author: ROBERT A. CHAISSON, Judge.

text:
    Melvin BATISTE, Gina Batiste, Kyroneka Batiste, Keir Batiste, Shondrika Clayton, and Shondria Lovette v. Randall BROWN, Bayou Steel Corporation, GrafTech International, Inc., Idealeletrodes, Danieli Corporation, Jerry Pitts, Timothy Postlewaite, Bryan Englade, Scot Gregory and Elton Davis.
    No. 11-CA-609.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      Thomas J. Wagner, Jr., Thomas A. Ray-er, Frank A. Milanese, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants, Melvin Batiste, et al.
    Patricia S. LeBlanc, Carl A. Butler, Attorneys at Law, Metairie, LA, for Armstrong Tools, Inc., Defendant/Appellee.
    Philip Holladay, Jr., Bradley W. Pratt, King & Spalding LLP, Attorneys at Law, Atlanta, GA, Jerry L. Saporito, Edward T. Hayes, Amanda W. Vonderhaar, Attorneys at Law, New Orleans, LA, for GrafTech International Ltd., Defendant/Appellee.
    Howard E. Sinor, Jr., Nina Wessel English, Attorneys at Law, New Orleans, LA, for Amicus Curiae, Arcelormittal Laplace, LLC (f/k/a Bayou Steel Corporation).
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and ROBERTA. CHAISSON.
   ROBERT A. CHAISSON, Judge.

LThis is an appeal by Melvin Batiste, his wife, and their three children, plaintiffs-appellants, from summary judgments in favor of GrafTech International, Ltd. and Armstrong Tools, Inc., defendants-appel-lees, in this products liability action arising out of a workplace accident which occurred on August 27, 2004. For the following reasons, we affirm the judgments.

FACTS AND PROCEDURAL HISTORY

The underlying facts are as follows. Mr. Batiste had been employed by Bayou Steel Corporation for a number of years when the accident at issue here occurred. One of Bayou Steel’s processes involves melting down scrap iron to convert it into more refined metal. This is accomplished by using electrical power introduced into furnaces via graphite electrodes. These electrodes are cylinders about 24 inches in diameter, 10 to 12 feet long and weighing over 3000 pounds. They are introduced into the furnace from the roof. During use they are consumed and must be changed about once a day. To accomplish this, a new electrode is screwed into the top of the old one.

|4It was Mr. Batiste’s job to screw in the new electrodes. He stated that he had done this installation at least four thousand times. He accomplished this task by going up on top of the furnace and standing on a 14-inch wide electrode arm about 40 feet above the floor. A crane operator would lift up the new electrode and position it over the old one. Mr. Batiste would align the screw of the new unit with the hole in the top of the old one and start the screw. Once this was done, he would tighten down the connection using a chain wrench. This wrench consisted of a four-foot long handle with a chain attached to it which was wrapped around the electrode and then inserted into a ratchet-type receiver on the handle. As the handle was pulled, the chain would tighten on the electrode and allow the worker to torque down the screw.

Mr. Batiste stated in deposition that on the day in question, the chain wrench slipped on the electrode as he was tightening it. He lost his balance and fell to the floor. He noted that there were no guard rails around the beam upon which he was standing, nor was he wearing any other fall protection equipment. He also stated that he and other workers had repeatedly urged the company to install such protective railings, to no avail. This was a clear violation of OSHA regulations, 29 C.F.R. § 1910.23(c)(1), which provide that fall protection equipment or other protection must be provided for workers working four feet or more above floor level. Mr. Batiste severely injured his spine in the accident and is now wheel-chair bound.

Mr. Batiste, his wife, and his children sued numerous parties, including Graf-Tech, the manufacturer of the electrode, and Armstrong Tools, the alleged manufacturer of the chain wrench being used by Mr. Batiste, asserting claims under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq. Both of Rthese defendants moved for summary judgment and the district court granted both motions. This appeal of the two judgments followed.

ANALYSIS

Article 966 C (1) of the Louisiana Code of Civil Procedure provides that a motion for summary judgment “which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” Section C(2) of that same article provides that when the movant does not bear the burden of proof at trial, his burden does not require that he negate all essential elements of the adverse party’s claim, but rather it is “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense.” If the adverse party is unable to produce factual support showing otherwise, then there is no genuine issue of material fact. On appeal, summary judgments are reviewed de novo, and the inquiry by the appellate court is the same as that of the district court, ie., whether there are genuine issues of material fact, and if not, is the movant entitled to judgment as a matter of law. Hutchinson v. Knights of Columbus, Council 5747, 2003-1583 (La.2/20/04), 866 So.2d 228. A genuine issue is one as to which reasonable persons could disagree; if reasonable factfinders could reach only one conclusion from the evidence of record, then there is no genuine issue requiring a trial. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764.

The sections of the Louisiana Products Liability Act applicable here are La. R.S. 9:2800.54-58, which provide:

2800.54Manufacturer responsibility and burden of proof
A. 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 a reasonably anticipated use of the product by the claimant or another person or entity.
|fiB. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(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;
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.
C. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of its manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product left the control of the manufacturer or result from a reasonably anticipated alteration or modification of the product.
D. The claimant has the burden of proving the elements of Subsections A, B and C of this section.
2800.55 Unreasonably dangerous in construction or composition
A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer’s control, the product deviated in a material way from the manufacturer’s specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.
2800.56 Unreasonably dangerous in design
A product is unreasonably dangerous in design if, at the time the product left its manufacturer’s control:
(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and
(2) The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.
2800.57 Unreasonably dangerous because of inadequate warning
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 dangers to users and handlers of the product.
|7B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
(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.
C. A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic; or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

THE ARMSTRONG TOOLS, INC. CLAIM

The uncontested facts concerning the chain wrench are as follows. Mr. Batiste stated that he was using an Ideal No. 3 chain wrench manufactured by Armstrong Tools at the time of the accident. He further stated that after two pulls he repositioned the wrench for the next pull, but the chain slipped on the electrode causing him to lose his balance and fall to the floor some 40 feet below. He said that the chain came out of the head of the wrench and that the tool fell with him.

Alton Davis, the Bayou Steel employee who did the investigation of the accident, filed the accident report which included the brief notation “repaired chain wrench.” Mr. Davis testified that that notation was not accurate, and in fact all that was done was an inspection of the tool. He specified that the two bolts and nuts holding the head of the tool together were checked for looseness, but were found to be tight. He further said that the tool had subsequently been lost or stolen, and that use of this model wrench had been discontinued within a few weeks after the accident.

|sThe original suit was filed on August 11, 2005. Armstrong was not made a party until December 23, 2008. Anthony Williams, the Manager of Reliability Engineering for the Danaher Tool Group (the 1994 successor to Armstrong Tools Inc.) investigated the claim. In his affidavit, Mr. Williams recited the following facts. The wrench at issue was not available, and neither were any other Armstrong “Ideal” hand tools available for inspection at Bayou Steel. He was never able to verify that an Armstrong tool had been in use in conjunction -with the accident. He noted that the Ideal No. 3 wrench was offered for sale by independent distributors between 1939 and 2003, and was available in various configurations, including models with self-locking nuts, and with different teeth configurations and varying chain lengths. He reviewed Bayou Steel’s purchasing documents and could not find any evidence that it had ever purchased an Armstrong/Ideal product. He was shown a photograph of an Ideal No. 3 wrench which was represented to him as being the actual tool being used by Mr. Batiste at the time of his accident. He said that this could not possibly have been the tool being used by Mr. Batiste because the chain on it was too short to have gone around an electrode 24 inches in diameter. He noted that Armstrong never designed or sold a tool specifically marketed as an Electrode Wrench. The recommended torque for the electrode connections was 2500 foot pounds, but the Ideal No. 3 wrench was not designed for nor could it possibly have been used to generate that amount of force. In his position with Danaher starting in 1997, Mr. Williams had personal knowledge that no law suits alleging a defect in the tool were filed in the United States, and similarly he had inspected the records of Danaher since its acquisition of Armstrong Tools in 1994, and had found no warranty complaints regarding this tool.

| nPlaintiffs’ expert, Charles E. Prewitt, Professional Engineer, investigated the accident and produced a report. He also testified by way of deposition. The main conclusion in his report was that “Mr. Batiste’s accident was inevitable and was caused by the absence of personal fall protection on the top of the EAF-1 electrode arms.” He also stated in his report that “The chain wrench being used at the time of the incident appears not to have been assembled with self-locking nuts to insure the integrity of the wrench. Aiso, no device was provided to prevent the chain from coming loose when slackened during use.” In his deposition, Mr. Prew-itt said that he found fault with the bolt and nut configuration because the accident report indicated that the wrench had been repaired, but he admitted that he had never inspected either the tool at issue or one like it. His only knowledge of the tool in question came from the photograph shown to Mr. Williams and which Mr. Williams concluded could not possibly have been the actual tool because the chain was too short. It was Mr. Prewitt’s opinion that the bolts had probably loosened during repeated use to such an extent that the chain slipped. He did not recall the testimony of Alton Davis which was that the bolts and nuts were inspected immediately after the accident in Mr. Davis’s presence and were tight. As to a device to prevent the chain from coming out when the chain was slackened, ie., a locking pin, he admitted that he knew of no similar tool in commerce in 2004 with this feature, even though he had looked for one. He was also of the opinion that the wrench in question was “absolutely” the wrong tool for the job that Mr. Batiste was doing.

Plaintiffs’ sole allegation as to Armstrong Tools is that the wrench was defective in design. To prevail on this claim, plaintiffs bear the burden of proving that at the time the product left its manufacturer’s control there (1) existed an alternative design that was capable of preventing the damage, and (2) the | inlikelihood that the design would cause the damage and the gravity of that damage outweighed the burden on the manufacturer to use a different design. Although there is no way now to determine whether the tool Mr. Batiste was using was altered after it left the manufacturer’s control, or whether the normal wear and tear of use had simply worn out the tool, we will assume that at the time of the accident the tool remained as manufactured and was still usable. With those assumptions, the issue is thus whether there was a foreseeable likelihood that the design would cause the damage suffered by Mr. Batiste. Clearly there was not.

There is no question that the tool at issue was not the proper one to be used in tightening the electrode. Neither is there any question that Mr. Batiste’s employer was not in compliance with OSHA regulations relating to high work. His own expert, Charles Prewitt, was of the opinion that the accident was inevitable and was caused by his working without fall protection. As to Mr. Prewitt’s opinion that loosened bolts allowed the chain to slip, that was mere conjecture based on misinformation that the tool had been repaired by tightening the bolts. In fact, the only evidence on this point was Mr. Davis’s testimony that the bolts were tight at the time of the accident. In regard to his opinion that there was an alternate design available involving a locking pin, Mr. Prewitt could not find any other similar tool that was made with that feature. It thus cannot be said that the manufacturer could have foreseen that someone would use the tool to do something for which it was not intended, under circumstances which were not in compliance with OSHA regulations, and which even Mr. Batiste knew to be highly dangerous.

Considering all of the evidence of record, it is this Court’s opinion that no reasonable fact finder could have concluded that there are genuine issues of material fact regarding whether or not the design of the tool was causally related to |nMr. Batiste’s injuries within the purview of La. R.S. 9:2800.56. We further conclude that Armstrong is entitled to judgment as a matter of law, and accordingly affirm the judgment of the district court granting summary judgment as to this party.

THE GRAFTECH INTERNATIONAL, LTD. CLAIM

Plaintiffs’ allegation as to Graf-Tech, the manufacturer of the electrode, is similarly limited to the single issue of whether that company gave inadequate warnings about the dangers associated with installation of the electrodes. La. R.S. 9:2800.57 is the statute applicable to a “failure to warn” claim. That statute specifically provides that a manufacturer need not give a warning where the user or handler knows or reasonably should know of the characteristic of . the product that may cause damage.

In the present case, the deposition testimony of Mr. Batiste, as well as that of Larry Taylor and Bill King, two Bayou Steel supervisors, disclosed that they were all aware of the potential dangers of installing the electrodes by having a worker stand on a 14-inch wide beam 40 feet above the floor with neither railings nor a safety harness to protect him in case of a slip. These men also testified that they were aware of an alternative procedure whereby the new electrode could be attached to the stub of the consumed electrode on the floor of the work area. In this procedure, there was no need for a worker to ascend to the top of the furnace to perform this job. It is thus undisputed that the user or handler of the product had actual knowledge of the dangers associated with installation of it, and therefore, the manufacturer had no duty under the statute to further warn them of these potential hazards.

12It is this Court’s opinion that the judgment of the district court granting summary judgment in favor of GrafTech was correct, and we therefore affirm that judgment.

CONCLUSION

For the foregoing reasons, the summary judgments in favor of Armstrong Tools, Inc. and GrafTech International, Ltd. are hereby affirmed.

AFFIRMED


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Rodney Wayne MACON, Appellant.
    No. 46,696-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Annette Roach, Louisiana Appellate Counsel, for Appellant.
    Charles Rex Scott, District Attorney, Laura W. Fulco, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   GASKINS, J.

hThe defendant, Rodney Wayne Macon, appeals from a trial court ruling on his post conviction relief application to correct an illegal sentence. For the following reasons, we amend the defendant’s sentence with instructions.

FACTS

On May 8, 1980, the defendant was convicted of aggravated rape which he committed when he was 16 years old. Under the law in effect at that time, the defendant was sentenced to serve life in prison without benefit of parole, probation, or suspension of sentence. His conviction was affirmed by the Louisiana Supreme Court in an unpublished opinion. See State v. Macon, 394 So.2d 620 (La.1981). Over the years, numerous applications for post conviction relief were filed on behalf of the defendant and were denied.

In 2010, the United States Supreme Court concluded that the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment, forbids the imposition of a sentence of life in prison without parole for a juvenile offender who did not commit a homicide. Graham v. Florida, — U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). According to the Supreme Court, a State need not guarantee the offender eventual release, but if it imposes a sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of the term. The Supreme Court instructed that “a State is not required to guarantee eventual freedom to a juvenile offender convicted of a 12nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The Supreme Court went on to state that:

It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crime committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

On July 9, 2010, the defendant filed an application for post conviction relief with the trial court, to correct an illegally excessive sentence under La. C. Cr. P. art. 882. He based his argument upon the new interpretation of the law set forth in Graham v. Florida, supra. A hearing in the trial court was held on the defendant’s post conviction relief application on February 14, 2011. The trial court vacated the defendant’s original sentence and resen-tenced him to life imprisonment without the benefit of probation or suspension of sentence for the first 50 years of the sentence. After serving 50 years of the sentence, the defendant would be eligible for parole. The defendant filed a motion to reconsider the sentence which was denied on February 23, 2011.

The defendant appealed, claiming that the new sentence imposed is illegal and constitutionally excessive under the Eighth Amendment to the RUnited States Constitution. The defendant argues that there is no legal authority for the trial court to impose a sentence of life imprisonment with the benefit of parole. He contends that the sentence imposed by the trial court is illegal and that, under the established jurisprudence, the appropriate remedy would be to sentence him to the most serious penalty for the next lesser included offense which existed at the time of the commission of the offense.

The defendant maintains that the 50-year period of ineligibility for parole is tantamount to a life without parole sentence because the parole eligibility limitation approaches the defendant’s life expectancy and effectively denies any realistic opportunity for future release.

DISCUSSION

The United States Supreme Court in Graham, v. Florida, supra, clearly struck down the imposition of a sentence of life in prison without parole for those who commit nonhomicide offenses while juveniles. This raises the issue of the appropriate procedure for correcting sentences which are illegal under Graham v. Florida, supra. After the trial court’s sentencing in this matter, the Louisiana Supreme Court issued a per curiam opinion concerning defendants who had been convicted of aggravated rape where the offenses were committed while the offenders were under the age 1 ¿of 18. State v. Shaffer, 11-1756, 11-1757, 11-1758 (La.11/23/2011), 77 So.3d 928, 933, 939, rehearing denied, (La.1/11/12). The first relator in that case, Shaffer, was convicted of aggravated rape which was committed while a juvenile and was sentenced to death. That sentence was vacated and the relator was sentenced to life in prison at hard labor. The second relator, Leason, was convicted of aggravated rape which was committed as a juvenile and was sentenced to life in prison at hard labor. Even though these two sentences did not preclude eligibility for parole, the relators argued that they were in fact ineligible for parole under La. R.S. 15:574.4(B) which states in pertinent part that no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years. Also, La. R.S. 15:574.4(A)(2) provides in pertinent part that:

Unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five. This provision shall not apply to a person serving a life sentence unless the sentence has been commuted to a fixed term of years. [Emphasis supplied.]

The third relator, Dyer, was convicted of aggravated rape committed as a juvenile and was sentenced to life in prison at hard labor without the benefit of parole, probation, or suspension of sentence. Therefore, all three relators argued that their sentences were illegal under Graham v. Florida, supra. The relators in Shaffer argued that the proper remedy would be to resentence them according to the penalties provided for the lesser and included offense of attempted aggravated rape.

|sThe Louisiana Supreme Court found that the sentences of all three relators in Shaffer violated the mandate of the Graham case. However, it rejected the rela-tors’ argument that they should be resen-tenced to serve the penalty for attempted aggravated rape. In formulating the appropriate remedy to satisfy the mandate of Graham, the Louisiana Supreme Court amended Dyer’s sentence to delete the restriction on parole eligibility. The Department of Corrections was directed to revise Dyer’s prison master to reflect that his sentence is no longer without the benefit of parole. Further, the Department of Corrections was directed to revise all three relators’ prison masters according to La. R.S. 15:574.4(A)(2) to reflect eligibility for consideration by the Board of Parole.

In a footnote, the Louisiana Supreme Court noted an argument by the state that the severance of the commutation proviso in La. R.S. 15:574.4(A)(2) could afford petitioner parole eligibility without rendering the essence of parole meaningless. The Louisiana Supreme Court also pointed out that the legislature addressed, but did not resolve the Graham, issue. In 2011, House Bill 115 provided that an inmate serving a life sentence for a nonhomicide crime committed as a juvenile would become eligible for parole consideration after serving 35 years of his sentence, subject to a variety of conditions. House Bill 115 failed final passage. According to the Louisiana Supreme Court, the legislature, by concurrent resolution, directed the Louisiana Law Institute to convene a task force to evaluate Louisiana law for compliance with Graham and to report back by | (¡January 1, 2012. The Louisiana Supreme Court stated that the decision in Shaffer is an interim measure pending the legislature’s response to Graham.

The Louisiana Supreme Court reiterated that it was not ordering the relators released on parole, stating that the determination of whether the relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). The Louisiana Supreme Court stated that access to the Board’s consideration will satisfy the mandate of Graham.

In State v. Richards, 2011-0349 (La. App. 4th Cir.12/1/11), 78 So.3d 864, the fourth circuit considered the conviction and sentence of a defendant convicted in October 2010 for aggravated rape which was committed when the defendant was 17 years old. The defendant was sentenced to life in prison without benefit of parole, probation, or suspension of sentence. The defendant appealed, arguing insufficiency of the evidence and that his sentence was unconstitutionally excessive under Graham v. Florida, supra.

The fourth circuit affirmed the conviction, but followed the measures set forth in State v. Shaffer, supra. It amended the defendant’s sentence to delete the restriction on parole eligibility, directed the Department of Corrections to revise the defendant’s prison master to reflect that his sentence is no longer without benefit of parole, and instructed the Department of Corrections to revise the defendant’s prison master in 17accordance with the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.

In the present case, we find that the defendant’s legal position is exactly the same as that of Dyer in the Shaffer decision and the defendant in State v. Richards, supra. The defendant here, who was born on October 26,1962, was convicted of aggravated rape which was committed while a juvenile and was sentenced to serve life in prison without the benefit of parole, probation, or suspension of sentence. Under Graham v. Florida, supra, the portion of the sentence denying the defendant eligibility for parole for the entire term of his life sentence was illegal. The trial court attempted to alleviate the illegality by resentencing the defendant to serve life in prison with eligibility for parole after serving 50 years of the sentence. However, subsequent to the trial court’s decision, the Louisiana Supreme Court has given clear direction in Shaffer as to the appropriate remedy in cases such as this and we are bound to follow that mandate. Further, if the defendant were required to serve 50 years of his sentence before being eligible for consideration for parole, this defendant would be approximately 67 years old. We find that this does not give the defendant a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” as required by Graham v. Florida, supra.

In this case, the defendant has been incarcerated at least since his conviction on May 8, 1980, and has served at least 31 years on his life | ^sentence. He is now approximately 49 years old. Because the defendant has already met the criteria of La. R.S. 15:574.4, in that he has served at least 20 years of the term of imprisonment and has reached the age of 45, we are bound in this case to follow the mandate of the Louisiana Supreme Court set forth in State v. Shaffer, supra. We amend the defendant’s sentence of life in prison to delete the restriction on parole eligibility and provide instructions regarding access to the Board of Parole’s consideration. Like the court in Shaffer, we reiterate that this court is not ordering the defendant’s release on parole. The determination of whether the defendant may be released on parole falls within the purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). This fact is particularly relevant given the defendant’s significant psychiatric history. As noted in Shaffer, access to the Board’s consideration will satisfy the mandate of Graham.

DECREE

For the reasons stated above, because the defendant has met the criteria of La. R.S. 15:574.4 and has served at least 20 years of his life sentence and has reached the age of 45, we amend the sentence of the defendant, Rodney Wayne Macon, to delete the restriction on parole eligibility. The Department of Corrections is instructed to revise his prison master to reflect that his life sentence is no longer without the benefit of Rparole. Further, the Department of Corrections is directed to revise the defendant’s prison master according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.

SENTENCE AMENDED WITH INSTRUCTIONS.

      . The defendant filed his appeal in this court; we transferred the appeal to the Louisiana Supreme Court because the dates of the defendant's conviction, original sentencing, and order of appeal all came before July 1, 1982, the date upon which the Louisiana Supreme Court relinquished exclusive appellate jurisdiction in criminal cases to the various intermediate appellate courts of this state. The Louisiana Supreme Court transferred the matter back to this court, reasoning that the present appeal involves the resentencing of the defendant more than 30 years after the Louisiana Supreme Court affirmed the conviction and sentence for aggravated rape. The Louisiana Supreme Court stated that the present matter is an entirely separate proceeding to correct what the defendant contends is an unconstitutional sentence under Graham v. Florida, supra. See State v. Macon, 2011-1731 (La.9/21/11), 70 So.3d 780.

      . We also note that, if we affirm the trial court sentence of life imprisonment, with the first 50 years to be served without benefit of parole, then this defendant, whose situation is indistinguishable from Dyer, in the Shaffer case, and the defendant in State v. Richards, supra, would have to serve approximately 19 more years before he is eligible for parole consideration.


author: BROWN, Chief Judge.

text:
    Roy JENKINS, Crystal Jenkins, Stephanie Jenkins, Latasha Jenkins, and Ashley Jenkins, Plaintiffs-Appellants v. WASHINGTON & WELLS, L.L.C., Alex J. Washington and Continental Casualty Company, Defendants-Appellees.
    No. 46,825-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      J. Allen Cooper, Jr., for Appellants.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Hershcel E. Richard, Jr., John C. Nickelson, for Appellees.
    Before BROWN, GASKINS, and MOORE, JJ.
   BROWN, Chief Judge.

| |This is a legal malpractice action. Plaintiffs question the attorney’s handling of the appeal of their medical malpractice case against Willis Knighton Medical Center. In that medical malpractice case, the trial court granted Willis Knighton’s motion for summary judgment on all claims except plaintiffs’ Lejeune claims. The supreme court in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990), held that Louisiana tort law provided, under certain circumstances, that certain classes of bystanders who witnessed physical injury to another were entitled to recover mental anguish damages. This court reversed the trial court’s denial of Willis Knighton’s motion for summary judgment as to plaintiffs’ Lejeune claims. See Jenkins v. Willis Knighton Medical Center, 43,254 (La.App.2d Cir.06/04/08), 986 So.2d 247. Plaintiffs’ attorney then filed a writ of certiorari with the Louisiana Supreme Court. The supreme court declined to consider the writ application because it was not timely filed. Thus, plaintiffs initiated this malpractice case against the attorney, his law firm and their insurer. Defendants filed a motion for summary judgment, which was granted by the trial court. Plaintiffs appealed. We affirm.

Facts and Procedure

The Underlying Medical Malpractice Action

Rosie Jenkins was admitted to the Willis Knighton emergency room on May 15, 2006. Soon thereafter, she suffered a stroke that rendered her brain-dead. Approximately 20 minutes later, a nurse gave Mrs. Jenkins a blood thinner injection, an inappropriate treatment for a stroke victim. The next day Mrs. Jenkins died when she was removed from life support.

l2Plaintiffs, the surviving husband and daughters of Rosie Jenkins, filed a complaint for wrongful death/survival. A medical review panel found that, although administration of the blood thinner Lovenox was a breach of the applicable standard of care, there was no causal relationship between the blood thinner’s administration and Mrs. Jenkins’ death. Plaintiffs filed their petition in district court. Motions for summary judgment were filed by both plaintiffs and defendant.

At the hearing on the motions for summary judgment, plaintiffs’ trial counsel stated that they were “not claiming that [Rosie Jenkins’] death was caused by the administration of the [blood thinner]” and that a Lejeune claim was “the only cause of action [plaintiffs had] remaining.” The court then granted Willis Knighton’s motion for summary judgment on the wrongful death/survival claim but denied summary judgment on (plaintiffs’) bystander Lejeune claim.

Willis Knighton filed a supervisory writ application with this court, seeking review of the trial court’s denial of its motion for summary judgment as to plaintiffs’ Le-jeune claims. The writ application was granted. Plaintiffs did not seek review of the trial court’s ruling dismissing their other claims. Plaintiffs’ trial attorneys withdrew.

Plaintiffs hired Alex Washington and his firm, Washington and Wells, to represent them; at that time, their Lejeune claim was pending in this court. This court reversed the trial court’s judgment denying Willis Knighton’s motion for summary judgment as to the Lejeune claims and 1 sgranted summary judgment in favor of Willis Knighton on all issues. Specifically, this court stated that:

While there was a breach of the standard of care, i.e., the Lovenox injection, the medical evidence presented by the hospital established that the breach did not cause Mrs. Jenkins’ condition or worsen it. The plaintiffs have put forth no medical evidence to the contrary.... [W]e find that since the [hospital] was not liable as a result of the injection, it did not give rise to Lejeune damages on behalf of Mrs. Jenkins’ husband and daughters.

Jenkins v. Willis Knighton Medical Center, 986 So.2d at 252.

The Present Legal Malpractice Claim

Attorney Washington prepared and filed an application for a writ of certiorari with the Louisiana Supreme Court on plaintiffs’ behalf urging reversal of this court’s ruling “with respect to plaintiffs’ Lejeune claims.” The supreme court declined to consider the writ application because it was one day late. Plaintiffs thereafter instituted the instant legal malpractice action against Washington, his law firm and the firm’s malpractice insurer.

Washington and the other defendants filed a motion for summary judgment asserting that, even had plaintiffs’ writ application been timely filed, they would not have been successful in their remaining claim against Willis Knighton. The trial court granted defendants’ motion for summary judgment and this appeal was taken.

Discussion

To establish a claim for legal malpractice, plaintiffs must prove the existence of an attorney-client relationship; negligent representation by the | ^attorney; and loss caused by that negligence. Costello v. Hardy, 03-1146 (La.01/21/04), 864 So.2d 129; White v. Golden, 43,076 (La. App.2d Cir.04/30/08), 982 So.2d 234; Khan v. Richey, 40,805 (La.App.2d Cir.04/19/06), 927 So.2d 1267, writ denied, 06-1425 (La.11/03/06), 940 So.2d 662; Whittington v. Kelly, 40,386 (La.App.2d Cir.12/14/05), 917 So.2d 688. Absence of proof of one of these elements is fatal to plaintiffs’ claim. Whittington, supra.

In the instant case, plaintiffs established the existence of an attorney-client relationship and negligence by the attorney. An attorney is negligent if he accepts employment and fails to assert timely a viable claim or causes the loss of opportunity to assert a claim for recovery. Jenkins v. St. Paul Fire and Marine Ins. Co., 422 So.2d 1109 (La.1982).

As recently observed by the Louisiana Supreme Court, in MB Industries, LLC v. CNA Ins. Co., 11-0304 (La.10/25/11), 74 So.3d 1173, 1187:

However, it is not enough to simply show (the attorney) acted negligently. MBI must also introduce evidence of causation. Although this Court disavowed the “case within a case” doctrine in Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1110 (La.1982), we reiterated that causation “is an essential element of any tort claim.” At the very least, MBI must establish some causal connection between the alleged negligence and the eventual unfavorable outcome of the litigation. Id. It has not done so.

Where a client shows that his lawyer’s professional impropriety has caused him some loss, the attorney then has the burden of overcoming that client’s prima facie case by showing the client could not have succeeded ^notwithstanding the impropriety. Jenkins v. St. Paul Fire and Marine Ins. Co., 422 So.2d at 1110.

At the summary judgment hearing in November 2007 (in the underlying medical malpractice case) plaintiffs’ trial attorneys conceded on the record, months before plaintiffs retained Alex Washington to represent them, that plaintiffs “were not claiming that [Mrs. Jenkins’] death was caused by the administration of the [blood thinner].” Trial counsel further stated that a possible (bystander) Lejeune claim was “the only cause of action [plaintiffs had] remaining.” These statements, as well as the Second Circuit’s June 2008 opinion in Jenkins v. Willis Knighton Medical Center, supra, make clear that the only claims at issue when Alex Washington agreed to represent plaintiffs in March 2008 were plaintiffs’ Lejeune claims.

Lejeune Claims

In Lejeune, 556 So.2d at 566-568, the court recognized the right of action to recover mental distress damages for bystanders who themselves were not physically injured but who witnessed physical injury to another as a result of negligent conduct by the tortfeasor. The Lejeune court applied a duty-risk analysis, observing that the risk of a person suffering mental anguish damages resulting from the negligent injury to a third person may fall within the scope of a defendant’s duty. The Louisiana Legislature essentially codified this decision in Louisiana Civil Code Article 2315.6, which provides:

A. The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or | (¡emotional distress that they suffer as a result of the other person’s injury:
(1) The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.
B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article. (Emphasis added).

As noted by the Supreme Court in Trahan v. McManus, 97-1224 (La.03/02/99), 728 So.2d 1273, 1279:

The requirements of Article 2315.6, when read together, suggest a need for temporal proximity between the tortious event, the victim’s observable harm, and the plaintiffs mental distress arising from an awareness of the harm caused by the event. The Legislature apparently intended to allow recovery of bystander damages to compensate for the immediate shock of witnessing a traumatic event which caused the direct victim immediate harm that is severe and apparent, but not to compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.

Regarding plaintiffs’ claims for Lejeune damages, it is undisputed that Willis Knighton had no liability for Rosie Jenkins’ death in the underlying medical malpractice action.

The consensus of the medical evidence was that Mrs. Jenkins was brain dead due to [a stroke] by approximately 5:10 a.m. and that the administration of the Lovenox at 5:29 a.m. did not cause the [stroke] or her ensuing death. Additionally, the Lovenox did not worsen her condition or diminish her chance of survival as her condition was so grave and her prognosis so poor that neither recovery nor even survival was possible ...
We find that since the defendant was not liable as a result of the injection, it did not give rise to Lejeune damages on behalf of Mrs. Jenkins’ husband and daughters.

Jenkins v. Willis Knighton Medical Center, 986 So.2d at 251-252.

|7In the instant case, the event that plaintiffs claim gave rise to their Lejeune damages, the hospital’s administration of blood thinner to Mrs. Jenkins, has been found not to have caused or contributed to Mrs. Jenkins’ death. Because Willis Knighton had no liability for Mrs. Jenkins’ condition, no Lejeune damages arose. See Holland v. Hornyak, 07-894 (La.App. 5th Cir.11/27/07), 971 So.2d 1227, writ denied, 08-0333 (La.04/25/08), 978 So.2d 366.

Furthermore, this injection occurred in the hospital emergency room. It does not satisfy the requirement in C.C. art. 2315.6 of viewing or coming upon the scene of an injury causing event. Plaintiffs were not present but instead were told of the injection at a later time by hospital personnel. See Veroline v. Priority One EMS, 09-1040 (La.10/09/09), 18 So.3d 1273.

Since plaintiffs could not have succeeded on their Lejeune claims, summary judgment on their legal malpractice claim was proper.

Independent Action of the Attorney

There remains plaintiffs’ claim for emotional stress and anguish independent of the loss of the medical malpractice claim. They contend that clients can recover damages against their former attorney for the emotional distress caused to them by his negligence. Plaintiffs assert that when the attorney advised them of his failure, they suffered real and substantial mental anguish at having lost the “opportunity or chance to prevail in their case.” Plaintiffs cite Beis v. Bowers, 94-0178 (La.App. 4th Cir.01/19/95), 649 So.2d 1094, writ denied, 95-0429 (La.03/30/95), 651 So.2d 847, in support.

|8In the instant case, plaintiffs sought specific or economic damages as well as general damages caused by their attorney’s negligence. They have now been denied these economic damages, leaving only their claims for emotional distress. While the outer boundaries of the law are not yet visible in Louisiana when dealing with emotional distress claims in legal malpractice cases, we find that under the circumstances of this case such damages are not warranted.

In order to recover mental distress damages where no physical injury was suffered by the victims, the plaintiffs must show “an especial likelihood of genuine and serious mental distress” resulting from conduct directed at them. Moresi v. State Through Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La.1990); Dumas v. Angus Chemical Co., 31,400 (La.App.2d Cir.01/11/99), 728 So.2d 441, writ denied, 99-0751 (La.04/80/99), 741 So.2d 19.

To assert a cause of action for negligent infliction of emotional distress, there must be proof that the defendant violated a legal duty owed to the plaintiffs, who must also bear the heavy burden of proving outrageous conduct by the defendant. Doe v. Dunn, 39,179 (La.App.2d Cir.12/22/04), 890 So.2d 727; Succession of Harvey v. Dietzen, 97-2815 (La.App. 4th Cir.06/24/98), 716 So.2d 911.

|9In the instant case, Attorney Washington’s negligence in filing plaintiffs’ writ application with the supreme court one day late is not “outrageous” conduct, nor did plaintiffs show that they suffered genuine and serious mental distress caused by defendant’s negligent conduct. As noted by the supreme court in Moresi, supra, limiting the recovery of mental anguish damages in cases in which there is no physical injury, bodily injury or property damage caused by the negligent defendants to those cases in which the victim can show an “especial likelihood of genuine and serious mental distress” resulting from conduct directed at the victim “guarantees that the claim is not spurious.” Moresi, 567 So.2d at 1095. In keeping with this court’s rulings in Whittington v. Kelly, supra, and Jarrell v. Miller, 38,360 (La. App.2d Cir.09/09/04), 882 So.2d 639, writ denied, 04-2488 (La.12/17/04), 888 So.2d 868, we do not find any evidence to support plaintiffs’ claim for mental anguish damages in this case.

In the instant case, Attorney Washington immediately told plaintiffs about his error in filing their writ application with the supreme court; he was honest with his clients about what had occurred. In fact, informing them of his negligence was an ethical and legal obligation. Although unfortunate, the untimely filing was not “outrageous” conduct, nor did plaintiffs show that they suffered genuine and serious mental distress caused by Washington’s neglect. There are no material issues of fact and summary judgment was proper.

110Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to plaintiffs-appellants.

      . Alex Washington sent it by FedEx rather than U.S. mail, which caused it to lack the necessary postmark which would have detailed its timely mailing.

      . There are cases in which the original claim negligently handled by the attorney will not be predicated upon an economic loss, such as cases involving issues of contested child custody or visitation, confinement to a mental hospital, imprisonment, adoption, etc. Not to allow mental anguish damages under these limited circumstances would leave such a client without a remedy and virtually immunize the negligent attorney. This would certainly be contrary to public interest and would not constitute sound public policy. See Jarrell v. Miller, 38,360 (La.App.2d Cir.09/09/04), 882 So.2d 639.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Adrian Lamar COOK, Appellant.
    No. 46,843-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Rehearing Denied Feb. 15, 2012.

      Adrian Lamar Cook, Pro Se.
    Alex J. Washington, Shreveport, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Dhu Thompson, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before GASKINS, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

11 Adrian Cook was convicted by a unanimous 12-person jury for the second degree murder of Derodrick Randle, a violation of La. R.S. 14:30.1. After the trial court denied Cook’s post-verdict motions for acquittal and new trial, he was sentenced to serve the mandatory term of life at hard labor without parole. Cook appealed his sentence and conviction, which we affirm for the following reasons.

Facts

The following evidence was adduced at Cook’s trial. On July 2, 2009, a resident of the Kings Manor Apartments in Shreveport, Louisiana called police and reported hearing gunshots. Shreveport Police Department (“SPD”) Officers Colby Moss and Donald Belanger, Jr., responded to the dispatch. When the officers arrived, the defendant, Adrian Cook, came out of an upstairs apartment shouting “I can’t believe he tried to rob me.” The officers patted down Cook and asked him whether the other individual was still upstairs, to which Cook answered, ‘Yes.”

The officers discovered the bullet-riddled body of Derodrick Randle. The officers saw a stainless-steel Smith & Wesson .38 caliber revolver in one of Randle’s hands. Officer Moss testified that “the butt of the gun was just outside of his index finger or his pointer finger” and that the weapon was resting on the outside of his palm; also, “It did appear as if someone had placed it in his hand.” Officer Moss picked up the weapon, opened the cylinder and ejected five spent cartridge cases from the gun.

The officers entered the apartment and discovered a .40 caliber Glock Model 23 pistol behind a couch. The pistol’s slide was locked open and its ^magazine was empty. After finding no one else in the apartment, the officers returned to the victim. Randle had no pulse, and paramedics were unable to revive him; he died as a result of the gunshot wounds.

Another SPD officer, John Madjerick, arrived at the scene and, at the instruction of the other officers, detained Cook. As Officer Madjerick took the defendant to a patrol car, Cook stated repeatedly, “I’m the victim.” After the officer read Cook his Miranda rights, the defendant made a statement to Off. Madjerick, who testified:

I asked him basically what happened. I asked if he knew the guy that was upstairs that had been shot, he said yes, he’d known him five or six years. He knew his first name was Derodrick but he goes by the street name Can’t Get It Right, I believe is what he said, and they had known each other for some time. He stated that on that date that Dero-drick and another unknown black male came to his apartment and knocked on the door at which time I believe Mr. Cook stated he let them in and then shortly thereafter he said that Dero-drick produced a handgun and he thought was attempting to rob him so at that time he retrieved a handgun and shot Derodrick multiple times in the upper torso.

The officer testified that Cook told him that the victim was armed with the revolver and that he (Cook) was armed with the Glock.

Sergeant David Walls of the SPD conducted the inspection and documentation of the crime scene. He photographed and videotaped the relevant areas in and outside of the apartment, although the victim had already been removed by paramedics before Sgt. Walls arrived. Sergeant Walls also created a diagram of the scene based upon his observations. The only damage inside the apartment caused by bullets was found on the apartment’s front door and to the floor near the entry threshold. Walls said that the damage was “[tjowards the doorway at head level area down to the |3floor and then some impact area straight into the floor at the bottom of the doorway where there were some fragments from a ricochet.” Sergeant Wall identified exhibit photos of this area which showed that most of the 11 spent .40 caliber cartridge cases recovered were on the floor of the hallway entering the apartment, a hallway only slightly wider than the entry door and extending for several feet into the apartment. He also identified five bullet holes in the apartment’s front door that were from about chest height to about knee level, as well as bullet impact damage to the wall outside that door.

Police transported Cook to the police station. Photos of him taken there show a small reddish stain on the front of his shirt but no other evidence of blood or obvious injuries. Once at the police station, SPD Detectives Rod Demery and Robert Gordon interviewed Cook. Detective Demery testified that he and Det. Gordon were assigned to the investigation of the murder. According to Det. Demery, Cook was Mirandized and opted to make a statement, giving the detectives some background about the situation. Cook’s statement taken by Dets. Demery and Gordon was played for the jury. In that statement, Cook told the officers that he had known the victim for years as a friend of a group of people that Cook associated with. The defendant told the officers that the victim came to see him because “I had green [i.e., marijuana] ... I mess with that green. He want to get a little green from me.” Cook also informed the detectives that the victim told him that he wanted to buy either a quarter or a half pound of marijuana, and Cook told the victim to meet him at Cook’s apartment at Kings Manor.

[ 4According to Cook’s statement to the detectives, when the victim arrived by car he was with another man who stayed in the car. Cook told the detectives that the victim then came into the defendant’s apartment:

... and he came in the house and he looked at the stuff. And he like — he was like saying — first, he tried to walk out the door. He grabbed it and tried to walk right out the door — but I was like, hold up, where you going? That’s what made me grab my gun. And so I — I—I grabbed it from him. I was like,' hold up, where you going, man, bring the money. So I put the weed back on the table. So he said he’s gonna go to the car and get it. He went outside. I grabbed my gun, you know what I’m saying, I pulled my gun.... I feel something spooky.... You know what I’m saying, so he come up in the house and — when he go out there, I looked out the window. That’s when I recognized the little dude. He said something to him and then he come back out. He come up the stairs. He come up the stairs. He come in the door. So I go to the door to try to lock the door. And as soon as I come-like my door right here. He come in, he walks around this way. I close it, I try to lock it. I turn around. He’s got the gun. Hey, D Baby, I gotta get you, like that there. I’m like, aw, man, that’s how you gonna do it, like that there? So he walk to the table and grab-tried to grab the green. He grabbed the green and got to walking off like that there. So I went ahead and grabbed him and turned him around cause when I grabbed him, like the gun was right there, facing my little homeboy sitting in my living room. So I twist him and he got to firing off so I’m — I’m [firing] and he let me up and I done hit him in his side a couple of times. And we pushed off and I — and I just kept hitting him. And he fell on the ground so I looked — I tried to open up my door. I see his little partner done shot back down the stairs, you know what I’m saying.

Cook also explained to the officers that one of his friends, a man he identified as “Little Dude,” was present in the apartment during these events. Cook also explained the victim’s position at the time of the shooting:

So he drawed down, so that meant he gotta be back up to the table, to my table and grab [the marijuana] cause I left it on the table. So he grabs it and then he turns back, you know what I’m saying, and tried to walk — tried to walk back out the door | ¿backing up his back. You know what I’m saying, so I knew it was my last chance that he was gonna take it, so I grabbed him, you know what I’m saying. He had the gun. I’m surprised — I mean, Lord, we meeting right now man, that man’s supposed to have shot me in my stomach somewhere .... He squeezed off first. As soon as I grabbed him, like the gun scraped my — you know what I’m talking about, I made sure I had his — had his arm like this here and twist him so he can’t shoot my little homeboy up in the living room. So he start popping.

The detectives knew that no bullet holes had been found in the interior of Cook’s apartment, so they asked him whether both he and the victim were shooting at the door. The defendant replied:

No, matter of fact, how was I shooting? He’s like this here. I turned him around. Yeah, so, yeah, we turned around. I turned him. He pow, pow, pow, and we turned again and I pow, pow, pow, you know what I’m talking about, just kept squeezing. I never got to shoot until I flipped him around by the door, you know what I’m saying.

Forensic pathologist Dr. James Traylor conducted an autopsy of the victim and confirmed that Randle died as a result of a gunshot wound. Dr. Traylor found 12 gunshot wounds on Randle’s body. Seven of the wounds were penetrating (where the bullet enters but does not exit the body), four of the wounds were perforating (where the bullet enters and exits the body) and one wound was a grazing wound. The doctor testified that blood tests showed that the victim had ingested marijuana as much as a day before the killing. Dr. Traylor recovered seven projectiles and one bullet jacket fragment from the victim’s body. Three of the recovered projectiles were of a smaller caliber than the other four. Two of the .38 caliber projectiles were taken from wounds to the victim’s right hip, and one was taken from a penetrating gunshot wound to the victim’s lower chest. In other words, these wounds were inflicted from the victim’s front and right side. The |fiwounds in Randle’s right hip were not close contact wounds because they did not have soot or gunpowder in them.

Three of the .40 caliber projectiles were recovered from penetrating wounds in the victim’s back, buttocks and left arm (the only entrance wounds on the victim’s back), and the other .40 caliber projectile was taken from a penetrating wound to the victim’s upper chest. Thus, the .40 caliber wounds were inflicted from both the front and rear of the victim.

These and other projectiles recovered from the crime scene were submitted to the North Louisiana Crime Lab. Forensic scientist Carla White studied the projectiles and testified at trial. Her analysis revealed that the smaller projectiles recovered from the victim’s body were .38 caliber bullets fired from the revolver that police found in the victim’s hand. The four larger projectiles recovered from the vie-tim’s body were .40 caliber bullets and had characteristics similar to samples fired from the Glock pistol.

Adrian Mayberry also testified at Cook’s trial. He was at Cook’s apartment at the time of the shooting and testified that he had known Cook for over ten years and was his good friend. He said that prior to the shooting, he was watching TV in the apartment when Randle arrived. Mayber-ry explained that he had his back to Cook and Randle while they spoke and did not hear what they were saying before the shooting started. He further explained that once the shooting started, he hit the floor. He “couldn’t tell” if the shots were coming on top of each other.

Cook testified at trial in his own defense. He explained that he had known the victim for several years and was in contact with him on the date |7of the shooting because the victim wanted to buy marijuana. He said that when Randle came in to buy the marijuana, he did not produce any money; instead, he grabbed the marijuana from the dining room table and attempted to leave. When Cook asked where the money was, Randle replied that it was in the car; he left the apartment and went to the car. Cook watched as Randle retrieved an unknown object from the car and then returned to the apartment. Cook said that when Randle reentered the apartment, he had nothing in his hands, so Cook let him in and then turned around to close and lock the door. Cook explained that when he turned around, Randle was pointing a silver-plated gun at him.

Cook testified that Randle got the marijuana and said “I got to get you,” which frightened Cook. Cook said that he was still standing in the narrow hallway that Randle had to traverse to exit the apartment, and that when Randle got close to him, Cook reached for Randle’s gun to try to disarm him. Cook explained that he used both of his hands to grab Randle’s gun hand and that Randle’s gun went off three times that he could recall. Next, Cook said that he was able to push Randle off of him and then was able to retrieve his own pistol from the waistband of his shorts. Cook testified that he then shot at Randle, who fell to the floor in the apartment’s doorway.

On cross-examination, Cook testified that Det. Demery tricked him (Cook) into saying some of the things he said in his statement to the police, including that he “couldn’t let [his] work [i.e., the marijuana] walk out the | sdoor like that” and that something was “spooky” when Randle went back to his car. Cook also said that he acquired the Glock only days before the shooting and had never possessed a gun of his own before. However, Cook admitted that he had previously pled guilty to possessing a stolen firearm, and further admitted that he had been convicted of possession of cocaine. He also admitted that he was engaged in the distribution of drugs at the time of this shooting, but denied that he had the intent to kill or inflict great bodily harm upon Randle.

Cook testified that Randle had control over the revolver the entire time during the struggle and that he (Cook) neither pulled the trigger of that gun nor put the gun in Randle’s hand after the shooting. He admitted that he had moved Randle’s body out of the doorway in order to leave the apartment, give his marijuana to some acquaintances nearby, and have his father (who also lived in the apartment complex) call police. Cook said that the wounds to Randle’s back must have happened because “when you shooting a person not going to stand there and let you shoot them, they going to move and they going to — they going to move around trying to protect or trying to block a bullet or something, that had to be how he got hit in the back.”

The jury was unconvinced by Cook’s testimony that he shot Randle in self-defense and did not mean to kill or inflict great bodily harm upon him; as noted, the second degree murder verdict was unanimous and Cook was convicted as charged. Cook was sentenced to the mandatory life term, and he now appeals his conviction and sentence.

1 ¡¡Discussion

Sufficiency of the Evidence

In Cook’s first assignment of error, he argues that the evidence was insufficient to convict him of second degree murder. Specifically, he maintains that the state failed to prove beyond a reasonable doubt that he had the specific intent to kill or commit great bodily harm upon the victim. Further, the defendant argues that the state failed to prove that he did not kill the victim in self-defense.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a | , (jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.05/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La. App.2d Cir.01/14/09), 2 So.3d 582, unit denied, 2009-0372 (La.11/06/09), 21 So.3d 299. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

Specific Intent to Kill

The offense of second degree murder is defined by La. R.S. 14:30.1, which provides, in part: “A. Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm.” Only this definition of the crime was read to the jury.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences Into follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 2005-1825 (La.01/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Hill, supra. In reviewing the correctness of such a determination, a court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

It is widely held that the discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 1995-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Dooley, 38,763 (La.App.2d Cir.09/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.02/18/05), 896 So.2d 30; State v. Brooks, 36,855 (La.App.2d Cir.3/05/03), 839 So.2d 1075, writ denied, 2003-0974 (La.11/07/03), 857 So.2d 517.

Cook points out that he did not flee from the scene or attempt to avoid apprehension (i.e., he did not have a guilty conscience); thus the | ^evidence was insufficient to prove his intent. In other words, Cook maintains that because he did not flee the scene of the crime, the jury should have accepted that as evidence he lacked the specific intent to kill his victim. It is true that flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Durden, 36,842 (La.App.2d Cir.04/09/03), 842 So.2d 1244, writ denied, 2003-1350 (La.11/26/03), 860 So.2d 1131. However, in this case, evidence of the defendant’s specific intent to kill or inflict great bodily harm upon the victim was ample, despite the fact that he did not flee the scene. The victim was shot 12 times — in the front, side and back — and the evidence shows that even more shots were fired during the incident. The jury was well within its discretion to accept this as proof of the defendant’s specific intent and to discount Cook’s denial of his intent. It was also well within the jury’s discretion to assess Cook’s action to remain at the scene of the crime and what bearing that had on his guilt or innocence.

Self-Defense

Cook further argues that the state failed to disprove his assertion that he acted in self-defense when he shot Randle. Typically, in a homicide case self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(A)(1); State v. Dooley, supra; State v. Cotton, 25,940 (La. App.2d Cir.03/30/94), 634 So.2d 937.

113When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 2002-1742 (La.05/20/03), 846 So.2d 753; State v. Garner, 39,731 (La.App. 2d Cir.09/08/05), 913 So.2d 874, writ denied, 2005-2567 (La.05/26/06), 930 So.2d 19. When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

Louisiana’s statute on justifiable homicide is found at La. R.S. 14:20(A) and provides:

A. 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.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
| <4(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.

Thus, the statute provides four alternative scenarios in which a defendant might claim a killing was justifiable homicide.

On appeal, Cook simply argues that the state did not disprove his theory of self-defense, because it had no witness to contradict the defendant’s story. That assertion is meritless; no witness is needed when the physical evidence itself disproves self-defense. Most significantly, Randle suffered gunshot wounds from two different guns, and indeed was shot once in the chest with the gun that the defendant claimed never to have touched during the incident. Even on the cold record, Cook’s account of these events is unbelievable, and the jury was again well within its discretion to reject his self-serving version of the facts.

Although not raised as an assignment of error, we are compelled to note that, without objection, the jury was instructed, in part, that:

[A] homicide is not justified when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of |1fithe provision of the Uniform Controlled Dangerous Substances Law.

Likewise, in its closing argument, the prosecutor argued to the jury that if the jury found that Cook was engaged in the distribution of marijuana at the time of the shooting, the defendant was not entitled to claim self-defense. These assertions are not completely accurate considering the wording of the statute.

As noted, La. R.S. 14:20 provides four distinct instances for which justifiable homicide may be claimed. Pursuant to subsection (A)(1), a homicide is justified when the killer reasonably believes that he is in imminent danger of losing his life and that the killing is necessary to save himself from that danger. This was the basis for Cook’s claim both at trial and on appeal. By contrast, subsection (A)(4)(a) provides justification for a homicide that is committed by someone lawfully inside a home against a person who has made an unlawful entry into the home. Arguably, as some of the evidence reflects, this subsection could have also been the basis for Cook’s claim of self defense-although not specifically advanced by him at trial. Under subsection (A)(4)(a), there is no need for the person using force to believe that he is in danger of losing his life; instead, the person need only reasonably believe that the use of deadly force was necessary to prevent the entry or compel the person to leave. These are two separate pathways leading to a claim of justifiable homicide.

Subsection (A)(4)(b), the “drug sale exception” to self-defense referred to by both the trial court in its jury charge and the prosecution in its | ^closing argument, only applies to subsection (A)(4) and not to the rest of subsection A. Notably, subsection (A)(4)(b) refers to “this Paragraph,” obviously referring to (A)(4). Had the “drug sale exception” been intended as an exception to all four scenarios in which justifiable homicide would be acceptable, the Legislature would have provided the exception as a subparagraph to the entire subsection A. As the wording of the statute indicates, even a drug dealer who commits a homicide can still claim self-defense under La. R.S. 14:20(A)(1) if he believes his life is in danger; he simply is not entitled to “shoot the burglar” to compel him to leave under subsection (A)(4). Thus, despite the trial court’s jury instruction and the prosecution’s closing argument, Cook was not necessarily foreclosed from claiming self-defense, even though he was involved in a drug deal.

The general rule regarding errors in the jury charge is that, unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. La. C. Cr. P. art. 841; State v. Belgard, 410 So.2d 720 (La.1982); State v. Robinson, 45,820 (La.App.2d Cir.01/26/11), 57 So.3d 1107, writ denied, 2011-0381 (La.09/16/11), 69 So.3d 1141. Here, notwithstanding the imprecise jury instruction and closing argument, Cook’s trial counsel failed to raise an objection to either; thus Cook failed to preserve the issue for appellate review.

| inCrime Scene Photographs

In his second assignment of error, Cook argues that the trial court erred when it overruled his objections to crime scene photographs. Specifically, he argues that the trial court erred when it allowed the jury to see 16 color photos of the victim’s wounds because the photos were prejudicial to him. We disagree.

Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Washington, 30,-866 (La.App.2d Cir.08/19/98), 716 So.2d 936, writ denied, 98-2473 (La.01/08/99), 734 So.2d 1229; State v. Jackson, 30,473 (La.App.2d Cir.05/13/98), 714 So.2d 87, writ denied, 98-1778 (La.11/06/98), 727 So.2d 444. The cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Langley, 95-1489 (La.04/14/98), 711 So.2d 651. The admission of photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect. State v. Washington, supra.

In this case, the photos in question are not gruesome or unduly prejudicial. Although they indeed show the victim’s corpse and the assortment of bullet wounds the victim suffered during the shooting, there is little to no blood, nor are there photos of any dissected tissue. Beyond that, the photos are strongly relevant to show the nature and location of the victim’s wounds, facts critical to the jury’s determination of how the |TSshooting occurred. The photos allowed the pathologist to explain where the victim was shot and which wounds were entrance or exit wounds. In turn, this evidence helped the jury determine the likelihood of whether the wounds caused by shots fired from the revolver were fired by the victim or by Cook (given his version of events). The photos were relevant for purposes far beyond mere proof of which wounds were fatal to the victim. So considering, we conclude that the trial court correctly overruled Cook’s objection to the admission of the photos, and this assignment of error is without merit.

Scope of Redirect Examination of Witness

In his final assignment of error, Cook maintains that the trial court erred when it allowed redirect examination outside the scope and over defense counsel objection. Specifically, Cook objects to the trial court’s choice to allow further questioning of Dr. Traylor at a point where, normally, questioning would have ceased.

During the testimony of Dr. Traylor, examination proceeded normally; he was called as a witness by the prosecutor, and he was cross-examined by defense counsel. On redirect, the prosecutor asked the doctor about the direction of entry of the fatal wounds to the victim. The trial court allowed defense counsel to ask a recross question; specifically, whether the doctor could determine whether any of the victim’s wounds were self-inflicted. The doctor said that he could not tell whether any of the wounds were self-inflicted and said “I can’t totally exclude it.” At that point, the trial court invited the prosecutor to have a re-redirect question, at |19which point defense counsel said “Excuse me, Your Honor, he’s having a re-redirect?” The court responded, “Well, actually, you had reeross which is not allowed by the Code of Evidence and, therefore, since it’s the prosecution’s witness I think it’s only fair that he has one follow-up question.” The defendant did not further object when the prosecutor asked the doctor whether three self-inflicted gunshot wounds would be within a reasonable degree of medical certainty, and the doctor said, “It would be way down on my list; I would not use the phrase reasonable degree of medical certainty.”

On appeal, Cook maintains that the trial court’s choice to allow this “re-redirect” examination was error. The defendant did not object to the trial court’s ruling on his objection, if the comment made by Cook’s trial counsel can even be called an objection. Assuming arguendo that Cook is entitled to raise this as an issue on appeal, in light of La. C. Cr. P. art. 841(A), he has not shown error in the trial court’s handling of the issue. As the trial court pointed out, it allowed the defendant recross examination, and since the issue was one that was relatively new and the witness was the prosecution’s witness, the trial court acted within its discretion to allow further questioning that actually was in the nature of cross-examination. La. C.E. art. 611(D). Any error in the trial court’s handling of this issue was certainly harmless beyond a reasonable doubt, and this assignment of error is without merit.

| 2qConclusion

Considering the foregoing, the conviction and sentence of Adrian Lamar Cook are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, DREW, LOLLEY and SEXTON (Pro Tempore), JJ.

Rehearing denied.

CARAWAY and SEXTON, JJ., would not consider rehearing, untimely.

      . Cook may have other avenues to pursue this issue, for instance a claim for ineffective assistance of counsel. However, as a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court rather than by appeal. This is because PCR creates the opportunity for a full eviden-tiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.09/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.04/04/08), 978 So.2d 325.