author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Tyrone B. SMOTHERS.
    No. 05-KA-781.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Kenneth Bordelon, Assistant District Attorneys, Gretna, Louisiana, For Plaintiff/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for De- ' fendant/Appellant.
    Tyrone B. Smothers, Cottonport, Louisiana, pro se.

      Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

|sDefendant, Tyrone B. Smothers, appeals his conviction of unauthorized entry of a place of business, a violation of LSA-R.S. 14:62.4. On appeal, his counsel assigns the following Assignments of Error:

1. The trial court erred in allowing hearsay evidence to be admitted, violating Mr. Smothers’s Confrontation Clause rights.
2. The trial court erred in failing to grant the motion for post-verdict judgment of acquittal where the evidence was insufficient to uphold the conviction.
Defendant also filed a Pro Se Supplemental Brief, raising three issues: inadmissible testimony, insufficient evidence to convict, and ineffective assistance of counsel.

This Court finds merit to the arguments regarding inadmissible hearsay testimony. Because we reverse and remand for a new trial on these grounds, we do not address the remaining Assignments of Error.

J¿PROCEDURAL HISTORY

On June 15, 2004, the Jefferson Parish District Attorney filed a Bill of Information charging Smothers with unauthorized entry of a place of business. LSA-R.S. 14:62.4. Defendant was arraigned on June 16, 2004, and pled not guilty.

Defendant filed a Motion in Limine to exclude the introduction of any evidence relating to an anonymous tip that lead to the investigation of this incident, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Motion was argued and denied prior to trial on August 31, 2004. Defendant was tried by a six-member jury on that same day. The jury returned a verdict of guilty as charged.

On November 2, 2004, defendant filed a Motion for Appeal, in proper person. He filed a Pro Se Motion for Posb-Verdict Judgment of Acquittal on November 12, 2004. On January 20, 2005, defendant filed Pro Se Motions for New Trial and for Stay of Sentence. On January 28, 2005, defendant filed a counseled “Motion in Post Verdict Judgment of Acquittal, Arrest of Judgment, and Alternatively Motion for New Trial.”

On January 28, 2005, the trial court heard arguments on the defense motions and denied all of them. Defendant waived statutory delays, and the court sentenced him that day to three years at hard labor.

Defendant filed a Motion for Appeal on January 31, 2005, and a Motion to Reconsider Sentence on February 16, 2005. The trial court granted the appeal motion on February 1, 2005.

On September 3, 2004, the State filed a habitual offender Bill of Information alleging defendant to be a second felony offender. The State re-filed the bill following sentencing on January 28, 2005. Defen- • dant was advised of the State’s allegations, and entered a denial.

IsOn May 20, 2005, defendant withdrew his denial, and entered an admission to the habitual offender bill. The trial court accepted the admission. The judge vacated defendant’s original sentence and imposed an enhanced sentence of three years at hard labor, without benefit of probation or suspension of sentence.

FACTS

Detective Devin Pillow of the Jefferson Parish Sheriffs Office testified that he was on routine patrol in the early morning of May 28, 2004, when he was dispatched to the 2200 block of the Westbank Expressway in Harvey on a burglary call. He was notified that a burglar alarm had been activated at the B & G Mart, a convenience store and filling station.

Recalling that the business had been burglarized in the past, Pillow checked the outer perimeter for signs of a break-in. The officer saw no signs of entry to the building, and there were no breaches in the chain-link fence that bordered part of the property. Pillow left the premises.

Pillow testified that he was called to return to B & G Mart again about thirty minutes later, after an anonymous complainant telephoned the sheriffs office to report that two men were attempting to break into the business. The caller described the perpetrators as two black men; one dressed all in black, and the other wearing a white shirt, blue work style pants, and brown work boots.

Deputy Vernon Jones testified that on the morning of May 28, 2004, he was working a security detail at the Travel Lodge Hotel next to B & G Mart. He was sitting in his vehicle in front of the hotel at about 2:00 a.m. when he heard the call regarding the attempted break-in at B & G. He walked to the store and saw a black man wearing a white shirt, blue jeans and brown shoes, running away from the building. Jones called for assistance over his police radio.

1 ¡¿Deputy Nick Davidson testified that he received a description of the suspect over his police radio, and he reported to the area where the suspect was seen. He saw defendant running on Brown Street. He stopped defendant and took him back to B & G Mart. Deputy Davidson presented defendant to Deputy Jones, and Deputy Jones identified him as the man whom he had seen running from the business.

Detective Pillow testified that defendant was in custody by the time he made it back to the store. Detective Pillow and other officers secured the area behind the business and called the canine unit for assistance, but were unable to locate a second perpetrator. Detective Pillow testified that he transported defendant to the Jefferson Parish Correctional Center.

Stephanie Pham testified that she and her husband, Than Nguyen, own and operate B & G Mart. The business is enclosed by a six to seven-foot tall chain link fence. She testified that police tried unsuccessfully to contact her three times in the early morning hours of May 28, 2004, to notify her that the store’s burglar alarm had sounded. She did not learn of the incident until later that day. Pham said that the burglar alarm is on the inside of the store, but there is a sensor that detects when someone is outside the store trying to break in.

Pham testified that her business closes at 11:00 p.m. She saw the fence at closing time on the night leading up to the incident. There was no hole in the fence at that time. When she returned to the building in the morning, she found there was a hole in the fence. Pham testified that defendant was not employed by B & G Market, and that he did not have permission to be on the premises.

¡¿ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in allowing hearsay evidence to be admitted, violating Mr. Smothers’s Confrontation Clause rights.

PRO SE ASSIGNMENT NUMBER ONE

Inadmissible testimony.

DISCUSSION

Defendant argues his confrontation rights were violated when the trial court allowed Deputies Pillow and Jones to testify regarding the anonymous caller’s report of a crime in progress. Defendant raised the issue as follows in a pre-trial Motion in Limine:

The defendant, through counsel, moves this Court to prevent the district attorney from referencing or admitting into evidence any information from an anonymous source or concerned citizen that led the police to investigate the incident in question. Any reference to phone calls or comments by a concerned citizen or an anonymous source violates the deféndant’s Confrontation Clause rights. It is also inadmissible hearsay testimony. Code of Evidence 801, 802; Crawford v. Washington, [541 U.S. 36,] 124 S.Ct. 1354[, 158 L.Ed.2d 177] (2004).

The trial court denied defendant’s motion at the commencement of trial on August 31, 2004.

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to confront the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination.

Defendant argues that the testimony regarding the anonymous caller’s statements amounted to inadmissible hearsay, and that the trial court erred in [ ^allowing the testimony. Defendant complains that the clothing descriptions given by the caller constituted the backbone of the State’s case, and that his constitutional rights were violated when he was not allowed the opportunity to cross-examine that person.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801 C. Hearsay evidence is inadmissible except as specified in the Louisiana Code of Evidence or other legislation. LSA-C.E. art. 802. Such evidence is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability.

Defendant complains of the following testimony given by Detective Pillow on direct examination:

Q. And what was the reason that you went back out to that location?
A. We were again dispatched to the same location; an anonymous complainant advised that there was a burglary in progress at the business.
Q. Did you receive any information regarding any suspects?
A. Yes, sir. They had said that there were two black males ...
MS. WIGGINS [defense counsel]:
... I’m going to object, your honor. We need to approach.
THE COURT:
Ask him-—come on up.
(Bench Conference)
UMS. WIGGINS:
Your honor, I’m gonna object, because the information he’s getting ready to give now going to the police report was by uh, an officer Jones, not uh ...
MR. BORDELON [prosecutor]:
... No. He said about the anonymous call.
THE COURT:
He can testify to what he was looking for, so I’m going to allow that to occur.
MS. WIGGINS:
Please note my objection.
(End of conference)
Q. Deputy, did you receive any information from the anonymas (sic) caller regarding the suspects?
A. Yes, sir, we did. The anonymas (sic) complainant contacted the 911, the 911 cellular telephone, and advised that two black male suspects were attempting to break into the business.
Q. And were you provided a clothing description of the suspects?
A. Yes sir. They gave us one clothing description as all black: black shirt, black pants, black shoes. And the second description was: black male, white shirt, blue pants, work style pants and brown work boots.

Deputy Jones also gave testimony on direct examination about the anonymous tip:

Q. Okay. Did you receive any information of a possible break in at the B & G Mart?
A. Well, at that time I was sitting in my vehicle and Headquarters put it out as they had two guys was breaking in next door at the BG Mart. Put out that one guy was wearing a. white shirt with blue jeans and brown shoes.

ImAt trial, defense counsel objected to Detective Pillow’s testimony, but not to Deputy Jones’s. Defendant properly raised an objection to the admission of Deputy Jones’s testimony, however, through his Motion in Limine.

Traditionally, for purposes of the Confrontation Clause, all hearsay statements were admissible if (1) the declarant was unavailable to testify, and (2) the statement fell under a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” But the United States Supreme Court has overruled Roberts insofar as it applies to out-of-court statements that are “testimonial” in nature, in Crawford v. Washington, The Crawford Court held that the adequate “indicia of reliability” standard set forth in Roberts is too amorphous to adequately prevent the admission of “core testimonial statements that the Confrontation Clause plainly meant to exclude.”

The Crawford Court drew a distinction between testimonial and non-testimonial hearsay and noted that non-testimonial hearsay is admissible where both prongs of Roberts are satisfied, regardless of whether the defendant has had a prior opportunity to cross-examine the declarant. The Court held that testimonial hearsay statements may be admitted as evidence at a criminal trial only when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. The Court declined to provide a comprehensive definition of “testimonial,” observing that, “[w]hatever else the term covers, it applies ... to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.”

_LuNeither this Court nor the Louisiana Supreme Court has addressed the question of how to treat 911 emergency calls or other reports to government officials under Crawford. Federal appeals courts have taken differing views on the issue.

We need not reach the issue of whether the anonymous caller’s report to police was testimonial or non-testimonial in nature for the purposes of the Confrontation Clause because we find applicable portions of the statement inadmissible on other grounds. The State contends that the officers’ testimony was admissible to explain the officers’ actions. Police officers may refer to statements made to them by other persons involved in the case in order to explain their actions. Such statements, which also often fall under the res gestae exception, are admissible not to prove the truth of the statement being made, but rather are offered to explain the sequence of events leading to the arrest of the defendant and, as such, are not hearsay.

In State v. Broadway, the Louisiana Supreme Court commented on the admissibility of information received by a police officer:

Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. McCormick on Evidence § 249 (E. Cleary 3d ed.1984). Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. Id. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should notj^become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. G. Pugh, Louisiana Evidence Law 429-431 (1974).
When an out-of-court statement, such as information received by a police officer during an investigation of a crime, has both an impermissible hearsay aspect and a permissible nonhearsay aspect, the issue of relevancy becomes significantly interrelated with the hearsay issue. If the nonhearsay content of the statement has little or no relevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhear-say evidence should not be used as a vehicle to permit the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial.

The anonymous caller’s physical descriptions were not needed to show why the officers reported to B & G Mart. The officers’ testimony was used to show not only why the officers acted as they did, but more importantly, to bolster the State’s case as to identity. The photos, in evidence, that depict the area where defendant was first observed by Deputy Jones is an open parking lot area that appears to be used as a pathway and driveway, openly used by the general public in the area. It is not an isolated spot. The evidence shows that Smothers was not observed or apprehended in close proximity to the hole in the fence.

The issue here is comparable to one addressed by the Louisiana Supreme Court in State v. Arbuthnot, 367 So.2d 296 (1979). In that case, the high court reversed the defendant’s conviction on the basis of a police officer’s hearsay testimony regarding a non-testifying witness’ positive identification of defendant. Although another eyewitness identified the defendant, the Louisiana’ Supreme Court reasoned that the hearsay description of the non-testifying witness improperly bolstered the State’s identification testimony by its only identification witness. Id. at 298-299. In that case, the hearsay identification testimony was used |13to corroborate substantially the sole eyewitness testimony, whose testimony standing alone may not have been as readily believed by the jury.

In this case, both officers were notified of the offense and the descriptions by a police dispatcher, who assumedly received the information from the anonymous caller. Not only was the officers’ testimony hearsay; it was double hearsay. The improper use of hearsay evidence on a material contested issue of the case is reversible error.

The State argues that, even if the testimony at issue was hearsay, its admission was harmless error. The erroneous admission of hearsay testimony may be harmless error, and is therefore subject to harmless error analysis. The test for harmless error is whether the guilty verdict rendered was surely unattributable to the error.

The guilty verdict in this case was not surely unattributable to the erroneous admission of hearsay evidence. The State’s case against defendant was circumstantial. It appears that the jury used the physical description given by the tipster to infer that defendant was, at some point, inside the fence and attempting to break into the building. The clothing description was not harmless evidence because it was used to directly link the defendant to the crime.

Accordingly, defendant’s conviction and sentence are reversed, and the matter is remanded for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

      . In his pro se brief, defendant complains that “over 75%” of the appeal record he received was “altered, fabricated, and missing crucially important testimony.” There is no indication that defendant was not sent a photocopy of the entire appeal record. Moreover, defendant offers no support for his claims that witnesses gave perjured testimony.

        . Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Jackson, 03-883, p. 17 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La. 11/8/04), 885 So.2d 1118.

      . State v. Wille, 559 So.2d 1321, 1329-1332 (La.1990); State v. Smith, 03-866, p. 5 (La.App. 5 Cir. 11/25/03), 862 So.2d 240, 244, writ denied, 04-0050 (La.5/7/04), 872 So.2d 1078. See also, California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).

      . See, State v. George, 37,492, p. 19 (La.App. 2 Cir. 9/24/03), 855 So.2d 861, 874.

      . Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

        . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Crawford, 541 U.S. at 63, 124 S.Ct. at 1371.

      . Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.

      . Id.

      . The United States Supreme Court has recently granted certiorari in two cases in order to address the question of whether statements made in a 911 call and to responding officers are ''testimonial” within the meaning of Crawford. See Davis v. Washington, - U.S. -, 126 S.Ct. 547, 163 L.Ed.2d 458 (2005) (No. 05-5224); Hammon v. Indiana, - U.S. -, 126 S.Ct. 552, 163 L.Ed.2d 459 (2005) (No. 05-5705).

      . State v. Watson, 449 So.2d 1321, 1328 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985); State v. Ballay, 99-906, pp. 16-17 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, 127, writ denied, 00-0908 (La.4/20/01), 790 So.2d 13.

      . State v. Calloway, 324 So.2d 801, 809 (La.1975).

      . 96-2659, pp. 7-8 (La.10/19/99), 753 So.2d 801, 808, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

      . Id. at 299.

      . See, State v. Wille., 559 So.2d at 1331; State v. Hartwell, 03-1214, p. 10 (La.App. 5 Cir. 1/27/04), 866 So.2d 899, 906, writ denied, 04-0448 (La.6/25/04), 876 So.2d 832.

        .Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Morgan, 99-1895, p. 6 (La.6/29/01), 791 So.2d 100, 104. (per curiam).


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    In re GRAMERCY PLANT EXPLOSION AT KAISER (Lodged as Carl Bell, et al. v. Kaiser Aluminum and Chemical Corporation).
    Nos. 04-CA-1151 to 04-CA-1191.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Walter C. Dumas, Patti Durio Hatch, Dumas and Associates Law Corporation, Baton Rouge, Louisiana, Richard J. Arse-nault, Neblett, Beard & Arsenault, Alexandria, Louisiana, for Plaintiff/Appellee/2nd Appellant, Terrence Hayes, Individually and On Behalf of His Minor Child, Jocelyn Pearl Hayes.
    Caleb H. Didriksen, Diane R. Cosenza, Ronald J. Ventola, John J. Ruskin Didrick-sen Law Firm, Gonzales, Louisiana, for Plaintiffs/Appellees, Kaiser Alumina & Chemical Corporation/AXA Global Risks, et al.
    Louis C. Lacour, Jr., Raymond P. Ward, Adams and Reese LLP, Ernest P. Gieger, Jr., Andrew A. Braun, Gieger, Laborde & Laperouse, LLC, Robert E. Winn, Sharon Cormack Mize, Sessions, Fishman & Nathan, LLP, New Orleans, Louisiana, for Defendant/Appellant, Thomas & Betts Corp.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|sThis is an appeal in an action comprising numerous consolidated cases from the Twenty-Third Judicial District Court, St. James Parish, arising out of a massive industrial explosion at the Kaiser Aluminum plant in Gramercy on July 5, 1999. At issue on the appeal is the liability of one defendant, Thomas & Betts Corporation. We reverse the trial court’s grant of judgment notwithstanding the verdict and reinstate the jury’s verdict. We also reverse the trial court’s grant of a conditional new trial.

PROCEDURAL HISTORY

Originally there were 71 lawsuits arising from the Kaiser explosion, most of which were consolidated. The plaintiffs included not only persons directly injured in the plant, but also inhabitants of the surrounding area, as well as commercial entities and insurers seeking compensation for property damage and business losses, and/or indemnification for any liability to other claimants.

|4By the time of trial, all of the cases had been settled and/or dismissed except three: a suit by Kaiser Aluminum & Chemical Corporation (“Kaiser”) for its uninsured losses caused by the explosion; a personal injury suit by Kaiser employee Terrence Hayes (“Hayes”); and a suit by Kaiser’s subrogated reinsurers — AXA Global Risks (U.K.), et al. (collectively “AXA”) — for Kaiser’s insured losses.

The defendants in these suits included Power & Control Systems, Inc. and Power & Control Systems International, Inc. (collectively “PCS”), which designed the electrical system at the Kaiser plant; MEI Corporation, MEI Electrical, Inc., Merit Electrical & Instrumentation, Inc., and Merit Electrical, Inc. (collectively “MEI”), and Excel Group, Inc., formerly known as Excel Electrical & Instrumentation, Inc. (collectively “Excel”), electrical contractors that performed work at the plant; Thomas & Betts Corporation (“T & B”), manufacturer of adhesive mounts used to hold wiring in the plant; Adhesives Research, Inc. (“ARI”), manufacturer of the adhesive used in the adhesive mounts; Walter Hansley, a worker alleged to have been instrumentally negligent in events leading to the explosion; Manpower, Inc., Manpower International, Inc. (collectively “Manpower”), the employers of Hansley; and Schweitzer Engineering Laboratories, Inc., manufacturer of an electrical relay used at the plant.

| ¡¡Kaiser and AXA (hereafter “Kaiser/AXA”) alleged that the explosion was caused by a power failure that began about a half-hour before the explosion and that the power failure was caused by concurrent fault of PCS, Schweitzer, MEI, Excel, T & B, and ARI. Kaiser/AXA contended the root cause of the power failure was improper installation of a handful of one-inch-square adhesive-backed cable-tie mounting bases (commonly referred to as “sticky-backs”) inside high-voltage switchgear in an electrical building (Switch House 2) at the Kaiser plant.

Kaiser/AXA alleged the wiring (“CT leads”) that was routed through the sticky-backs came into contact with a high-voltage bus bar when several sticky-backs came loose from the cabinet wall to which they were attached. Kaiser/AXA claimed the contact degraded the insulation on both the CT leads and the bus bar, eventually leading to a short-circuit (technically, a phase-to-ground fault). The fault caused a chain reaction, in which circuit breakers tripped on all three loop feeders supplying power to the plant, resulting in a power outage.

Kaiser/AXA alleged that PCS was negligent in failing to design the electrical system so that a fault in Switch House 2 would not take the entire electrical loop off-line and, further, that PCS was negligent in failing to program the computerized Schweitzer electrical relays properly. They alleged Excel was negligent for using sticky-backs inside high-voltage switchgear, where their coming loose could cause an electrical fault, and that T & B was liable for failure to warn Excel about the limitations inherent in the sticky-backs.

In response, T & B filed incidental actions against Kaiser and AXA, alleging that Kaiser destroyed, altered, concealed or denied T & B access to evidence bearing on the cause of the power failure.

|fiThe trial commenced on October 8, 2001 before a twelve-member jury, and continued over the course of 27 days.

Briefly, the evidence established that the explosion evolved following a power failure in Switch House 2, caused when electrical wiring that had been run along the side of a switchgear cabinet fell onto a piece of high-voltage bus bar, resulting in a phase-to-ground fault that interrupted power. Although Kaiser had a system that was supposed to isolate such power failures so that the whole plant would not be shut down, the system failed. Employees took actions intended to prevent overheating of the large towers (known as flash tanks) that process bauxite into alumina (a production phase in producing aluminum). However, the actions failed because some of the equipment was not operating properly. Within a short time the tanks overheated and exploded.

On November 19, 2001, the jury returned a verdict that absolved Schweitzer, T & B, and Hansley/Manpower of fault, but found that Kaiser, MEI, and PCS were at fault, their fault was a legal cause of the explosion, and apportioned their fault as follows: Kaiser, 75%; MEI, 5%; PCS, 20%. The jury awarded damages to Terrence Hayes in the amount of $20,307,000.00, but denied damages to his daughter for loss of consortium, and denied damages to Kaiser, and to its insurers (AXA, et al.).

After the jury returned its verdict, Kaiser, AXA and Hayes filed motions for judgment notwithstanding the verdict (JNOV) and, alternatively, for new trial. The trial court granted JNOV in favor of Kaiser/AXA and against T & B, and also granted the motion for new trial conditionally, in the event the JNOV is reversed on appeal.

In the JNOV, the court found T & B to be 25% at fault, reduced Kaiser’s allocation of fault to 60%, reduced the fault of PCS to 10%, and maintained the Injury’s fault allocation of 5% to MEI. The court also granted JNOV as to damages, awarding Kaiser/AXA combined damages of $335 million, $122 million less than the $457 million requested by Kaiser/AXA. Finally, the court provisionally granted Kaiser/AXA’s motion for new trial, in the event the JNOV is be reversed on appeal, and ordered that the new trial be held in a different venue.

The JNOV maintained the jury’s finding in favor of Hayes and also upheld the amount of the damage award to him.

ISSUES ON APPEAL

Originally both T & B and Hayes appealed; Hayes, however, dismissed his appeal and only the issues raised by T & B are before us.

On appeal T & B makes the following-assignments of error:

1. The trial court usurped the jury’s fact-finding function when it ignored substantial record evidence supporting the jury’s verdict, and granted Kaiser’s and AXA’s motion for judgment notwithstanding the verdict.
2. The trial court erroneously ordered a (conditional) new trial despite the absence of any prejudicial irregularity in the course of the trial.
3. The trial court’s grant of a change of venue (in the event of a new trial) is unsupported by the record and is inconsistent with La.C.C.P. art. 122.
4. The trial court erred by failing to exclude damages to non-Kaiser entities from its award and by failing to reduce the award to account for depreciation and for operational bet-terments inherent in the rebuilt plant.

LAW AND ANALYSIS

JNOV

T & B contends the trial court committed legal error by granting a JNOV against T & B after the jury exonerated T &B.

lsThe Louisiana Products Liability Law, the basis for liability of T & B, provides in pertinent part:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

La.R.S. 9:2800.57.

In granting the JNOV, the trial court gave extensive written reasons within .the judgment. He stated, first, the court had denied the plaintiffs’ motion for a directed verdict against T & B at the close of trial because “the Court was of the opinion that it could be a jury question whether or not the power outage was a substantial cause in fact of the explosion.”

There was no question in the court’s mind as to whether reasonable and fair minded men would find that Thomas & Betts had failed in its duty as set out under the LPLA by its complete failure to warn. The jury did find . that the Thomas & Betts product failed in service, as is evident by their finding that the acts of Excel/MEI and PCS were legal causes of the accident and explosion. There is no other reasonable explanation for the attribution of fault to Excel/MEI and PCS. Having found that the power outage was cause by the failure of the Thomas & Betts product (the only work Excel/MEI performed that could be related in any way to the accident and explosion) this court believes the jury had to attribute fault to Thomas & Betts, whose product failed to satisfy the minimum requirements of products in Louisiana. As the jury failed to fulfill their responsibility to require this manufacturer to comply with its duty, this Court will rectify that problem. '

| aFinding that the jury erred, ,the court held that “the facts, inferences and the LPLA standards ... point so favorably to the conclusion that Thomas & Betts bears fault for this accident and that Kaiser/AXA suffered substantial damages, that reasonable men coulij not reach the decision made by the jury,” and granted the motion for JNOV, listing these reasons:

With respect to liability, the court finds , that Kaiser, Thomas & Betts, Excel/MEI and'PCS all bore fault for this event. The court finds that Kaiser bore the majority of the fault through the acts of its employees and'through its failure to have its overpressure safety systems fully operational on the day of the accident, and assigns Kaiser 60% of the fault for the overall event. Thomas & Betts products were amply proven to be defective and not in compliance with the LPLA, and the power outage was acknowledged by -the jury to be a causative factor in the overall event. I agree with the jury finding that the electrical outage was a substantial causative factor in the overall event. I assign the next highest responsibility for the overall accident to Thomas & Betts, to which I assign 25% fault. Thomas & Betts had specific - knowledge with respect to suitability and use of their product which they withheld from the public. It is obvious that marking a product “for temporary use only” would reduce sales of that product. The court finds that Thomas & Betts made a choice to enhance its sales instead of properly warning the public about its product limitations, of which it was well aware. Excel/MEI, the electricians who installed the Thomas & Betts product, were found by the jury to have borne 5% of the fault for their use of the T & B product, which conclusion I will not disturb. PCS, the engineering overseers of Excel/MEI and programmer of the Schweitzer relays for Kaiser was found by the jury to bear 20% of the fault for this accident. As Thomas & Betts provided the engineering diagram to any of its customers who asked, which shows the intended use of the product to be identical to the manner in which Excel/MEI and PCS used it, I will reduce the fault of PCS to 10%. I concur with the jury, and do not find Schweitzer Engineering Labs to have borne any fault for this particular power outage or accident. I also concur with the jury and do not find Walter Hans-ley/Manpower to have borne any fault to this particular accident.

110A motion for JNOV may be granted on the issue of liability or on the issue of damages or on both issues. La. C.C.P. art. 1811(F). The strict criteria for granting judgment notwithstanding the verdict (JNOV) is predicated on the rule that when there is a jury, the jury is the trier of fact. Smith v. State, Dept. of Transp. & Development, 04-1317, 04-1594 (La.3/11/05), 899 So.2d 516.

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

Trunk v. Medical Center of Louisiana at New Orleans, 04-0181, p. 4 (La. 10/19/04), 885 So.2d 534, 537, citing Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99; see also VaSalle v. Wal-Mart Stores, Inc., 01-0462, p. 11 (La.11/28/01), 801 So.2d 331, 338-39.

In reviewing a JNOV, an appellate court must first determine whether the district judge erred in granting the JNOV by using the above-mentioned criteria in the same way as the district judge in deciding whether to grant the motion. Thus, the appellate court must determine whether the “facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” If the appellate court determines that reasonable persons might reach a different conclusion, then the district judge erred in granting the motion and the jury verdict should be reinstated. [Citations omitted.]

Trunk, 04-0181 at p. 5, 885 So.2d at 537.

Inin ruling on a motion for a judgment notwithstanding the verdict (JNOV), the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party; this rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact. Martin v. Heritage Manor South Nursing Home, 00-1023 (La.4/3/01), 784 So.2d 627.

T & B asserts a reasonable jury could find Excel negligent for failing to comply with Kaiser’s general specifications governing Excel’s work. T & B states there is ample basis for a reasonable jury to assign fault to Excel and PCS without assigning fault to T & B. For example, the jury could have decided Excel was negligent in failing to understand or follow Kaiser’s general specifications for the job, which required the CT leads to be enclosed in flexible metal conduit. (It was uncontested that had conduit been used, the power failure would not have occurred.)

In addition, T & B argues, the jury could reasonably expect that Excel, a professional electrical contractor, already knew or should have known about the obvious limitations of a peel-and-stick wire mount and the inappropriateness of using such a product in a high-voltage cabinet.

Further, negligent programming of the Schweitzer relays by PCS escalated a fault in a single switch house into a plant-wide power failure.

Finally, T & B urges that the jury’s reasonable allocation of fault mandates reversal of the JNOV. Specifically, T & B avers, the 25% fault assigned to the electricians (PCS & Excel) and the 75% fault allocation to Kaiser are reasonable allocations of fault.

With respect to T & B’s liability, the evidence was that William Philyaw bought a package of T & B mounting bases, which he had used on numerous prior | ^.occasions. He used these adhesive-backed plastic bases to attach low-voltage electrical control wires to the wall in a switchgear cabinet at the Kaiser plant. Philyaw was an employee of electrical contractor Excel.

By July 5, 1999, 13 months after they were installed, all of the T & B mounts in the switchgear cabinet had fallen off the wall and the wires they previously supported were loose and sagged against a high-voltage bus bar. The resulting phase-to-ground fault ultimately resulted in the explosions and catastrophic damage.

Philyaw said at trial he would not have used the T & B bases if T & B had supplied warnings that the bases were not intended for permanent installations. T & B points out, however, that Philyaw must have known that the sticky-backs might come loose over time, because he said he tried to route the wires so that if for some reason the wire came off the wall, it would not contact the bus bar.

Philyaw denied knowing the sticky-backs might loosen, but a reasonable jury could find his actions indicated otherwise. Philyaw admitted he had seen a few sticky backs come off walls before.

There was also testimony that Kaiser’s engineer, Ken Scannapiego, knew that sticky-backs may detach from the surface, and that Kaiser’s electrical maintenance superintendent, John Scavona, would not have used the product in a high voltage application.

It is the jury’s prerogative to assess witness credibility. In ruling on a motion for JNOV, the trial court may not evaluate credibility, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Joseph v. Broussard Rice Mill, Inc., 00-628, p. 5, 772 So.2d at 99.

haThe issue for the trial court was whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict. Despite the trial court’s statement, we conclude that reasonable persons could arrive at a contrary verdict, as this jury did.

The jury was allowed to view and handle sticky-backs during the trial. In looking at them, the jury could decide for themselves whether the limitations of the product — a one-inch square piece of plastic, with three channels on the top surface and an adhesive-backed foam pad on the back surface — should have been obvious to Excel and its employee, Philyaw, as well as to Kaiser, which inspected the work done by its electrical contractors.

It is reasonable for the jury to decide that a person — in particular, a professional wiring installer — should perceive the obvious limitations of the item. Further, it is reasonable for the jury to decide that Phi-lyaw’s actions demonstrated awareness of the risk.

Further, regarding the argument that T & B’s failure to include a warning about temporary use versus permanent use violated the LPLA, the adequacy of any particular warning is a question for the jury. Reilly v. Dynamic Exploration, Inc., 571 So.2d 140, 145 (La.1990). The testimony by the Kaiser/AXA expert, Jerry Householder, and T & B’s expert, Jerry Purs-well, directly conflicted. Purswell compared the sticky-back to a nail — another simple fastening device that can be used in temporary or permanent settings, and which generally comes with no warnings. It was the jury’s province to decide which witness’s testimony to credit. A reasonable jury could have decided that a sticky-back, like a nail, does not need the kinds of warnings that Kaiser/AXA argues for.

Additional questions for the jury decision were proximate cause and allocation of fault. La.R.S. 9:2800.54 provides,

|UA. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from á reasonably anticipated use of the product by the claimant or another person or entity.
B. A product is unreasonably dangerous if and only if:
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57....

When there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. Whether the defendant’s conduct was a substantial factor in bringing about the harm, and, thus, a cause'-in-fact of the injuries, is a factual question to be determined by the factfinder. Theriot v. Lasseigne, 93-2661, p. 5 (La.7/5/94), 640 So.2d 1305, 1310.

The jury here may reasonably have allocated fault according to the parties’ control over, or the role played by, the instrumentalities that caused the explosion. Kaiser (assigned 75% fault by the jury) controlled the entire plant, including the electrical system, the vessels that exploded, and the non-functioning pressure-relief systems that directly caused the explosion.

PCS (assigned 20% fault by the jury) erroneously programmed the Schweitzer relays, which was a direct cause of the plant-wide power failure. However, PCS’s failure was an indirect, less proximate cause of the explosion compared to Kaiser’s misconduct.

The jury allocated only 5% fault to Excel, and reasonably may have found that Excel’s wiring in the switch house was an indirect cause of the power failure and that intervening, independent negligence by PCS was required to turn the electrical fault in Switch House 2 into a large-scale power failure, and that much |1F;greater intervening negligence by Kaiser was required to turn the power failure into an explosion.

Unlike Excel, T & B could not have known the risk created by the proximity between the CT leads and the high-voltage bus bars. Further, since Philyaw testified he never saw any of the warnings or instructions accompanying the stick-backs, the jury could reasonably find that any alleged deficiency in the warnings or instructions was not a proximate cause of any of the events.

Even when a plaintiff proves that the lack of an adequate warning or instruction rendered a product unreasonably dangerous, a presumption arises that the user would have read and heeded such admonitions. Bloxom v. Bloxom, 512 So.2d 839, 850 (La.1987). The presumption, may, however, be rebutted if the manufacturer produces contrary evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances. Id.

Considering all the above factors, we conclude that “reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.” Trunk, 04-181, p. 4, 885 So.2d at 537. Accordingly, we find the trial court erred in granting the motion for judgment notwithstanding the verdict.

New Trial

In granting the conditional motion for new trial, the trial court included the following written reasons within the judgment:

I have the right to grant a new trial under purely discretionary grounds under CCP art. 1973, which I would do if I did not grant the JNOV, or would do in the- alternative. In retrospect, there were multiple occasions during the six weeks of trial when it may have been appropriate to grant some of the Motions for Mistrial that were orally argued. Virtually all of the lawyers made mistakes at one point or another during this over six week trial.
Jig * * *
If the JNOV is overturned by the Court of Appeal, fundamental fairness, the difficulty in picking a jury that does not have pre-conceived ideas about Kaiser, and the errors and irregularities that occurred during this lengthy trial mandate a new trial.
I note that CCP art. 1813(E) also provides a potential basis for a new trial, as the special verdict form as completed by the jury contained irreconcilable answers.
I have the right to grant a new trial if the judgment is contrary to law and/or to evidence under CCP art. 1972. I would do so under this article as well. Some of the reasoning for granting a new trial under CCP art. 1972 is outlined by the reasons in support of the JNOV, and the other reasoning outlined above.

T & B contends the trial court erred by granting plaintiffs’ alternative motion for a new trial in a new forum, because the jury’s fair interpretation of the evidence precludes new trial under La.C.C.P. art. 1972(1) and new trial pursuant to La. C.C.P. art. 1973 is not warranted because the verdict is not a miscarriage of justice. Further, T & B asserts, there is no basis for a change of venue.

A party may join a motion for new trial with a motion for judgment notwithstanding the verdict, or may pray for a new trial in the alternative. La.C.C.P. art. 1811(A)(2). If the court grants the motion for judgment notwithstanding the verdict, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. La.C.C.P. art. 1811(C)(1). If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise. La.C.C.P. art. 1811(C)(2).

A motion for a new trial requires a less stringent test than for a judgment notwithstanding the verdict (JNOV), as such a determination involves only a new 117trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84.

A conditional grant of a new trial is not to be used to give the losing party a second bite at the apple without facts supporting á miscarriage of justice that would otherwise occur. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94.

In several recent cases, our supreme court has ruled that when a JNOV is reversed on determination that the jury’s verdict was reasonable in light of the evidence presented, the conditional new trial also should be reversed. We find that reasoning applicable here, and conclude the trial court abused its discretion in granting the conditional new trial.

Since we have determined the trial court erred in granting the conditional new trial, the issue of change of venue is moot. Accordingly, we need not address it.

DAMAGES

Our reversal of the JNOV also eliminates the trial court’s award of damages to Kaiser; hence, we need not address T & B’s assignment of error on this issue.

DECREE

For the foregoing reasons, the judgment of the district court is reversed and the jury verdict is reinstated. Costs of this appeal are assessed to the appellees, Kaiser and AXA.

REVERSED; VERDICT REINSTATED.

      .After consolidation the district court assigned the suits the master case name of In re: Gramercy Plant Explosion at Kaiser. When the case was lodged on appeal, pursuant to this Court's internal policy it was filed under the name of the first of the consolidated cases, Carl Bell v. Kaiser Aluminum, et al., No. 04-CA-1151 (23rd Judicial District Court No. 25,975). For uniformity of designation in the matter, however, we are ordering that the master case name be adopted as the name of the matter on this Court’s records. The order is being issued in conjunction with release of this opinion.

      . Most of the personal injury claimants were part of a class action, but others opted out of the class action to pursue their individual suits.

      . Kaiser Aluminum v. Power & Control Systems, Inc, et al., No. 04-CA-1171 (23rd Judicial District Court No. 26,821).

      . Terrence Hayes v. MEI Corporation, et al., No. 04-CA-1184 (23rd Judicial District Court No. 26,861).

      . AXA Global Risk (U.K.), et al. v. Thomas & Betts Corporation, et al., No. 04-CA-1187 (23rd Judicial District Court No. 26,865). The other reinsurers collectively included under the designation "AXA” are Allianz Insurance Company; Certain Underwriters at Lloyd's, London, individually subscribing to certain facultative reinsurance contracts issued to Trochus Insurance Company, Ltd., Compagnie Transcontinentale De Reassurance, Houston Casualty Company, Lexington Insurance Company, Munich Reinsurance Company, National Union Fire Insurance Company, Qatar General Insurance and Reinsurance Company, Q.B.E. International Insurance, Ltd., Sorema Insurance Company, Swiss Reinsurance Company, Winterthur International Insurance Company, and Zurich Reinsurance Company.

      . Kaiser went through bankruptcy during the course of this suit, and the bankruptcy court allowed AXA to be subrogated to all Kaiser's claims. Hence, they are for practical purposes one party, "Kaiser/AXA.”

      . Excel is also referred to as "Excel/MEI” because it either merged with or was bought by MEI.

      . Trunk,. 04-181, p. 11, 885 So.2d at 540 ("Because we have previously concluded that the jury's verdict was reasonable in light of the evidence presented, we find that plaintiff is not entitled to a new trial.”); see also, VaSalle, 01-462, p. 18, 801 So.2d at 342; Davis v. Witt, 02-3102, p. 23, 851 So.2d at 1134 ("When any fair interpretation of the evidence supports the jury’s verdict, the grant of a new trial must be reversed.”). ■


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Antoinette DUCOTE.
    No. 05-KA-910.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth' Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| j>The defendant, Antoinette Ducote, was charged by bill of information with operating a vehicle while intoxicated (“DWI”), third offense, in violation of LSA-R.S. 14:98(D). The bill of information alleges that, on January 25, 2004, the defendant operated a motor vehicle while intoxicated (DWI) after having been previously convicted of DWI on March 13, 2000 and August 1, 2001 in Jefferson Parish. The defendant pled not guilty at arraignment. After waiving her right to a jury trial, the defendant proceeded to trial on February 2, 2005, before the trial judge, who found her guilty as charged.

On February 28, 2005, the trial judge sentenced the defendant to three years at hard labor. ' The trial judge suspended 2 years and 11 months of the sentence, placed the defendant on active probation for 3 years, and ordered her to serve 30 days in parish prison without benefit of parole, probation or suspension of Lsentence. The following special conditions of probation were imposed: court costs; a $100 commissioner’s fee, a $150 fee to the I Can Drug Court program, and a $2,000 fíne; seizure and sale of the vehicle defendant was driving at the time of offense; installation of a functioning interlock device on any vehicle operated by the defendant in the future; and enrollment in driving improvement classes. The trial court further ordered the defendant to be admitted to an inpatient facility for substance abuse treatment for not less than four weeks, followed by outpatient treatment, if necessary, up to 12 months. Thereafter, the defendant was ordered to serve the remainder of her sentence on home incarceration. This timely appeal follows.

FACTS

On January 24, 2004, Angelina Constan-tino was driving on the Westbank Expressway in Gretna at approximately 11:00 p.m. At the corner of Evergreen Street, the defendant’s truck rear-ended Ms. Con-stantino’s vehicle, but failed to stop. Ms. Constantino tried to attract the defendant’s attention so that she would stop, but the defendant looked angry and kept driving. Ms. Constantino dialed 911 and followed the defendant as she turned on Stumpf Boulevard. The defendant went to a convenience store, bought something, then continued driving on Stumpf. Ms. Constantino continued to follow the defendant and saw her stop at an apartment complex on Holmes, where she appeared to exchange money with a black male. The defendant ran several stop signs, erratically changed lanes, used the opposite signal for the direction in which she turned, and drove under the speed limit. The defendant then turned on Butterfly Circle in Terrytown, stopped her vehicle on a side street, and appeared to fall asleep.

| ¿Ms. Constantino explained that she was persistent in her attempts to stop the defendant because it appeared to her that the defendant was intoxicated. She testified that her seven-year-old grandchild was killed in a DWI accident, and she wanted to ensure that the defendant did not hurt anyone while driving. •

At approximately 11:25 p.m., Detective David Randall of the Jefferson Parish Sheriffs Office was dispatched to South Butterfly Circle in.Terrytown in response to a report of a reckless driver. Officer Randall observed that th.e suspected vehicle, later identified as the defendant’s vehicle, was parked partially on the sidewalk and on the roadway. He approached the defendant, who was attempting to light a cigarette. She took a long time to provide her driver’s license and proof of insurance. Officer Randall testified that she fumbled with the paperwork and smelled faintly of alcohol. He asked the defendant to exit the vehicle, and shined his light under the seat. Upon observing what appeared to be the handle of a gun, he detained the defendant in handcuffs. The defendant told Officer Randall that she had consumed half of an alcoholic beverage. Officer Randall noticed that she had slurred speech, her eyes seemed glazed, and she was very unsteady when walking and standing. She also told Officer Randall that she had taken some medication, but did not specify the type of medicine. Officer Randall suspected that the defendant was intoxicated and notified headquarters to call the State Police for further investigation.

Trooper Rozigas of the Louisiana State Police arrived on the scene at 11:50 p.m. She noticed that the defendant was staggering slightly and had a faint odor of alcohol on her breath. The 'defendant consented to a field sobriety test, but performed poorly on each part. The defendant denied that she was taking any medication, but told Trooper Rozigas that she had surgery on her ankle and she had | ssome back pain. After her poor performance on the test, Trooper Rozigas placed the.defendant under arrest and advised her of her rights. At the correctional center, the defendant agreed to submit to an Intoxilyzer. breath test. Prior to taking the test, the defendant advised Trooper Rozigas that she was taking Soma, Lorcet and Xanax for her back and ankle. She also acknowledged that she had consumed one-half of a mixed alcoholic beverage. Upon taking the In-toxilyzer test, the defendant’s blood alcohol reading was .005%.- She refused to provide a urine sample for further testing. A videotape of the field sobriety test was played for the court and introduced into evidence.

The State introduced certified copies of the defendant’s predicate convictions into evidence, and the defendant stipulated that she pled guilty to both convictions. The defendant introduced her medical records, but she did not testify at trial.

DISCUSSION

On appeal, the defendant claims that her three-year sentence is excessive, because the trial judge failed to justify her sentence with reasons pursuant, to LSA-C.Cr.P. art. 894.1. The defendant only challenges the length of her sentence as excessive. She does not challenge any other terms of the sentence. The State responds that the defendant is limited to a constitutional review of her sentence because she did not file a motion to reconsider sentence. The State further asserts that the record supports the sentence.

In this case, defendant did not make or file a motion to reconsider sentence. This Court has recognized that the failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243. The defendant is not entitled to a review of her argument concerning the trial court’s noncompliance with Article 894.1, since she did not raise that issue in a motion to reconsider sentence. See, State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 816. Accordingly, we review the defendant’s sentence for constitutional exces-siveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992). In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether, the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id. at 880. The trial, judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192.

Under LSA-R.S. 14:98(D), a third DWI conviction is punishable by imprisonment with or without hard labor for not less than one year nor more than five years and a fine of $2,000. Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

In sentencing the defendant, the trial judge stated as follows:

THE COURT:
Ms. Ducote, on February 2nd, 2005 you went on trial before this Court on the charge of driving while intoxicated third offense, a violation of Louisiana Revised Statute 14:98. The Court found you guilty as charged with regard to that offense at the conclusion of the trial. You are here for sentencing today.
And based upon the Court’s finding of guilt as to driving while intoxicated third offense, the Court does hereby sentence you to serve three years at hard labor in the custody of the Department of Corrections of the State of Louisiana in accordance with the provisions of Louisiana Revised Statute 14:98, Paragraph D. All but 30 days of that sentence of imprisonment is suspended. The 30 days will be without the benefit of probation, parole or suspension of sentence.

Thereafter, the court imposed the conditions of the sentence previously mentioned.

According to the commitment, the defendant was 43 years old at sentencing on February 28, 2005. She has two prior DWI convictions, one in 2001 and one in 2000. Obviously, the defendant has a substance abuse problem with which she has not come to terms. In her brief, the defendant seeks to excuse her conduct by the fact that her intoxication was caused by prescription drugs combined with one-half of an alcoholic beverage. However, the trial judge was aware of all of this information, after having just heard the case less than 30 days before sentencing. In his reasons for finding the defendant guilty, the trial judge stated that the defendant’s medical records indicate that she had been prescribed prescription medication a month before the incident and that the defendant admitted to taking lathis medicine. The trial judge specifically found the defendant’s impaired condition was not due to her medical condition. Rather, the judge found that she was under the influence of a combination of alcohol and the drugs that she was taking. Further, the trial judge noted that the defendant had bumped Ms. Constantino’s vehicle and that Ms. Constantino had reported observing the defendant driving erratically.

Considering the testimony, evidence, and the applicable jurisprudence, we find that the trial judge did not abuse his discretion and that the defendant’s sentence is not excessive. Accordingly, this assignment of error is without merit.

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. After reviewing the record before us, we find no errors that require corrective action by this Court.

DECREE

For the reasons set forth above, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . According to the record, the defendant's probation was revoked on August 25, 2005 and her sentence was made executory. However, the probation revocation is not before this Court.

      . It was later determined that the weapon was a pellet gun.

      . Trooper Rozigas spelled the medication as "Zantac” on the interview form. She said that the defendant said "Xanax,” and when she asked how to spell the word, the defendant spelled "Zantac”, a stomach medication.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Donnie FAZANDE.
    No. 05-KA-901.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2The Jefferson Parish District Attorney filed a bill of information on October 10, 2003, charging defendant, Donnie Fazande, with distribution of marijuana in violation of LSA-R.S. 40:966(A). He pled not guilty and filed several pre-trial motions including motions to suppress the evidence and identification, which were denied after a hearing. The matter proceeded to trial on September 20, 2004. After a two day trial, the jury found defendant guilty as charged. On November 3, 2004, the trial court sentenced defendant to fifteen years with the Department of Corrections. Defendant now appeals.

The state subsequently filed a multiple offender bill of information alleging defendant to be a fourth felony offender based on a prior conviction for unauthorized entry of an inhabited dwelling and two drug convictions. Pursuant to a plea agreement, defendant admitted to being a second felony offender and was sentenced to twenty years at hard labor.

\,FACTS

On March 21, 2003, Deputy Victor Howard, working as an undercover agent for the Jefferson Parish Sheriffs Office, came into contact with defendant while attempting to purchase narcotics. According to Deputy Howard, an unidentified older man instructed him to drive down to the corner where defendant was standing on the sidewalk. Deputy Howard gave the older man money at which time the older man met with defendant on the sidewalk and exchanged the money for marijuana. The older man then returned to Deputy Howard’s vehicle and gave him the marijuana. Defendant never approached Deputy Howard’s vehicle, which was equipped with audio and video recording devices, but rather remained on the sidewalk during the entire transaction.

Deputy Howard encountered defendant a second time six days later on March 27, 2003. During that encounter, Deputy Howard engaged in a drug transaction directly with defendant although the transaction occurred away from Deputy Howard’s vehicle. Deputy Howard testified that he approached defendant, after remembering him from the previous transaction, and asked defendant if he could buy some herb. Defendant instructed Deputy Howard to get out of his car at which time defendant gave Deputy Howard four bags of marijuana. Deputy Howard explained that most people refuse to come to the driver’s side window because they suspect the police. Upon returning to his vehicle, Deputy Howard gave a description of defendant and noted it was the same person with whom he dealt on March 21, 2003.

Detective Eric Dufrene of the Jefferson Parish Sheriffs Office entered the area after the March 27, 2003 drug transaction and located defendant, who matched the description given by Deputy Howard of the person who sold him the |4drugs. Detective Dufrene approached defendant and filled out a field interview card after which defendant was released.

On April 1, 2003, Deputy Howard identified defendant in a photographic lineup as the person who sold him drugs on both March 21, 2003, and March 27, 2003.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant argues that Deputy Howard was impermissibly allowed to testify on the ultimate issue of defendant’s guilt. Defendant contends the trial court erred in allowing the prosecutor to present a hypothetical, virtually identical to the facts of the present case, and asking Deputy Howard to conclude whether a crime had been committed. Defendant maintains an expert cannot express an opinion as to the guilt or innocence of the accused.

LSA-C.E. art. 704 provides that “... an expert witness shall not express an opinion as to the guilt or innocence of the accused.” Such prohibition applies even if the opinion is solicited through the presentation of a hypothetical situation. State v. Deal, 00-434 (La.11/28/01), 802 So.2d 1254, 1261, cert, denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).

In the present case, although defendant was only charged with the March 27, 2003 incident, Deputy Victor Howard testified regarding both incidents involving defendant. During his testimony, the state played two videotapes, one dated March 21, 2003, and one dated March 27, 2003. While the March 27, 2003 videotape was being played, the state asked Deputy Howard a few questions. The state first asked if defendant recognized Deputy Howard from several days earlier to which Deputy Howard affirmatively responded. The state then tried to clarify a statement Deputy Howard had made on the videotape by asking, “Now, Deputy, when you’re driving up to where Donnie Fazande is standing you say: T think that’s the person that sold | Bme the other day.’ Correct?” Deputy Howard agreed. The state proceeded to pose a hypothetical: “... [i]f I give Miss Senner this — If I give Miss Senner that marijuana to give to you, have I committed a crime?.... Have I distributed marijuana to you?” Defendant objected but his objection was overruled. Deputy Howard responded affirmatively.

As noted by the state in its appellee brief, this hypothetical did not parallel the crime with which defendant was charged but rather mirrored the facts of the March 21, 2003 incident. Thus, by answering the hypothetical, Deputy Howard did not testify as to the ultimate issue of defendant’s guilt regarding the charged offense.

Additionally, when considered in context of the entire trial, the state’s hypothetical appears to be an attempt to overcome defendant’s suggestion in opening statement that there was an identification problem. In particular, defense counsel told the jury there were two suspects involved in the March 21, 2003 transaction. He described the actual seller as an older black man, which the jury would see on the videotape. Defense counsel then suggested there was a problem because “Womack” (a/k/a Deputy Howard) stated that the person who sold him the drugs on March 27, 2003, was the same person who sold him the drugs on March 21, 2003, which was not defendant.

In his testimony, Deputy Howard stated defendant was standing on the sidewalk during the March 21, 2003 transaction. Deputy Howard explained that he gave money to a third person, who then gave the money to defendant, who then gave marijuana to the third person, who then gave the marijuana to Deputy Howard. When Deputy Howard encountered defendant on March 27, 2003, he stated defendant was the same person who sold him marijuana on March 21, 2003. In an apparent attempt to clarify the identification issue, the state asked Deputy | ^Howard whether a person is “selling drugs” if he hands marijuana to someone and that person gives it to someone else.

Deputy Howard’s testimony did not express an opinion of defendant’s guilt on the charged offense, as the hypothetical did not parallel the charged offense. Rather, the hypothetical was presented to clarify an identification issue raised by defendant. Thus, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant asserts that the trial court improperly restricted his right to present a defense. He argues that his constitutional right to cross-examination was improperly restricted by the trial judge’s repeated defense of Deputy Howard’s credibility. Defendant contends the trial judge repeatedly vouched for Deputy Howard’s credibility and expressed his resentment for defense counsel’s questions that suggested Deputy Howard was anything less than credible. Defendant asserts the trial judge’s personal comments effectively restricted his cross-examination of Deputy Howard.

During defense counsel’s cross-examination of Deputy Howard, the jury was removed at the state’s request to discuss an objection the state had to a line of questioning defense counsel was developing relating to a report of an earlier unrelated drug deal Deputy Howard was involved in on March 21, 2003. At one point, the trial judge noted defense counsel’s disrespectful attitude towards the court. The parties continued to discuss the relevance of the alleged existence of an unrelated drug deal and how it impacted the identification issue in the present case when the trial judge stated:

And let me just state on the Record that this police officer testified before me before in this case and in other cases, and I have no reason to doubt his credibility or that |7he is misrepresenting anything to the Court or has ever said anything that’s incorrect to this Court. And I resent your insinuations to the contrary in my presence about this police officer.

Defense counsel responded by asking, “You want me not to question his credibility?” In response, the trial judge instructed the jury to be brought back in and told defense counsel he could ask the witness about whether he took a Polaroid picture in this particular case.

The jury was brought back in and, according to the transcript, cross-examination continued for fourteen pages. When defense counsel started to question Deputy Howard about the March 21, 2003 case, the state objected and asked for a bench conference. At the bench conference, defense counsel explained he intended to ask Deputy Howard whether he knew defendant was not being prosecuted for the first transaction. The trial judge asked defense counsel the relevance of the inquiry. Defense counsel suggested it was suspect for the state not to prosecute the March 21, 2003 incident if it had enough faith in Deputy Howard’s identification of defendant as the perpetrator. The trial judge replied, “That is the most ridiculous statement I’ve ever heard,” and sustained the objection. Thereafter, defendant moved for a mistrial on the basis the jury overheard the judge’s comment. The motion for a mistrial was implicitly denied, without objection, when the trial judge stated the comment was made at a bench conference out of the hearing of the jury and instructed defense counsel to ask his next question.

Defendant relies upon these two incidents to support his contention that his cross-examination of Deputy Howard was improperly curtailed. In the present case, defendant failed to object to the judge’s remarks at trial. He also failed to object to the trial court’s denial of his motion for mistrial which was based on a |scomment by the judge. Therefore, defendant has waived his right to raise the propriety of the judge’s remarks on appeal. LSA-C.Cr.P. art. 841. See State v. Johnson, 03-620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 188, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849, where this court found the defendant had failed to preserve the issue of the trial judge’s improper comments on the value of certain defense testimony because the defendant failed to object to the comment at trial.

Moreover, even had defense counsel properly objected, there is no merit to defendant’s arguments. First, both remarks were made during bench conferences, one of which was conducted in the absence of the jury. There is no indication in the record that the jury overheard the trial judge’s second remark other than defense counsel’s assertion that they may have heard. While a trial judge’s disparaging remarks or intemperate criticism of defense counsel may constitute reversible error, the effect of the improper comments must be such so as to have adversely influenced the jury against defendant and contributed to the verdict. State v. Hubbard, 97-916 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, 1105, writ denied, 98-0643 (La.8/28/98), 723 So.2d 415. There is nothing in the record that shows the jury heard the comments or that the comments influenced the jury and contributed to the jury’s verdict against defendant.

Second, defendant fails to state how his cross-examination of Deputy Howard was curtailed by the trial judge’s comments about Deputy Howard’s credibility. Defendant only argues the judge’s remarks had a “chilling effect” on his cross-examination and suggests that as a result of the judge’s remarks he did not fully cross-examine Deputy Howard. However, defendant fails to specify what questions he felt he was prevented from asking. A review of defense counsel’s cross-examination shows he was able to fully question and challenge Deputy Howard about his description and identification of defendant as the perpetrator.

| flBased on the foregoing discussion, the arguments raised by defendant in this assigned error are likewise without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assigned error, defendant argues that his twenty year enhanced sentence for distribution of marijuana is constitutionally excessive considering the non-violent nature of the offense.

The record indicates defendant entered into a plea agreement with regard to the multiple bill. The state filed a multiple bill of information alleging defendant was a fourth felony offender. Defendant subsequently executed a waiver of rights form with regards to the multiple bill wherein he “pled guilty” to being a second felony offender with an agreed upon sentence of twenty years. On the same day defendant executed the waiver of rights form, the state amended the multiple bill to allege defendant was a second felony offender. The appellate record does not contain a transcript of the multiple offender proceeding where defendant stipulated to being a second felony offender or where he was sentenced as a multiple offender. However, the minute entry/commitment shows the state amended the multiple bill to allege defendant was a second felony offender and defendant “pled guilty” to being a second felony offender and was sentenced to twenty years as a multiple offender.

Under LSA-C.Cr.P. art. 881.2(A)(2), a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This provision applies where a defendant admits to the allegations in a habitual offender bill as part of a sentencing agreement. State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La.11/14/03), 858 So.2d 417.

h (Although the transcript of the multiple bill hearing and sentencing are not part of the appellate record, the waiver of rights form and commitment in the record evidence the plea agreement. The waiver of rights form, executed by defendant, shows that defendant admitted his status as a second felony offender and understood he would receive a twenty year sentence. The multiple offender commitment shows defendant received a twenty year sentence. Both the waiver of rights form and the commitment, as well as the amendment to the multiple offender bill of information charging defendant as a second felony offender as opposed to a fourth felony offender, are all dated April 18, 2005. Therefore, we find that the plea agreement was sufficiently set forth in the record at the time of the plea so as to preclude defendant from challenging his sentence on appeal.

Accordingly, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his final assigned error, defendant requests a review for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that defendant was not advised of the two year prescriptive period for filing an application for post-conviction relief either at the time of his original sentencing or subsequent sentencing as a multiple offender. Accordingly, we remand the matter and instruct the trial court to inform defendant of the two year prescriptive period, set forth by LSA-C.Cr.P. art. 930.8, by sending written notice to defendant within ten days of the rendition of this opinion and to file written proof in the record that defendant received such notice. State v. Pittman, 04-705 (La. App. 5 Cir. 12/28/04), 892 So.2d 641, 645-646, writ denied, 05-0228 (La.5/6/05), 901 So.2d 1094.

^J^jFor the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter with instructions.

DEFENDANT’S CONVICTION AND SENTENCE AFFIRMED, REMANDED WITH INSTRUCTIONS.

      . Defendant was not charged in the present bill of information with the March 21, 2003 offense.