ...
_Lil- • •
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Article 770 refers to a remark or comment “made within the hearing of the jury.” This was a bench trial. Nevertheless, we note that defendant did not lodge a contemporaneous objection to the trial court’s quoted statement or move for a mistrial pursuant to the rationale of article 770(3) or pursuant to article 775, the general provision addressing mistrials in both jury and bench trials. Thus, the issue has not been properly reserved for appellate review. La.C.Cr.P. art. 841.

At any rate, comment on the defendant’s failure to take the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). State v. Thomas, 05-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per curiam). In light of the evidence of defendant’s guilt, as well as defendant’s burden to prove the mitigatory factors supporting manslaughter, we find that the trial court’s verdict herein was surely unattributable to any supposed error in this regard. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Sanders, 93-0001, p. 17 (La.11/30/94), 648 So.2d 1272, 1286, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996). Thus, the first pro se assignment of error lacks merit.

In his second pro se assignment of error,- defendant quotes the following language: “Perhaps something could have made me • believe that there was a manslaughter there in the verdict, had something come along and been a fight over the drugs, but I don’t have any evidence to that affect li¿sic].” Defendant notes that he had no obligation to present evidence. Defendant contends that he rested on the presumption of innocence and held the state to its burden of proof. The defendant argues that the quoted statement demonstrates that trial court failed to afford him Fifth Amendment protections and the presumption of innocence. He concludes that such constitutes an infringement of his fundamental rights and structural reversible error.

Our justice system provides a defendant with a presumption of innocence until proven otherwise. This presumption is fundamental to the fairness that a defendant is entitled to receive. La. Const, art. I § 16. The principle that there is a presumption of innocence in favor of the accused is the undoubted law axiomatic and elementary; and its enforcement lies at the foundation of the administration of our criminal law. The presumption of innocence is a “conclusion drawn by the law5’ by which a defendant must be acquitted unless proven to be guilty. Coffin v. U.S., 156 U.S. 432, 458-59, 15 S.Ct. 394, 404, 39 L.Ed. 481 (1895); State v. Hopkins, 39,730, pp. 9-10 (La.App.2d Cir.8/17/05), 908 So.2d 1265, 1273-1274, unit denied, OS-2253 (La.3/17/06), 925 So.2d 541.

Again, we observe that defendant did not lodge a contemporaneous objection to the quoted statement of the trial court; thus, the issue has not been properly reserved for appellate review. La.C.Cr.P. art. 841. Nonetheless, based on our careful review of the record, we disagree with defendant’s contention that the trial court did not afford him the presumption of innocence. As previously stated, defendant, rather than the state, had the burden of establishing, by a preponderance of the evidence, that he acted in “sudden passion” or “heat of blood” in order to be entitled to a verdict of manslaughter. The comments referenced above are simply indicative of the [atrial court’s obvious conclusion that defendant failed to meet his burden of proving the mitigating factors. The verdict rendered herein is soundly based on the evidence presented during the trial, which established beyond reasonable doubt that defendant killed the victim with specific intent as part of an armed robbery. Thus, we find no error in this regard. The second pro se assignment of error lacks merit.

SECOND COUNSELED ASSIGNMENT OF ERROR

In the second counseled assignment of error, defendant avers that the trial court failed to properly advise him of the prescriptive period for applying for post conviction relief under La.C.Cr.P. art. 930.8(C). Defendant correctly notes that the two-year period for applying for post conviction relief runs from the date the conviction and sentence become final, not from the date of sentencing.

Here, defendant waived sentencing delays and was immediately sentenced after the verdict was rendered. On October 20, 2005, defendant moved for an appeal. In a subsequent sentencing proceeding on October 25, 2005, the trial court noted its earlier failure to inform defendant of the delays for filing for reconsideration of sentence, for appeal, and for postconviction relief. The trial court then stated to defendant, in pertinent part: “You have thirty days from today’s date to ask me to reconsider this sentence. And two years to file any post conviction motions that you want to file.”

Louisiana Code of Criminal Procedure article 930.8(C) provides that, at the time of sentencing, the trial court shall inform the defendant of the prescriptive period for applying for post-conviction relief. We agree with defendant’s contention that he was not properly advised pursuant to La.C.Cr.P. art. 930.8(C). However, this article contains merely precatory language and does not bestow an enforceable right upon an individual | udefendant. State ex rel. Glover v. State, 93-2330, 94-2101, 94-2197, p. 21 (La.9/5/95), 660 So.2d 1189, 1201, abrogated in part on other grounds, State ex rel. Olivieri v. State, 00-0172, 00-1767 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001).

While La.C.Cr.P. art. 930.8(C) directs the trial court to inform the defendant of the prescriptive period at the time of sentencing, its failure to do so has no bearing on the sentence and is not grounds to reverse the sentence or remand the case for resentencing, and the article does not provide a remedy for an individual defendant who is not told of the limitations period. See Glover, 98-2830 at pp. 20-21, 660 So.2d at 1201. Moreover, as the issue has been expressly raised herein, it is obvious that defendant has actual notice and knowledge of the limitation period or has the benefit of an attorney to provide him with such notice. Although we have done so in the past under similar circumstances, we decline to remand for resentencing. State v. Brooks, 40,186, pp. 9-10 (La. App.2d Cir.10/26/05), 914 So.2d 110, 115-116; State v. Dupree, 02-1158, p. 3 (La. App. 4th Cir.10/23/02), 831 So.2d 379, 381. Out of an abundance of caution and in the interest of judicial economy, we instead note for the record and advise defendant that La.C.Cr.P. art. 930.8 generally provides that no application for postconviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. arts. 914 or 922.

For the foregoing reasons, we affirm both the conviction and sentence of the defendant, Brandon LeBoeuf, with notice to him of the prescriptive or limitations period for seeking post-conviction relief, as stated above.

CONVICTION AND SENTENCE AFFIRMED.

      . In the indictment, defendant's surname was amended by the addition of "a/k/a LeBoef.”

      . Defendant was not rearraigned after the amendment to the indictment. However, La. C.Cr.P. art. 555 provides that "[a] failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” The record shows that defendant was sufficiently apprised of the charge against him. Defendant does not allege any prejudice resulting from the above omission, nor do we find any indication of same. Thus, the omission was harmless. See also La.C.Cr.P. art. 921.

      . Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). First degree robbery differs from armed robbery only in that it applies "when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.” La. R.S. 14:64.1(A). The elements of simple robbery are the same as those of armed robbery, except the offender is "not armed with a dangerous weapon.” La. R.S. 14:65(A).

      . The record indicates that Darville shared the apartment with Chris Garafola and that defendant regularly spent nights in the apartment. Garafola was working on the day of the shooting and was not present during any of the significant events culminating in the murder.

      . According to the testimony presented during the trial, the slang term "lick” is generally defined as a means of financial gain, but may have differing meanings depending upon the circumstances and specific context. In this case, Dean understood it to mean a robbery, although it could also mean to kill. Caston believed the term referred to a robbery.

       Three weeks prior to the incident, defendant had discussed the same plans with Dean.

      . St. Gabriel is a community situated along the Mississippi River in Iberville Parish.

      . During cross-examination, Caston specified that the defendant had an ounce of marijuana and approximately two hundred dollars in his possession when he entered the. vehicle.


author: CARTER, C.J.

text:
    STATE of Louisiana v. Arien Lamar DELCO.
    No. 2006 KA 0504.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Bertha M. Hillman, Thibodaux, Counsel for Defendant/Appellant, Arien Lamar Delco.
    Matthew Hagan, Juan Pickett, Assistant District Attorneys, Houma, Counsel for Appellee, State of Louisiana.
    Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.
   CARTER, C.J.

The defendant, Arien L. Delco, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. Following a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant’s motions for post verdict judgment of acquittal and for new trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

The defendant appeals, alleging the evidence is insufficient to support his conviction and assigning as error the replay of his videotaped statement. For the following reasons, we affirm the conviction and sentence.

Statement of Facts

On or about June 17, 2004, just after 5:00 p.m., a shooting incident occurred at the defendant’s residence in Houma, Louisiana. The shooting occurred after the victim, Charles Breaux, approached the defendant’s residence, and the two men engaged in a verbal altercation. When the' victim exited the defendant’s home, the defendant retrieved a .380 caliber handgun from his bedroom. As the victim stood under the carport of the defendant’s residence, the defendant shot the victim in the head. At approximately 5:17 p.m., the defendant called 911 and reported the shooting. During the 911 report, the defendant stated that he had shot an individual who' came to his residence and attempted to attack him. The victim died as a result of the gunshot wpund.

| Sufficiency of the Evidence

The defendant avers that there was insufficient evidence to support the second degree murder conviction. The defendant concedes that he killed the victim; however, the defendant contends that he acted in self-defense in acquiring the gun. The defendant specifically avers that the gun accidentally discharged when the victim swung his hands at the defendant; he did not specifically intend to shoot the victim. In the alternative, the defendant avers that he is guilty of negligent homicide. In the further alternative, the defendant argues that he should be found guilty of manslaughter, as the defendant and the victim were engaged in a heated verbal altercation just prior to the shooting.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and adopted by the Louisiana Legislature in enacting LSA-C.Cr.P. art. 821, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 02-1492 (La. App. 1 Cir. 2/14/03), 845 So.2d 416, 420.

The defendant was found guilty of second degree murder, which is defined as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1A(1). “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender |4actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or the facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La.App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La.12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendants act of pointing a gun and firing at a person. State v. Henderson, 99-1945 (La.App. 1 Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 00-2223 (La.6/15/01), 793 So.2d 1235.

In contrast to second degree murder, negligent homicide is defined as the “killing of a human being by criminal negligence.” LSA-R.S. 14:32A. “Criminal negligence exists when, although neither specific nor criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” LSA-R.S. 14:12.

The first state witness, Willie Bolden, Jr., owns a home directly across the street from the defendant’s residence and next door to the victim’s residence. Before the shooting incident, Bolden often observed the defendant and the victim socializing with each other at their residences. At the time of the shooting, Bolden was sitting on the front step of his home. Bolden initially observed the victim as he exited a vehicle and entered his own residence. After remaining at his home for a brief period of time, the victim walked to the defendant’s residence and yelled, “Come outside, Bitch.” The defendant came outside and an argument ensued. The [ ^defendant told the victim to leave, “[a]nd the next thing you know, Arien came back, put a gun to Charles’s face. Charles slapped the gun out with his left hand. Arien told him get out his yard, get out his face. Put the gun back in his face. He shot him. Charles fell to the ground.” Bolden stated that his view of the area was unobstructed, and the victim did not have a weapon.

Bolden further explained that the defendant and the victim were standing face to face, under the carport of the defendant’s residence, at approximately an arm’s length distance, when the defendant raised the gun to the victim’s face, near his forehead. The victim used his left hand to push the gun away from his face, and the victim continued to argue with the defendant as the defendant instructed him to leave. The defendant raised the gun again and shot the victim. Bolden indicated that no one else was in the defendant’s driveway at the time of the shooting. Although Bolden observed two individuals pass on bicycles and a third individual at the end of the street, none of these individuals were in the general vicinity at the time of the shooting. On cross-examination, Bolden confirmed that his view of the defendant was obstructed by the victim’s back.

Defense witness Terry Brown stated that he spoke to the victim just prior to the incident, and the victim stated that he was going to physically attack the defem dant. Brown walked to the defendant’s residence along with the victim but remained outside. Brown listened as the verbal altercation ensued. Brown stood at the end of the driveway (about 20 feet away) as the victim and the defendant exited the home. Brown stated that the defendant pointed the gun at the victim’s head. The victim “swung at the gun, the gun went off and — he fell.” Brown ran across the street to the victim’s residence and called 911. According to Brown, Bol-den was standing in his doorway across the street at the time. During crossjex-amination,6 Brown conceded that he was more focused on the gun than Bolden-Brown further confirmed that the defendant and the victim did not struggle over the gun prior to its discharge.

Officer J. Chapman of the Houma Police Department confirmed that the carport area of the defendant’s residence was not lit. However, Officer S. Welter testified that in the month of June it does not begin to get dark outdoors until between 7:00 p.m. and 8:00 p.m.

At approximately 5:30 p.m., Officer Chapman was dispatched to the defendant’s residence to conduct documentation and evidence collection. Officer Chapman collected the semi-automatic handgun used by the defendant. Officer Chapman confirmed that the weapon had to be manually cocked before a shell would enter the chamber to allow the firing of the weapon.

Dr. Feaster Fitzpatrick, an expert in pathology and autopsies, conducted the autopsy of the victim. Dr. Fitzpatrick described the victim’s gunshot wound as a close-range gunshot wound to the forehead. He specified that the weapon was either touching or very close to the victim’s forehead when it was fired.

Officer Welter was dispatched to the scene at approximately 5:18 p.m. and arrived approximately two minutes later. Officer Welter was the first officer on the scene. When Officer Welter approached the defendant, the defendant stated as follows, “I shot him. I’m the one you’re looking for.” At that point, Officer T. Yoisin escorted the defendant to Detective B. Tabor’s police unit.

Detective Tabor conducted a pat-down search of the defendant before placing him in the unit to be transported to the police department. While in the police unit, the defendant stated several times that he shot the victim. Detective |7Tabor repeatedly instructed the defendant to wait until they arrived at the police station before making any statements. Detective Tabor stated that he did not question the defendant; however, the defendant proceeded to inform the detective that he was watching television when the victim arrived at his residence, and the verbal altercation ensued. The victim told the defendant that he wanted to commence a physical altercation and asked the defendant to come outside. As the victim stepped out of the home, the defendant retrieved his gun from his bedroom. The defendant followed the victim outside. The victim pushed the defendant’s forehead with his fingers and called the defendant several derogatory names. The defendant advised that at that point, he placed the gun to the victim’s forehead and shot him. The defendant did not mention a struggle or misfire. When they arrived at the police station, the defendant was immediately booked and advised of his Miranda rights.

Sergeant J. McElroy and Detective T. Theriot conducted a videotaped interview of the defendant. The videotape was first played before the jury during the state’s direct examination of Detective Theriot. During the interview, the defendant stated that he and the victim were friends “off and on” prior to the shooting. When the victim arrived at the defendant’s residence, the defendant and his great aunt were present in the home. The victim pounded on the door, opened it, and stood in the doorway. The victim accused the defendant of telling a female |sthat the victim stole an unspecified amount of money from the defendant. The defendant denied making such a statement. The victim continued to make such accusations and the defendant told the victim that he was being disrespectful and told him to leave. The victim cursed the defendant and told the defendant to come outside, stating that he would “whip” the defendant’s “ass.” The victim then stepped outside of the home, and the defendant retrieved his gun and a cigarette. The defendant exited the home. The defendant showed the victim the gun, and the victim pushed the defendant’s forehead with his fingers. The defendant then shot the victim. The defendant stated that he shot the victim in self-defense.

During his trial testimony, the defendant stated that he did not intentionally shoot the victim; rather, he retrieved the gun out of fear. The defendant also grabbed a cigarette and a cigarette lighter. When asked whether he obtained the cigarette to calm himself, the defendant agreed and added that he could not smoke in the home because children lived there. The defendant exited the home. The victim began walking away but turned back around and approached the defendant. The defendant held the gun up. The victim swung his left hand toward the gun and it accidentally discharged. When asked why he did not simply close the door after the victim stepped outside of the defendant’s home, the defendant stated that he was afraid. The defendant further stated that he was nervous when he made statements to the police.

During cross-examination, the defendant reiterated that the victim was being disrespectful just prior to the shooting. The defendant retrieved his gun because he did not know what the victim “had in store” for him outside. The defendant also 19noted that he was angry because the victim was making accusations against him and threatening him. To the defendant’s knowledge, the victim did not have any weapons. When asked why he did not simply lock the door after the victim exited the residence instead of retrieving his weapon and following the victim, the defendant stated that he did not know what the victim was capable of doing. The defendant also noted that he was concerned about the victim coming back at a later time to ensue a physical altercation. The defendant stated that the gun was already cocked when he retrieved it, as he had cocked it prior to placing it under his pillow. The defendant acknowledged aiming the gun in the air toward the victim’s face. The defendant could not recall whether his finger was on the trigger at the time of the discharge. When the victim hit the defendant’s hand, the gun fired.

Lisa Sims, the victim’s sister, indicated that the defendant and the victim were friends prior to the shooting incident and would often visit each other. Sims was informed of the shooting shortly after it occurred and immediately went to the defendant’s residence. At the time of her arrival, the defendant was in a police unit. Sims questioned the defendant as to why he shot her brother. According to Sims’s testimony, the defendant stated, “Charles shouldn’t have been f-ing with me.” During cross-examination, Sims confirmed that she wrote the defendant a letter to inform him that she had forgiven him and that she, due to the close relationship that the defendant and her brother had prior to the shooting, believed that the defendant did not intend to kill her brother.

At the outset, we note that the defendant’s specific intent to kill the victim may be properly inferred from his act of pointing the gun at the victim’s head and firing. Henderson, .762 So.2d at 751. The jury obviously rejected the version of the facts presented during the defendant’s trial testimony and concluded that the hnshooting was not accidental. We find such a rejection reasonable. The statements made by the defendant to the police and to Lisa Sims immediately after the incident did not convey an accidental shooting. While the defendant during the trial claimed that he was nervous while making statements to the police and did not mean to convey that the shooting was intentional, our review of the videotaped interview reveals otherwise. The defendant was relatively calm during the interview and seemed eager to present his version of the facts. The defendant gave a succinct and lucid account of what he claimed to be facts of the incident. The defendant never indicated that the gun was fired accidentally. The defendant specifically indicated that he shot the victim after the victim pushed the defendant’s forehead with his fingers. According to Bolden, the defendant re-raised and fired the gun after the victim swung his hand and knocked the gun out of his face.

The defense eyewitness, Brown, stated that the gun went off when the victim swung at the gun. However, Brown’s testimony was not necessarily contrary to the conclusion that the shooting was intentional. Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La.App. 1 Cir. 1984). If there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is of the weight of the evidence, not its sufficiency. Richardson, 459 So.2d at 38. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Creel, 540 So.2d 511, 514 (La.App. 1 Cir.), writ denied, 546 So .2d 169 (La.1989). Thus, we reject the defendant’s contention that the evidence supports a conviction of negligent homicide.

hiFurther, any rational trier of fact could find beyond a reasonable doubt that the defendant did not act in self-defense in shooting the victim. When a defendant charged with a homicide claims self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Rosiere, 488 So.2d 965, 968 (La.1986). At the time of the offense, Louisiana Revised Statutes 14:20 provided in pertinent part: “A homicide is justifiable: (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.” However, LSA-R.S. 14:21 provides: “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

The victim never actually attempted to physically attack the defendant, and there is absolutely no evidence that the victim was armed during the verbal altercation. Moreover, a theory of self-defense is inconsistent with the defendant’s claim of accidental discharge made during his trial testimony. We note that the defendant argues on appeal that the two theories, accidental discharge and self-defense, are not mutually exclusive. The defendant avers that he retrieved the weapon in self-defense but did not intentionally fire it. However, the defendant voluntarily exited his home to follow the victim outside, and during his trial testimony, the defendant stated that locking his door after the victim exited would not have prevented a future brawl with the victim. By killing the victim, the defendant eradicated any concern of a future brawl. Based on our review of the |12evidence, we do not find that the defendant could have reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm at the time he retrieved the gun. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984). No such alternate hypothesis exists in the instant case.

We will now consider the defendant’s alternative manslaughter argument. In accordance with LSA-R.S. 14:31A(1), manslaughter is a homicide that would be a first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. “Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.... ” See LSA-R.S. 14:31A(1). “Sudden passion” or “heat of blood” are not elements of the offense of manslaughter; rather they are mitigatory factors in the nature of a defense that tend to lessen the culpability. State v. Rodriguez, 01-2182 (La.App. 1 Cir. 6/21/02), 822 So.2d 121, 134, unit denied, 02-2049 (La.2/14/03), 836 So.2d 131. Because they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” is entitled to a verdict of manslaughter. Rodriguez, 822 So.2d at 134.

It is clear that the defendant and the victim had a verbal altercation prior to the shooting. However, based on the instant circumstances, the jury could have reasonably concluded that an average person would not have been deprived of his |iaself-control and cool reflection. The defendant could have closed and locked his door and contacted the police after the victim exited the residence. Instead, the defendant decided to retrieve his gun, along with a cigarette and a cigarette lighter. Again, in presenting testimony in support of his accidental discharge theory, the defendant’ indicated that he was not angry enough to intentionally shoot the victim. The defendant testified, “Anyway, I was mad; but it wasn’t nothing to shoot him [over], you know.” We find that the defendant failed to prove any mitigating factors by a preponderance of the evidence.

Due to the foregoing conclusions, this assignment of error lacks merit.

Replay of Defendant’s Videotaped Statement

The defendant avers that the trial court committed reversible error in allowing the state to replay the defendant’s videotaped statement. The defendant does not question the admissibility of the actual evidence presented at trial; rather, the defendant argues that the evidence was repetitive and incurably prejudicial.

At the outset, we note that the defendant’s appeal brief incorrectly states that the defendant’s videotaped statement was replayed during the state’s rebuttal closing argument. The videotaped statement was initially played during the state’s case-in-chief and replayed as rebuttal evidence, not during closing arguments. Nonetheless, the defendant raises a relevant argument on appeal regarding the replay of the videotape.

The state has the right to rebut evidence adduced by a defendant. LSA-C.E. art. 611E. The prosecution is entitled in rebuttal to explain, repel, counteract, or contradict evidence adduced by the defense. It may not, however, introduce new issues or facts, or reserve part of its case-in-chief for rebuttal. State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, 981. Control of the evidence presented by the |ustate on rebuttal is within the sound discretion of the trial court and will not be disturbed except in extreme cases, such as when evidence is kept back deliberately for purposes of deceiving and obtaining undue advantage. State v. Williams, 445 So.2d 1171, 1181 (La.1984).

The defense directs this court to State v. Davis, 246 La. 383, 164 So.2d 589 (1964), wherein serious and prejudicial error was found when the trial judge allowed two deputies, in rebuttal, to substantially repeat what they had testified to during the state’s case-in-chief. This was deemed improper rebuttal testimony, as it was merely a repetition of negative testimony given in the case-in-chief. The Louisiana Supreme Court noted that in order to convict the defendant the state was relying entirely on three purported confessions made by the defendant following his arrest, while the defendant was relying on a plea of self-defense. Davis, 164 So.2d at 591. This having been anticipated by the state, it had elicited from two deputy sheriffs, during its case-in-chief, statements to the effect that when Davis “confessed” he never at any time claimed he shot the victim in defense of himself or his wife. The defendant’s trial testimony provided otherwise. Over defense objection, the state was allowed to recall these same two deputies to the stand and simply have them repeat and reiterate their testimony that the defendant did not state at any time during his “confessions” that he had killed the victim in self-defense. In finding reversible error, the court in part stated:

It is obvious to us that such attempted rebuttal was particularly prejudicial to the defendant as it could have had no other effect than to place the weight of these public officials in the scales of justice. It is well to note here that all of the witnesses to these so-called “confessions” were either deputy sheriffs or the assistant district attorney who tried the case, the latter, in his argument to the jury, emphasizing time and again that because of his personal participation in the taking of these “statements” he knew the deputies were telling the truth. And although he did not take the stand in this so-called rebuttal effort, he | ^nevertheless, argued consistently to the jury that Davis had never told him as the assistant district attorney he acted in self-defense.

Davis, 164 So.2d at 592 (footnote omitted) (emphasis added).

The court further noted that the injury was compounded and the jury further prejudiced when the district attorney, who did not try the case but was in the courtroom throughout the trial as a spectator, “added his personal prestige, as well as the weight of his office, in the scales against the defendant” when he made a special plea to the jury in closing as follows:

Now, in this case, the only thing you’ve got to look for, the only thing in my opinion which is important, is whether or not you are going to believe the duly constituted law officials of this Parish, including my own assistant, or whether or not you’re going to believe this man, who through his own admission and who through cross-examination, is a convicted criminal. That’s what you’ve got to decide in this case and that’s the only question you’ve got to decide.

Davis, 164 So.2d at 592 (emphasis added).

The instant case is clearly distinguishable from Davis. First, herein the defendant’s statement cannot be labeled as “purported” since it was evidenced by video. Moreover, the videotaped statement itself was introduced during the case-in-chief along with the testimony of one of the officers who conducted the interview. Also, the state’s case did not rely entirely on the defendant’s videotaped statement. Evidence presented by the state also included the testimony of eyewitnesses Bol-den and Sims. Moreover, the evidence at issue herein does not consist of statements by public officials, and there was no prejudicial comment by the state.

As stated, the evidence at issue was not introduced for the first time on rebuttal, but initially was admitted during the state’s case-in-chief. The evidence was admitted on rebuttal to contradict the defendant’s claim, first presented at trial, 11fithat the gun was dischai-ged accidentally. In State v. Guiden, 399 So.2d 194, 199 (La. 1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982) and State v. Bonanno, 373 So.2d 1284, 1292 (La.1979), the Louisiana Supreme Court held that a statement properly admitted during the case-in-chief may be replayed or repeated during closing arguments. That being the case, we conclude that replaying the tape in the case sub judice was no more prejudicial than replaying the tape during closing arguments would have been. While the jury heard the statement twice, this fact alone does not mean it gave undue weight to the statement’s substance.

The verdict rendered herein was surely unattributable to the replay of the defendant’s videotaped statement, and the defendant has not demonstrated any resulting prejudice. Thus, even if we were to conclude that the trial court abused its wide discretion in allowing the state to replay the videotape as rebuttal evidence, we find such an error harmless beyond a reasonable doubt. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); see also LSA-C.Cr.P. art. 921.

This assignment of error has no merit.

CONVICTION AND SENTENCE AFFIRMED.

      . At the time of the discovery, the weapon was positioned on a bed in the defendant's bedroom.

      .The record indicates that the defendant invoked his right to an attorney while he was in the booking area. Thereafter, the defendant was instructed to refrain from making a statement. The defendant later waived his rights after being re-advised and provided a statement to interrogating officers. The defendant does not contest the voluntariness of the statement and conceded during his trial testimony that the interrogating officers were unaware of his prior invocation.

      . The defendant indicated that his great aunt was in another portion of the home during the incident and was hearing impaired. According to the defendant, she did not witness the incident.

      . The defendant stated that another individual was standing outside but was not involved in the altercation. The defendant referred to the individual as "Prune.”

      . Louisiana Revised Statutes 14:20 was amended by 2006 La. Acts No. 141, § 1.


author: McDonald, j.-

text:
    Mark BANKS v. CITY PARISH OF EAST BATON ROUGE and Louisiana Workers’ Compensation Corporation.
    No. 2005 CA 1825.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.
    Rehearing Denied Oct. 19, 2006.
    Otha Curtis Nelson, Sr., Baton Rouge, Counsel for Plaintiff/Appellant Mark Banks.
    Debra Talbot Parker, Baton Rouge, Counsel for Defendants/Appellees City Parish of East Baton Rouge and Louisiana Workers’ Compensation Corporation.
    Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.
   McDonald, j.-

| gClaimant, Mark Banks, filed a disputed claim for compensation with the Office of Workers’ Compensation Administration, asserting that he was working at a job site for the East Baton Rouge City Parish Community Development Department in Baton Rouge on December 14, 1999, when a wheelbarrow fell from a dump truck onto his head, causing injury. Claimant asserted that his wage benefits were terminated or reduced on September 10, 2001, that he was disabled and was seeking penalties and attorneys fees, and that the employer had failed to timely provide a written report of a medical examination.

The East Baton Rouge City Parish and Louisiana Workers’ Compensation Corporation (defendants) answered the petition, asserting that they had paid $18,976.25 in indemnity benefits and $23,314.29 in medical benefits to and on behalf of the claimant; that claimant’s average weekly wage and compensation rate would be supplemented prior to trial; and that claimant was not currently temporarily disabled, permanently disabled or suffering from a loss of earning capacity. In the alternative, the defendants asserted all rights to reduce benefits and all rights toward any credits or offsets.

After a hearing on the merits, the workers’ compensation judge ruled that the claimant proved by a preponderance of the evidence that an accident occurred as defined by La. R.S. 23:1021; that the termination of indemnity benefits on September 10, 2001 was proper and was reasonably controverted; that the claimant did not prove entitlement to any future indemnity benefits; that while defendants should have paid for ongoing medical treatment for Dr. Tyrone Girod and Dr. Burl Forgey, their failure to do so was reasonably controverted; that no penalties or attorneys fees were Lowed as a result of failure to pay for ongoing medical treatment by Dr. Girod and/or Dr. Forgey; that defendants were required to reimburse claimant’s attorney the sum of $552.00 for medical services to Dr. Girod and $380.00 to Dr. For-gey; that defendants were entitled to an offset from any monies paid by Blue Cross through June of 2003 and were not required to reimburse Blue Cross for those monies paid for by Blue Cross; that the defendants’ La. R.S. 23:1102 defense was denied; that the claimant made misrepresentations at trial and before trial for the willful purpose of obtaining workers’ compensation benefits as and as a result, pursuant to La. R.S. 23:1208, the claimant’s benefits were forfeited as of January 26, 2004, the first day of the trial; that the court costs for expert fees due to Dr. Tyrone Girod and Dr. Forgey were to be paid by the defendants; that legal interest was awarded in accordance with the law; that the claimant’s claim for workers’ compensation benefits was dismissed with prejudice; and that claimant’s post-judgment request for out-of-pocket expenses, such as mileage reimbursements and co-pays, was denied.

In making his ruling, the workers’ compensation judge orally cited extensive reasons noting that the claimant was “willing to say and do anything for the continuation of benefits,” and that he gave “vague answers which basically amount[ed] to misrepresentations or don’t remember, don’t recall” at trial. The workers’ compensation judge further found that “[tjhere’s a panoply of evidence backing up the exaggeration of his symptoms and the malingering diagnosis.” Claimant is appealing the judgment and makes numerous assignments of error. After a thorough review of the record, we find no manifest error in the factual determinations of the workers’ compensation judge or legal error in the judgment of dismissal. We affirm the trial court judgment in accordance with the l4Uniform Rules-Courts of Appeal, Rule 2-16.1. B. Costs are assessed against claimant, Mr. Banks.

AFFIRMED.