source: Caselaw Access Project

author: CLARK, Justice.

license: Public Domain

text:
    LOUTRE LAND AND TIMBER COMPANY v. Wilton A. ROBERTS, Edward Roberts, Mark A. Roberts and Toni L. Roberts Daschke.
    No. 2010-C-2327.
    Supreme Court of Louisiana.
    May 10, 2011.

      Cotton, Bolton, Hoychick & Doughty, John Hoychick, Jr., Rayville, for Applicant.
    Knight Law Firm, Robert Thomas Knight, for Respondent.
   CLARK, Justice.

hWe granted certiorari to determine whether the court of appeal erred in reversing the trial court’s judgment and in recognizing the defendant as the owner of a disputed tract of property. For the reasons that follow, we find the laws on acquisitive prescription require reversal of the court of appeal’s ruling, and we remand for the determination of issues pre-termitted on appeal.

FACTS AND PROCEDURAL HISTORY

The instant litigation involves a dispute over a tract of land that lies between two contiguous pieces of property that are owned by two separate owners. The Marie Wilson Morgan family owned an 80-acre tract that was described as the “Section 3 Tract” in a recorded deed dating back to 1943. As evidenced by the same recorded deed, the Morgan family also owned twenty acres located adjacent to the Section 3 Tract, lying in the SW/4 of Section 2. The combined land is hereinafter referred to as the “100 Acres.” The Wilton A. Roberts family owned the tract of land that was ^described as the “Section 10 Tract” in a recorded deed. Title to the Section 10 Tract passed from Dorothy Harbour to Wilton A. Roberts and Rebecca Jane Roberts in 1964. Subsequently, Edward W. Roberts (“Roberts”), the defendant, inherited his parents’ interests in the property. The Section 3 Tract is immediately north of the Section 10 Tract, and the “Ideal Boundary” between these two tracts is the governmental section line, separating the SE/4 of the SE/4 of Section 3 Tract and the NE/4 of the NE/4 of Section 10.

A fence, running from east to west, however, is located in the middle of the Section 10 Tract and has been present for well over thirty years. The amount of land lying north of the fence to the Ideal Boundary is approximately 15 acres of property and is hereinafter referred to as the “Disputed Tract.” The record establishes (and no one contests) that the Morgan family adversely possessed the Disputed Tract for more than thirty years via actual acts of corporeal possession.

On July 29, 2002, the Succession of Marie Wilson Morgan (“the Succession”) sold the following land to Loutre Land and Timber Company (“Loutre”) through a full warranty deed, entitled “Act of Sale”:

The South Half of the Southwest Quarter of the Southwest Quarter (S — 1/2 of SW-1/4 of SW-1/4) of Section 2, Township 16 North, Range 8 East, Franklin Parish, Louisiana, and the East Half of the Southeast Quarter (E-l/2 of SE-1/4) of Section 3, Township 16 North, Range 8 East, Franklin Parish, Louisiana, consisting of 100 acres, more or less, including all crop base acres.

Additionally, the deed transferred “all rights of prescription, whether acquisitive or liberative, to which said vendor may be entitled.” Loutre paid the Succession $75,000.00. The deed was recorded on August 5, 2002.

Is After conducting a survey and confirming the Disputed Tract was included in the 1964 title he inherited from his parents, Roberts sought to obtain a quitclaim deed from the Succession (“the Quitclaim Deed”) to recognize his right to the land. The Succession’s attorney, Daniel Wirtz, indicated he believed the Succession had sold the Disputed Tract to Loutre and, therefore, had nothing to transfer to Roberts. However, on January 29, 2003, the Succession ultimately executed the Quitclaim Deed in favor of Roberts in exchange for $3,000.00. The Quitclaim Deed was recorded on February 27, 2003, and conveyed to Roberts the following property without warranty:

Beginning at the northeast corner of Northeast Quarter of Northeast Quarter of Section 10, Township 16 North, Range 8 East, and running due west along the north line of said forty to the Northwest corner thereof, thence due south a distance of 15.50 chains, thence due east to the eastern boundary of said forty, thence due north a distance of 15.50 chains, to the northeast corner of said forty and the point of beginning, containing 32 acres, more or less, in the Northeast Quarter of Northeast Quarter of Section 10, Township 16 North, Range 8 East.

Subsequently, in June 2003, Roberts entered the Disputed Tract and “bush hogged” a path in an effort to erect a new fence to establish the boundary described in the Quitclaim Deed. In doing so, he destroyed pine seedlings that had been planted along the fence by Loutre and created ruts in the land. Loutre filed suit, contending it owned the Disputed Tract insofar as it tacked the possession of its ancestor, the Morgan family. In its petition for damages, Loutre asserted claims for trespass and property destruction. Roberts answered and filed a reconven-tional demand, arguing he owned the Disputed Tract and should be compensated for loss of rental income.

On October 7, 2004, Loutre filed a motion for partial summary judgment, asking the trial court to recognize the fence as the proper boundary. Finding Loutre to be the rightful owner of the property by virtue of acquisitive prescription, the trial court entered judgment in favor of Loutre on June 2, 2005. After a trial on the merits |4to determine the amount of damages, the trial court awarded Loutre $15,250.00.

Roberts appealed the grant of the partial summary judgment and the amount of damages. The court of appeal found there was a genuine issue of material fact regarding the intent of the Succession and Loutre as to what land was actually being transferred pursuant to the full warranty deed. Accordingly, the court of appeal found summary judgment was inappropriate and remanded the matter to the trial court to conduct a trial on the issue of intent. Loutre Land and Timber Co. v. Roberts, 42,918 (La.App. 2 Cir. 4/16/08), 981 So.2d 775, unit denied, 08-1422 (La.10/31/08), 994 So.2d 535.

On remand, the trial court heard testimony and accepted evidence relative to the intent of the Succession and Loutre in executing the Act of Sale. The trial court ruled in favor of Loutre, finding the parties intended to convey all of the land north of the fence, including the Disputed Tract. Recognizing Loutre as the owner, it then awarded it $17,750.00 in damages. Both Loutre and Roberts appealed.

The court of appeal reversed the judgment of the trial court and remanded the case to fix the boundaries in accordance with the parties’ surveys. Loutre Land and Timber Co. v. Roberts, 45,355 (La.App. 2 Cir. 8/4/10), 47 So.3d 478. In reaching this conclusion, the court of appeal held that the fact the Succession was the “ancestor in title” to both Roberts and Loutre placed the issue outside the scope of a typical boundary action when one party claims acquisitive possession and the other relies on title. Accordingly, it conducted an analysis under “something other than [Civil Code] Article 794” in order to rank the competing transfers. The court of appeal began by | ¡¡acknowledging the Morgan family’s possession extended beyond thirty years and, thus, the Succession acquired the right to sell the property via acquisitive prescription. Next, the court of appeal recognized that Loutre continued the possession by virtue of planting the seedlings. Thus, it classified Roberts as an adverse possessor due to his act of bush hogging the land. Pursuant to La. C.C.P. art. 3654, then, Roberts was required to show “he had acquired ownership from a previous owner.” Ultimately, by turning to the public records doctrine, the court of appeal found Roberts satisfied this burden. In particular, it found the Quitclaim Deed to Roberts specifically described the Disputed Tract while the Act of Sale to Loutre did not. As such, the deeds represented separate transfers of differently described immovables. Further, the court of appeal noted that Roberts was a third party to the transfer between the Succession and Loutre, and he could have concluded that the Succession intended to sell the 100 acres separate from the Disputed Tract. Under the law of registry, then, it determined Roberts’ deed was superior to Loutre’s deed. Finally, the court of appeal dismissed Roberts’ claims for damages, finding no support in the record to justify an award.

Judge Moore dissented, finding La.Civ. Code art. 794 clearly governed and ^mandated a ruling different from that reached by the majority. He agreed that the Morgan family possessed the property for more than thirty years; therefore, the Succession acquired the right to sell it to Loutre. However, he disagreed that the public records doctrine had any relevance and opined that to the extent it could somehow trump acquisitive prescription, the doctrine would not work in favor of Roberts. Rather, the Act of Sale that conveyed 100 acres “more or less ... together with all rights of prescription, whether acquisitive or prescriptive, to which said vendor may be entitled” clearly evidenced the intent by the Succession and Loutre to transfer all of the property north of the fence, including the Disputed Tract. Because (1) the Act of Sale conveyed the property to Loutre and (2) a quitclaim deed can only convey whatever interest the seller actually has in the property, the Succession had nothing to sell when it executed the Quitclaim Deed in favor of Roberts. Thus, nothing was transferred to Roberts. Additionally, Judge Moore believed the majority ignored the manifest error standard by failing to give credit to the trial court’s credibility determinations that led it to find such intent indeed existed.

Loutre filed a writ application in this court, contending the court of appeal committed error. We granted certiorari to determine who is the rightful owner of the Disputed Tract. Loutre Land and Timber Co. v. Roberts, 10-C-2327 (La.1/7/11), 52 So.3d 879.

APPLICABLE LAW

“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.” La.Civ.Code art. 3424. “The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivocal.” La.Civ.Code art. 3476. “Ownership and other |7real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La. Civ. Code art. 3486. “For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.” La.Civ. Code art. 3487.

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” La.Civ.Code art. 794. “Possession is transferable by universal title or by particular title.” La.Civ.Code art. 3441. “The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.” La.Civ. Code art. 3442.

In Marks v. Zimmerman Farms, LLC, 44,279, pp. 11-12 (La.App. 2 Cir. 5/20/09), 13 So.3d 768, 774-75, the Louisiana Second Circuit Court of Appeal succinctly explained tacking as it relates to La.Civ.Code art. 794:

The legal principles which govern tacking under La. C.C. art. 794 are in some respects different and distinct from the principles which govern tacking under La. C.C. arts. 3441 and 3442. La. C.C. art. 794 deals with boundary prescription, strictly speaking, while La. C.C. arts. 3441 and 3442 provide general rules which refer in broader terms to acquisitive prescription of property, generally. Brown v. Wood, [451 So.2d 569 (La.App. 2 Cir.1984), writ denied, 452 So.2d 1176 (La.1984) ].
In Brown v. Wood, supra, this court noted that tacking under La. C.C. art. 794 is different from tacking under the general tacking provisions of La. C.C. arts. 3441 and 3442 in the following respect:
Under Article 794, the privity of title between the possessor and his ancestor in title need not extend to the property to which the possessor asserts prescriptive title; under Article 794, the juridical link, or written instrument which passes to the possessor from his ancestor in title need not encompass or include the particular property to which the possessor claims prescriptive title. On the other | shand, it is generally conceded under the general tacking provisions of Articles 3441 and 3442 and their statutory pre-cursors, that tacking is only allowed with respect to property that is included and described in the juridical link between the possessor’s ancestor in title and the possessor himself.
Simply stated, under Art. 794 (old Art. 852), one may utilize tacking to prescribe beyond title on adjacent property to the extent of visible boundaries, but under the general prescriptive articles, Arts. 3441 and 3442, tacking may be utilized to prescribe only to the extent of title.

DISCUSSION

The record establishes that the Morgan family corporeally possessed the Disputed Tract for more than thirty years, prior to the sale of the land to Loutre. The possession was continuous, uninterrupted, peaceable, public, and unequivocal. Thus, the Succession was legally entitled to sell the land. The Succession then executed the Act of Sale with Loutre, transferring the 100 acres “more or less,” “together with all rights of prescription, whether acquisitive or liberative, to which said vendor may be entitled.” This full warranty deed, then, served as the juridical link. As explained above, the deed is not required to include the particular property to which the possessor claims prescriptive title, namely, the Disputed Tract. Rather, La. Civ.Code art. 794 allows a party to tack onto the possession of its ancestor in title if the possession occurs without interruption. If the combined possession spans thirty years, the party is entitled to have the boundary fixed along the visible bounds of the possession. Lou-tre, by planting the pine seedlings along the fence, continued the possession of the Succession, making the fence the proper boundary line. As such, the trial court correctly determined.Loutre is the proper owner of the Disputed Tract. The inquiry ends after this straightforward application of La. Civ.Code 794.

InThe court of appeal, however, felt “something other than 794 must be considered” because the Succession was the seller to both parties. We find nothing in Louisiana’s codal or jurisprudential authority to justify this assertion or to require an analysis under the public records doctrine. However, even if it could be argued that the Act of Sale to Loutre was required to include a specific description of the Disputed Tract, we find the language in the deed to be sufficiently particular. Namely, the Act of Sale conveys “more or less” the 100 acres together with all acquisitive prescription rights to which the seller was entitled. It is clear from the four corners of the deed that the Succession was selling all of its interests in the property.

Additionally, this exact issue of intent was decided by the trial court on remand. The Succession’s attorney, Daniel Wirtz, unequivocally testified that the parties intended to convey all the land north of the fence, including the Disputed Tract. Roberts attempted to discount this testimony by suggesting Wirtz’s memory of the sale was less than accurate. In particular, Roberts asserted the file on the matter had been destroyed; Wirtz could not correctly recall the amount of the consideration tendered in exchange for the Quitclaim Deed; and he could not remember who received the proceeds of the Quitclaim Deed. Furthermore, Roberts presented testimony in an attempt to show that the parties acknowledged the amount paid was $750.00 per acre for a total of $75,000.00. Thus, the parties must have intended to sell only the 100 acres. Ultimately, the trial court, after weighing the evidence and making credibility determinations, decided that both the Succession and Loutre intended to sell all of the property north of the fence. The court of appeal erred, then, by not giving deference to the trial court’s factual finding on this issue without mention or application of the manifest error standard of review. Rather, the | incourt of appeal simply noted “... [t]he Succession could have intended to sell the Disputed Tract and the 100 Acres separately to different parties.” This speculation ignores the significant fact that a trial occurred to determine this very issue and a factual finding was made by the trial court.

Thus, we conclude that La.Civ.Code art. 794 does not require particular title to the Disputed Tract in order to convey the accompanying acquisitive prescription rights to that land. Rather, the continued possession of the land to the fence’s boundary by the Succession and Loutre for over thirty years mandates a finding that Loutre owns the Disputed Tract. In fact, because the law operates in favor of Loutre in the absence of a particularized description of the land, the Act of Sale would have required a clause excluding the Disputed Tract if that had been the parties’ intent. Even if the law could be read to require a deed’s inclusion of all the land subject to transfer, the language of the Act of Sale was specific enough to effect a transfer of the Disputed Tract. Lastly, even if the language lacked specificity, the trial court made a factual determination that the parties intended to include the Disputed Tract, and, without a finding of manifest error or clear abuse, the court of appeal was not authorized to disturb that finding.

DECREE

For the foregoing reasons, we reverse the ruling of the court of appeal and remand the matter to the court of appeal to rule on the assignments of error asserted by Loutre, which were necessarily preter-mitted by the court of appeal’s ruling.

WEIMER, Justice, concurs.

REVERSED AND REMANDED.

      . The deed described the "Section 3 Tract” as "East half of the Southeast Quarter (E/2 of SE/4), of Section 3, Township 16 North, Range 8 East.”

      . The deed described the "Section 10 Tract” as "[t]he North 15.50 chains (or 1023 feet) of the Northeast Quarter of the Northeast Quarter (NE/4 of NE/4) of Section 10, Township 16 North, Range 8 East.”

      . The parties' references to the size of this disputed area vary from 14.36 acres to 18 acres.

      . La.Civ.Code art. 794 provides:
      When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

      . La.C.C.P. art. 3654 provides:
      When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:
      (1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous ■ owner or by acquisitive prescription; or
      (2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

      . Several witnesses provided uncontradicted testimony that the Morgan family farmed and/or hunted on the land up unto the fence’s boundary dating back to as early as 1959. Additionally, Roberts does not contest this finding of corporeal possession by the Succession.


text:
    Irina FRIEDMAN v. Leslie Boyd FRIEDMAN.
    No. 2011-OC-1192.
    Supreme Court of Louisiana.
    June 10, 2011.
   ORDER

Granted. The December 14, 2010, transcript clearly reveals that the trial court ordered the parties to prepare a written judgment. Therefore, the March 29, 2011, written judgment is the “ruling” at issue for purposes of Rule 4-3. See Kosmitis v. Bailey, 96-1573 (La.10/4/96), 680 So.2d 1167. Accordingly, the ruling of the court of appeal is set aside, and the case is remanded to the court of appeal to rule on the merits of the application.

JOHNSON, J., would stay the hearing and obtain an opposition.


text:
    In re Earl M.J. BOYDELL, Jr.
    No. 2011-OB-0990.
    Supreme Court of Louisiana.
    June 14, 2011.
   ORDER

The Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent, a suspended lawyer, engaged in the unauthorized practice of law. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Earl M.J. Boydell, Jr., Louisiana Bar Roll number 3353, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Earl M.J. Boydell, Jr. for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Earl M.J. Boydell, Jr. shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Bernette J. Johnson /s/ Justice, Supreme Court of Louisiana


text:
    In re Mark W. ROGERS.
    No. 05-OB-1006.
    Supreme Court of Louisiana.
    June 17, 2011.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Rogers, 05-1006 (La.5/17/06), 930 So.2d 896, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ Greg Gerard Guidry /s/ Justice, Supreme Court of Louisiana


text:
    In re Tara E. FONTENOT.
    No. 06-OB-0795.
    Supreme Court of Louisiana.
    June 17, 2011.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Fontenot, 06-0795 (La.4/12/06), 925 So.2d 1214, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ Bernette J. Johnson /s/ Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    Tony L. NOTO, Jr. v. KENTWOOD AUTOPLAZA, LLC, Daimlerchrysler Corporation and/or Daimlerchrysler Motors Corporation, and/or Chase Auto Finance Corp.
    No. 07-CC-2221.
    Supreme Court of Louisiana.
    June 17, 2011.
   PER CURIAM.

11 Plaintiff, Tony Noto filed the instant writ application in 2007, seeking review of a ruling of the 21st Judicial District Court for the Parish of Tangipahoa denying plaintiffs motion for preliminary default against DaimlerChrysler Corporation and DaimlerChrysler Motors Corporation. After the application was filed, Daimler-Chrysler Corporation and DaimlerChrys-ler Motors Corporation advised this court the matter was removed to federal court. Thereafter, the federal court issued a limited remand for purposes of allowing this court to resolve plaintiffs pending writ application. However, prior to this court’s consideration of the application, Daimler-Chrysler Corporation and DaimlerChrys-ler Motors Corporation filed a “Notice of Suggestion of Bankruptcy,” indicating they filed a petition for bankruptcy on April 30, 2009. Based on the bankruptcy stay, this court took no action of the writ application.

On April 13, 2011, plaintiff filed a pleading captioned “Rule to Show Cause of Tony Noto, Jr.” In that pleading, plaintiff raised questions as to whether the Chrysler entities named as defendants in the instant suit (DaimlerChrysler Corporation and DaimlerChrysler Motors Corporation) are the same Chrysler entities in bankruptcy. Pursuant to plaintiffs motion, we issued a rule to show cause to | gDaimlerChrysler Corporation and Daim-lerChrysler Motors Corporation, directing them to submit “a copy of any filing for bankruptcy by such entities or any proof that there is any cause as to why this matter should not be re-opened and the writ that is pending be considered for ruling by this court.”

Pursuant to that order, defendants submitted a response indicating the entities formerly known as “DaimlerChrysler Corporation” and “DaimlerChrysler Motors Corporation” are no longer in existence. According to defendants, these two entities underwent name changes that eventually led them to being known as Chrysler, LLC and Chrysler Motors, LLC, each of which filed for bankruptcy protection. Subsequently, both of these entities were dissolved, and their assets are included in the Old Careo Liquidation Trust. According to defendants, the bankruptcy court issued an order enjoining plaintiff from “commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind against” any of the bankrupts in In re Old Careo LLC (f/k/a Chrysler LLC), et al., Case No. 09-50002, 2009 WL 1169382 (S.D.N.Y.). Thus, defendants maintain plaintiff is permanently enjoined from continuing this litigation or otherwise prosecuting his claims, in any manner.

In response to defendants’ filing, plaintiff filed an opposition. Essentially, plaintiff argues the true defendant in this matter is Daimler AG, an entity which was never discharged in bankruptcy. Plaintiff indicates additional discovery is necessary on this issue.

Based on the information submitted, we believe defendants produced evidence establishing DaimlerChrysler Corporation and DaimlerChrysler Motors Corporation have been discharged in bankruptcy. However, we also recognize plaintiff indicates 13that after appropriate discovery, he could produce evidence disputing defendants’ evidence. .

Accordingly, without reaching the merits, we will dismiss plaintiffs application without prejudice, reserving plaintiffs right to refile his application in the event a court determines his suit against Daimler-Chrysler Corporation and DaimlerChrys-ler Motors Corporation remains viable.


text:
    In re Charmaine L. MARCHAND.
    No. 2011-B-0968.
    Supreme Court of Louisiana.
    June 17, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter and failed to communicate with a client. Thereafter, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Charmaine L. Marchand, Louisiana Bar Roll number 26986, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Timmy James FONTENOT.
    No. 2011-B-0989.
    Supreme Court of Louisiana.
    June 17, 2011.
   PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, charged an excessive fee, and made misrepresentations. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Timmy James Fontenot, Louisiana Bar Roll number 28738, be suspended from the practice of law for a period of one year. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty-days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Bradley J. TREVINO.
    No. 11-OB-0805.
    Supreme Court of Louisiana.
    June 17, 2011.
   PER CURIAM.

11 After reviewing the evidence and considering the law, we conclude petitioner, Bradley J. Trevino, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner must execute a new five-year recovery agreement with the Lawyers Assistance Program (LAP).

2. The period of this conditional admission shall coincide with the period of petitioner’s LAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the Office of Disciplinary Counsel (ODC).

4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5.Following receipt of the report from LAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|¾6. Petitioner shall cooperate with LAP and the ODC, and shall comply with any and all requirements imposed upon him by LAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

CLARK, J., would deny.

       Chief Justice Kimball not participating in the opinion.


author: CHARLES R. JONES, Judge. McKAY, J.,

text:
    Daisy J. PALMER, et al. v. ZULU SOCIAL AID AND PLEASURE CLUB, INC., et al.
    No. 2009-CA-0751.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 1, 2010.
    Writ Denied May 28, 2010.

      Edwin R. Fleischmann, Jr., Fleischmann Law Firm, Metairie, LA, for PlaintifflAp-pellant, Daisy J. Palmer.
    Thomas R. Hightower, Jr., Michael S. Harper, Wade Kee, Law Offices of Thomas R. Hightower, Jr., Lafayette, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge, JAMES F. McKAY, III, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

|, The appellants, Daisy Johnson Palmer and her husband Alfred M. Palmer, (the Palmers) seek review of a district court judgment which granted the motion for summary judgment of the named defendants/appellees: Zulu Social Aid and Pleasure Club, the T.H.E. Insurance Company, Namaan C. Stewart, and ABC Insurance Company. We Affirm.

This action arises out of an incident which occurred on Tuesday, February 28, 2006, Mardi Gras Day, at about noon.

Mrs. Palmer, a retired Orleans Parish public school teacher, was a spectator in a crowd watching a Zulu parade at Canal & Dauphine Streets in New Orleans, accompanied by her husband, Mr. Palmer. Suddenly, a float rider, Mr. Stewart, allegedly threw five coconuts in quick succession, and one allegedly struck Daisy Palmer in the left side of her head, while she was looking for the next float in succession of the parade.

As the result of the subject incident, Mrs. Palmer sustained personal injuries which included a laceration of the forehead at the eyebrow, bleeding, as well as treatment for anxiety, depression, a loss of interest in Mardi Gras, and nightmares of coconuts striking her.

|j>The incident was captured by two videos, one recorded by Mr. Palmer; the second was recorded by a bystander, Mr. Bruce Welk, from Lewisville, Texas. Mr. Welk’s video clearly captures the float rider throwing five coconuts in quick succession, toward the front of the float. Mr. Welk dubbed this the “Coconut Artillery.” The other DVD, that is, the Palmers’ video, shows the float rider, Mr. Stewart (Mr. Stewart), wearing a sash bearing his name, and the audio captures a spectator yelling “Namaan, Namaan.”

The Palmers filed suit the against the named appellees, Zulu Social Aid and Pleasure Club, the T.H.E. Insurance Company, Mr. Stewart, and ABC Insurance Company, seeking damages for injuries sustained by Mrs. Palmer via the alleged negligent acts of Mr. Stewart, his insurer, the Zulu Social Aid and Pleasure Club and its insurer. After discovery, the appellees filed motions for summary judgment.

At the hearing on the motion for summary judgment, the district court granted the motions for summary judgment, dismissing Zulu Social Aid & Pleasure Club, Inc., T.H.E. Insurance Company, and Mr. Stewart from the lawsuit, via judgment dated on February 17, 2009. Aggrieved by the judgment, this timely appeal followed.

By their sole assignment of error, the Palmers argue that district court erred manifestly in improperly ruling that:

1. Zulu is entitled to summary judgment, and;
2. The Palmers are unable to establish gross negligence on the part of defendants as a matter of law, citing to La. R.S. 2796.

| oThis Court reiterated the standard of review on a motion for summary judgment as follows:

Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). An appellate court reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 00-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670. Under this standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Sanchez v. Harbor Const. Co., Inc., 2008-0316, pp. 3-4 (LaApp. 4 Cir. 10/1/08), 996 So.2d 584, 587.

The Palmers argue that Mr. Stewart’s action of throwing coconuts from the float was done without “want of even slight care and diligence.” The Palmers assert that if such actions were not negligent, then why would Zulu Social Aid and Pleasure Club have rules expressly forbidding such behavior. In support of their argument that Mr. Stewart was negligent, the Palmers point to the rules found at Appendix II, All Float Riders, and Appendix III, Zulu Rules 10-21, which read in pertinent part as follows:

Do not toss throws to the front or rear of floats, or in the formation or disbanding areas.
The throwing of coconuts during the Zulu parade is positively forbidden. Coconuts will only be given out hand to hand.

|4The Palmers argue that the best evidence of negligence can be plainly seen in the two DVDs admitted in the record in which, they contend, Mr. Stewart can be seen throwing five coconuts into the crowd. One of these coconuts purportedly hit Mrs. Palmer in the back of the head.

Because of this videotaped evidence, the Palmers argue that it is reasonably foreseeable that throwing that number of coconuts in that manner is dangerous and reckless behavior.

The Palmers note that the district court relied on Ambrose v. New Orleans Police Department Ambulance Service, et al., 93-3099, 639 So.2d 216 (La.1994), to define gross negligence “as the want of even slight care and diligence, and an entire absence of care and amounts to wanton or reckless behavior.” Ambrose, 639 So.2d at 219 citing State v. Vinzant, 200 La. 301, 7 So.2d 917 (La.1942). However, the Palmer’s maintain that the district court’s findings were incorrect.

To distinguish Ambrose, the Palmers cite Brown v. Lee, 929 So.2d 775 (La.App. 4 Cir. 4/5/06). In Brown, a spectator at the Mardi Gras Day Zulu parade filed suit against a Zulu Club member for being hit in the face by a coconut thrown in an overhand fashion from a parade float. The coconut was allegedly thrown a considerable distance from the Mardi Gras float as the float, in the Zulu parade, was turning-a corner. Ms. Brown was hit in the face, rendered momentarily unconscious, and was treated at an emergency room shortly after the incident. J^After seeking treatment post incident due to recurrent pain in the injury location, she was diagnosed with an orbital fracture.

Ms. Brown filed suit alleging that Mr. Lee, the rider who threw the coconut to her, was grossly negligent in throwing a coconut in an overhand manner “a distance approximately equivalent to one and a half times the length of a large automobile.” Ms. Brown sought to hold Mr. Lee, Zulu, and its insurer liable for her injuries. Id., p. 2, 929 So.2d at 776.

In support of the motion for summary judgment, Mr. Lee submitted an affidavit stating that he was attempting to give Ms. Brown a coconut, because he recognized her as an acquaintance. Id., p. 2, 929 So.2d at 776-777. He further stated in his affidavit that he never intended to harm Ms. Brown. Id., p. 2, 929 So.2d at 777. Additionally, an affidavit was executed on behalf of the Zulu organization by its president. In that affidavit, which was also submitted in support of the motion for summary judgment, the President of the Zulu organization stated that at the time of the alleged incident, Zulu Social Aid and Pleasure Club was staging a Mardi Gras parade pursuant to a permit issued by the City of New Orleans. He also stated that the Zulu organization only allows coconuts to be handed, not thrown, to spectators at its parades.

The district court determined that the defendants would not be liable to Ms. Brown even if she were able to prove all of her allegations, because the district court found that the defendants were exempt from liability under La. R.S. 9:2796, | fiaIso referred to as the Mardi Gras Immunity Statute (MGIS). Ms. Brown appealed.

On appeal, this Court held that the contention of the parties presented a material issue of fact, and that it was clear that wanton and grossly negligent acts of members of parading organizations are not included within the grant of immunity of La. R.S. 9:2796. Id. We stated:

Unlike the trial court, we believe that throwing a coconut in the manner Mrs. Brown contends it was thrown constitutes gross negligence. We believe that throwing a hard, heavy object, such as a coconut, at someone in a crowd of people equal to the length of one and one-half cars, in an overhead manner, demonstrates the want of even slight care and diligence, that is the very definition of gross negligence. The Zulu organization prohibits members from throwing coconuts into a crowd, and only permits its members to disseminate coconuts to parade spectators by handing them to the intended recipient. If Mr. Lee did not follow the rules of the Zulu organization with respect to distributing coconuts along the parade route, and instead threw a coconut in Mrs. Brown’s direction in the manner alleged by her, he was grossly negligent. If, on the other hand, Mr. Lee handed the coconut that hit Mrs. Brown in a manner that was not grossly negligent, then he is shielded from liability by the provisions of the statute. We find a genuine issue of material fact.

Id., p. 2, 929 So.2d at 776-777.

In the matter sub judice, the Palmers also argue that Mr. Stewart’s actions were “more egregious than what the float rider did in the Brown case.” Although they acknowledge and recognize that Zulu makes an important contribution to the |7New Orleans community, and that it is a genuine Mardi Gras attraction, they note Mr. Stewart’s acts violated Zulu’s own rules.

The Palmers also maintain that in determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence on a motion for summary judgment. Furthermore, the Palmers note that the appellees had previously filed a motion for summary judgment while the matter was before the district court. They note that the prior motion for summary judgment was denied, and in its reasons, the district court noted:

Both sides submitted DVDs of the incident. After reviewing the footage, the court is of the opinion that a genuine issue of material fact exists as to whether the coconuts were thrown in a manner that would constitute gross negligence.

In addition, the Palmers pose the rhetorical question “how can this not be gross negligence where Mr. Stewart throws five coconuts in quick succession into a crowd from the rear of the float, all in contravention of Zulu’s own rules?” They argue that the rules are in place for a reason. They assert: first, if you throw five coconuts in quick succession, someone in the crowd is likely to get hit; and second, throwing from the back of the float is intended for the idea that once the float passes, spectators direct their attention to the next float in the parade procession. The Palmers assert that this exactly is what happened to Mrs. Palmer. They not that as Mrs. Palmer turned her attention from the float which had just passed and she was hit in the side of the face while looking for the parade float.

The appellees argue that neither of the videos/DVDs relied on by the Palmers depict Mrs. Palmer actually being struck. In fact, there is no evidence she was actually struck. Additionally, the Appellees’ characterize the video made by |sBruce Welke (identified as one of the videographers) as not supported by the record in this matter. The appellees note that Mr. Welke has never been deposed and the record is void of any testimony by him. Hence, the ap-pellees assert that any reference or characterization regarding Mr. Welke, other than merely as a videographer, should be stricken.

Mrs. Palmer claims to have never seen the coconut which struck her and cannot say whether it was thrown by Mr. Stewart. Despite being surrounded by people calling Mr. Stewart’s name for coconuts, and being specifically aware that several coconuts had been thrown and were airborne and headed in her direction, she did not try to catch them, nor did Mrs. Palmer take cover. Rather, she turned her attention away from the thrown coconuts (while they were in the air) to look behind the float to see what may be coming next.

In particular, the appellees rely upon the testimony of Mrs. Palmer herself, as follows:

Q. Okay. And you saw the coconuts in the air that are on this DVD?
A. Yes.
Q. Okay. And you decided or made whatever judgment you made that you didn’t need to do anything, and you tuned your attention elsewhere before you knew where they were going to land?
A. I figured I was far back. I just, you know, just was in the back. I had no idea a coconut would come-you know, strike me back there.

The appellees note that the very videos sought to be relied upon by the Palmers nevertheless establish that Mrs. Palmer is m front, next to the barricades, as opposed to “in the back.” After reviewing the video again during her deposition, Mrs. Palmer ultimately conceded that she was in the front next to the barricade:

|aQ. Did you see where it looked like you were against, you know, up against the barricade, rather, or near the barricade?
A. Yes.
Q. And you’re saying that was not your location at the time you complain of versus after?
A. I recall holding the barricade after I was struck. I think I kind of leaned against the barricade, but — .

Mrs. Palmer’s contention that her attention was turned away (to the next float in line) after Mr. Stewart had lobbed the coconuts is also suspect after reviewing the DVD:

Q.... And if the cameraman was behind you, as you’ve indicated both your husband and the Texas gentleman were, then you would have been-they [the coconuts] would have been coming in your direction or not?
A. I don’t know how to respond to that.
Q. Well, I’m afraid I’m entitled to an answer.
A. It would seem that way.
Q. In which case, you would think that you would have continued to watch the coconuts coming, right?
A. No.
Q. Well, you agree that neither DVD shows anything coming directly behind the float. Will you agree with that?
A. Yes.
Q. So there was nothing to turn your head away, at least to the right, correct, or behind the float?
A. Not in that, from the film, from the DVD.

1 ^Furthermore, the appellees argue that it was also revealed during the course of Mrs. Palmer’s deposition that she has suffered from glaucoma, a degenerative eye condition which destroys the optic nerve, for over twenty (20) years.

Although the Palmers contend the throwing of the coconut underhand was somehow extreme and outrageous conduct, their impression was much different at the time of the incident. Both even agreed that, given the circumstances, Mr. Stewart’s actions were reasonable. The appel-lees note that Mr. Palmer testified:

Q. You would agree that the direction that the coconuts are lobbed or tossed underhanded, in an underhanded manner, are in the direction of the crowd and people in the crowd around you, saying either the name or asking for a coconut or what have you?
A. Yea, I would agree to that.
Q. Okay. And that was the — You would agree that that was the logical response for the float rider, such as Mr. Stewart, to try to accommodate or appease the people?
A. I would agree to that, too. Further, neither plaintiff believed that Mr. Stewart was intentionally trying to hurt anyone, or had any ill will toward the plaintiff.

In 2004, the Krewe of Zulu took voluntary steps, despite the statutory grant of immunity, to increase parade-goer safety by adopting the use of “lightweight” coconuts in its parades. The new lightweight coconuts, which consist of only the shell, weigh only four (4) to five (5) ounces each. The use of these coconuts was first adopted in the 2005 parade.

The appellees note that the original or “traditional” type coconuts were regular, full coconuts which were simply purchased from local produce suppliers or grocery stores. The coconuts were shaved and decorated, but they were not h followed out. The appellees note that these traditional coconuts were the ones being used at the time the MGIS was amended in 1987 to provide immunity for the hurling of coconuts.

Louisiana R.S. § 9:2796, entitled Limitation of liability for loss connected with Mardi Gras parades and festivities; fair and festival parades, expressly grants a limitation of liability for loss connected with Mardi Gras parades, and provides in pertinent part:

A. Notwithstanding any other law to the contrary, no person shall have a cause of action against any krewe or organization, any group traditionally referred to as Courir de Mardi Gras, or any member thereof, which presents Mardi Gras parades, including traditional rural Mardi Gras parades, processions, or runs in which participants ride on horseback, march, walk, or ride on horse drawn or motor drawn floats, or wheeled beds, or other parades, whether held on a public or private street or waterway, or in a building or other structure, or any combination thereof, connected with pre-Lenten festivities or the Holiday in Dixie Parade, or against any nonprofit organization chartered under the laws of this state, or any member thereof, which sponsors fairs or festivals that present parades or courirs, for any loss or damage caused by any member thereof, during or in connection with or related to the parades or courirs presented by such krewe or organization, unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization, or any member thereof 112as the case may be, or unless said member was operating a motor vehicle within the parade or festival and was a compensated employee of the krewe, organization, or courir. The provisions of this Section shall not be intended to limit the liability of a compensated employee of such krewe or organization for his individual acts of negligence.

We note that in its reasons for judgment, the district court concluded that La. R.S. § 9:2796 grants a limitation of liability for loss connected with Mardi Gras parades, relying upon Ambrose v. New Orleans Police Department Ambulance Service, et al, 639 So.2d 216 (La.1994), as controlling. Particularly, the court indicated,

Gross negligence has been defined as “want of even slight care and diligence’, ‘entire absence of care’, and amounts to wanton or reckless behavior.
The court finds from all of the facts and evidence presented, that plaintiffs are unable to establish negligence on the part of defendants as a matter of law, and therefore plaintiffs have no cause of action against defendant, pursuant to La. R.S. 9:2796.

This Court has recognized in Gardner v. Zulu Social Aid and Pleasure Club, 98-1040 (La.App. 4 Cir. 2/10/99), 729 So.2d 675, that it can be assumed that the legislature weighed the public utility of Mardi Gras parades against the risks ordinarily associated -with these events (such as being struck by thrown, tossed or hurled coconuts) in enacting La. R.S. 9:2796. We went on to hold that “the immunity granted by La. R.S. 9:2796 represents a decision by the legislature that the public utility of Mardi Gras parades outweighs the risks normally associated with such events.” Id., 98-1040, p. 7, 729 So.2d at 679.

Further, in Graves v. Krewe of Gladiators, Inc., 01-0986 (La.App. 4 Cir. 6/27/01), 790 So.2d 155, this Court recognized that the legislature’s intent was to protect Mar-di Gras krewes from liability because of the high cost of obtaining | ^insurance. Id., p. 8,790 So.2d at 159. This Court further stated that “the legislature took into account that parade organizations need relief from high insurance rates or from the failure to obtain any insurance based on claims concerning parade festivities that were not caused by the deliberate and wanton act of gross negligence of the krewe/organization.” Id.

In this case, there is no indication that the Palmers have met their burden in establishing that Mr. Stewart threw coconuts in a way that was negligent or foreseeably injurious to a spectator. Additionally, our review of the record does not establish that any genuine issues of material fact exist as to the negligence of Mr. Stewart because La. R.S. 9:2796 grants immunity to the defendants.

While the Palmers rely on Brown v. Lee, infra, for the contention that immunity does not attach to the appellees, Brown is clearly distinguishable in that Ms. Brown suffered a severe injury of her eye socket. Further considering that the plaintiff in Brown, had independent witnesses who both saw the distance from which the coconut was hurled, and the reckless and wanton manner it was hurled through the air, and further considering the fact that incident in Brown took place before the “new coconuts” were used by the Krewe of Zulu, the matter sub judice is quite different.

Our review of the two short videos of the incident, taken by Mr. Palmer and Mr. Welke, reveal that Mrs. Palmer was standing at the front of the crowd next to the police barricade. Mr. Stewart’s name, can be heard being called out by several people surrounding Mrs. Palmer. Mr. Stewart allegedly threw a coconut to the crowd in the direction of the person calling his name. However, upon viewing the video, it is not apparent that the coconut was thrown in an underhanded manner towards the crowd behind the barricades.

11.[The videos do not show Mrs. Palmer being struck by a coconut, much less establish that a coconut thrown by Mr. Stewart struck Mrs. Palmer. Mr. Stewart has testified specifically that he did not throw the coconut which struck Mrs. Palmer. The Palmers clearly have not met their burden in establishing that they can defeat the motion for summary judgment. Furthermore, it is generally held that,

[A] motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together "with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). Pursuant to this article, the burden of producing evidence at the hearing on' the motion for summary judgment is on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Cyprien v. Board of Sup’rs ex rel. University of Louisiana System, 2008-1067, p. 5 (La.1/21/09), 5 So.3d 862, 866, 243 Ed. Law Rep. 991 (citing Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058; Babin v. Winn-Dixie Louisiana, 00-0078 (La.6/30/00), 764 So.2d 37.)

Hence, based on our review of the foregoing, we find that the Palmers’ assignment of error is without merit.

DECREE

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

McKAY, J., Dissents.

McKAY, J.,

Dissents.

IT respectfully dissent from the majority opinion and would reverse the trial court’s granting of summary judgment in favor of the defendant. Both the trial court and the majority rely on their interpretations of certain evidence in the record. It is my belief that reasonable persons could view this evidence in different ways. Therefore, this creates a genuine issue of material fact. As such, summary judgment is not appropriate.

      . This Court notes that on appeal, a motion for summary judgment is subject to a de novo review, not a manifest error review.

      . In Ambrose, 639 So.2d 216 (La.1994), a wrongful death and survival action was filed against the New Orleans Police Department and emergency medical technicians (EMT) asserting gross negligence which purportedly reduced a heart attack victim’s chance of survival. The district court entered a verdict in favor of survivors. Both parties appealed. The Court of Appeal, 627 So.2d 233, affirmed. The City of New Orleans and EMTs sought writ of certiorari. The Supreme Court, granted the writ and held that: (1) erroneous jury charges did not dispense with clearly wrong standard of review; Id., 639 So.2d at 220, (2) EMTs' failure to take stretcher to victim and instead making victim walk, assisted by two adults, to stretcher was not "gross negligence”; Id., 639 So.2d at 222, and (3) that EMTs spent 20 minutes at victim's house before leaving with victim rather than 10 to 12 minutes as suggested by expert was not "gross negligence.” Id., 639 So.2d at 223.

      . In Brown, the plaintiff suffered an orbital fracture which is a break in one of the bones of the eye socket.

      . Ms. Brown did not appeal the summary judgment granted in favor of Zulu or its insurer. She did, however, appeal the summary judgment in favor of Mr. Lee, because she asserts that her injuries were the result of his gross negligence.

      . Particularly, this was the conclusion as to whether the Zulu parade crewmember’s act of throwing the coconut was negligent.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. William M. PATTERSON.
    No. 10-KA-415.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Paul D. Conniek, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Megan L. Gorman, George C. Wallace, Jr., Trial Counsels, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, William M. Patterson.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

[2On October 20, 2005, the Jefferson Parish Grand Jury indicted defendant, William M. Patterson, for second degree murder, in violation of La. R.S. 14:30.1. Defendant pled not guilty at his arraignment. Thereafter, defendant filed a Motion to Suppress Statement, which was denied after a hearing on March 23, 2007. Defendant proceeded to trial on November 17, 2009, and a unanimous twelve-person jury found him guilty as charged on the following day.

On December 2, 2009, defendant filed a Motion for a New Trial, which was submitted without argument and denied by the trial court that day. Thereafter, defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant orally noted that he was going to file a motion to reconsider sentence and a notice of appeal. That same day, defendant filed a written motion to reconsider sentence and a written notice of appeal. On the following day, defendant’s motion to reconsider sentence was denied, and his appeal was granted.

J¿FACTS

At approximately 1:00 a.m. on July 19, 2005, the Jefferson Parish Sheriffs Office received a 9-1-1 call about a shooting at an apartment complex on Whitney Avenue in Jefferson Parish. Detective David Craig Kaehtik and Sergeant Eddie Klein of the Jefferson Parish Sheriffs Office, among others, responded to the call.

Upon their arrival, Detective Kaehtik and Sergeant Klien testified that they observed a young black man, lying motionless, on the ground next to a white car. The victim was identified by bystanders as Tyrone Kayron Temple. The victim, who had sustained multiple gunshot wounds, died at the scene. The officers observed that the white car, with its passenger door ajar, had struck a fence between two of the apartment buildings in the complex.

At the crime scene, Detective Kachtik spoke with Precious Henderson, who had called 9-1-1 after hearing gunshots. She told Detective Kachtik that the driver of the car was shot then his car struck the fence. She also admitted that she turned off the car’s engine and removed the keys from the vehicle.

Crime scene technicians recovered a fragment of a projectile from the vehicle and four spent .380-caliber shell casings from the scene, including one found underneath the body. Sergeant Klein also found blood on the driver’s side of the vehicle, which continued toward the passenger side. Additionally, the officers noted that the driver’s side window of the vehicle was shattered with most of the glass outside of the vehicle. Sergeant Klein testified that the scene suggested that a projectile was shot from the passenger’s side of the vehicle toward the driver’s side.

|4Pr. Susan M. Garcia, an expert in the field of Forensic Pathology, performed an autopsy on Tyrone Kayron Temple on July 19, 2005. Dr. Garcia stated that the autopsy revealed that the victim sustained five gunshot wounds: four to his head and one to his right hand. The victim also sustained graze wounds on his left forearm and his right thumb. Thus, Dr. Garcia concluded that the victim was shot six or seven times.

Further, Dr. Garcia opined that the victim’s hand wound, the graze wound to the thumb, and the graze wound to the left forearm were sustained when the victim was in a horizontal, instead of an upright, position. Dr. Garcia testified that the wounds to the victim’s hands could be considered defensive wounds.

Dr. Garcia testified that the wound on the right side of the victim’s head between his eye and ear was potentially lethal because the victim would have breathed in large amounts of blood from this wound. She believed that this wound was sustained when the victim was in a seated position.

Dr. Garcia testified that the victim sustained a second lethal wound to the right side of his head because the projectile went down into his chest cavity and injured his left lung. She believed that this wound was sustained when the victim was bent over in a “highly angled position.” None of the other wounds were immediately lethal.

Sergeant Rodney Naumann of the Jefferson Parish Sheriffs Office testified that he received projectiles from Dr. Garcia, including one from the victim’s left chest cavity. Sergeant Naumann testified that he also received a blood-stained, white t-shirt, which had been removed by the coroner from the victim’s body. He testified that, before the autopsy began, he performed a gunshot residue test on the victim’s hands. The results were presumptively negative, which indicates that it | Swas unlikely that the victim’s hands were in close proximity to a firearm being discharged.

Lieutenant Kelly Carrigan of the Jefferson Parish Sheriffs Office crime lab assisted in processing the crime scene in question. Lieutenant Carrigan testified that no usable fingerprints were found on the casings recovered from the scene.

Ms. Louise Walzer, an expert in the field of Firearms Analysis, testified that she examined ballistic evidence recovered in this case. She testified that the fired cartridge cases and the copper-jacketed projectile, which had been removed from the victim’s left chest cavity, were consistent with a .38-caliber class.

She concluded that, based upon microscopic analysis, all of the recovered casings were fired from the same weapon. Furthermore, her analysis indicated that the recovered projectiles were fired by the same weapon. Ms. Waltzer admitted, however, that, without a weapon to use for comparison, she could not verify that the same weapon fired both the projectiles and the casings.

On the day following the shooting, defendant turned himself in to officers at the Detective Bureau of the Jefferson Parish Sheriffs Office. At 5:30 p.m. on July 20, 2005, minutes after defendant arrived, defendant, with the help of Detective Ro-drigue, executed a “Rights of Arrestee” form. The form was signed by the defendant and Detective Rodrigue, as well as a witness, Sergeant Dax Russo. Detective Rodrigue read defendant his rights, defendant waived those rights, and, at 5:46 p.m., defendant gave a taped statement. That taped statement was played for the jury.

In defendant’s statement, he said that his mother brought him to the Investigations Bureau. He stated that he walked up to the front desk and told the |6officer that he was wanted for murder. Defendant admitted to killing “Kayron” Temple. He explained that he had known Kayron since they both had attended George Cox School. Defendant also admitted that he and Kayron did not like each other.

Also in his statement, defendant explained that he had animosity toward Kay-ron because, on July 11, 2005, Kayron had robbed the defendant at gunpoint. Defendant said that Kayron put a gun to his head, took his money, his designer jeans, and his tennis shoes, and ran off. He explained that he did not report the robbery to the police because he did not want to look like a “punk” or a “rat.” He also was concerned about retaliation from Kay-ron and his friends.

Defendant further admitted that, after he was robbed on July 11, he purchased a loaded .380 automatic handgun for protection. He said he had the gun on the night of the shooting because he was “hustling,” which he defined as selling drugs. He said he did not expect to see Kayron that night. However, at about 12:50 a.m., defendant saw Kayron drive into the parking area of the apartment complex by “the cut.” That night, Kayron was driving a white car with black-tinted windows.

In his statement, defendant reported that, after Kayron pulled into the parking area, he did not get out of his car. Defendant, in an attempt to “start something” and “make [Kayron] tell me something crazy to make me mad,” contemptuously told Kayron to run an errand for defendant. Although defendant stated that Kayron reportedly declined his request, saying “[h]e don’t ride with no p* * *y ass n* * * * *s in his car,” defendant stated that Kayron left to purchase a cigar for defendant’s associate.

1 ^Defendant stated that, after Kayron left, he went to get his gun, which was hidden in the “lil board on the side the house.” Defendant also told his associates to walk away because he thought that he was going to argue with Kayron when he returned. Defendant reported that Kay-ron returned with the cigar but did not get out of the car.

Defendant stated that his associate took the cigar from Kayron through the vehicle’s passenger door. Immediately thereafter, defendant stepped up to the open passenger-side door and shot Kayron five or six times. Although defendant knew that the shots he had fired had struck Kayron, he did not look at Kayron’s face so he did not know whether Kayron was bleeding.

Defendant reported that, after Kayron was injured, his car began to move forward and eventually collided with a nearby fence. After the shooting, defendant and his associates ran off. Defendant said that he ran to the end of Whitney Avenue then walked to the Algiers’ levee near the ferry. There, he hurled the gun as far as he could into the Mississippi River. He also threw away the clothes that he was wearing at the time of the shooting.

Defendant also testified at trial. He said that he was 17 years old when he was arrested. At that time, he was a Special Education student in the 10th Grade at West Jefferson High School. He testified that he knew the victim from when they went to elementary school at George Cox.

At trial, defendant explained that Kay-ron robbed him on July 11, 2005. He did not report that crime because he “ain’t want to be labeled as a rat, and when people be telling on people they be getting kilt.” He also stated that he did not tell the police about the robbery because they would have arrested the victim, who would have retaliated by trying to kill him or his family. Defendant testified that he did not have a gun on July 11, 2005.

|8When questioned about the evening that he shot Kayron, defendant testified that he was “sitting on the air condition” and “hustling.” Defendant testified that Kayron walked through “the cut” of the apartments and then came back out with a gun in his hand. Defendant reported that Kayron poked him in the head with a .40-caliber gun and ordered him to “Give it up.” Defendant said that he recognized it as the same gun that Kayron had used when he had previously robbed defendant.

Defendant testified that he again gave up his property and cash to Kayron. Then, while Kayron was walking back to his car, defendant retrieved his gun, ran to the passenger side of the vehicle and shot Kayron. He said that he did not mean to kill the victim, but he “just kind of lost it. After I squeezed the first time, I just kind of lost it and kept squeezing. I ain’t know.” He agreed that the victim was not pointing a gun at him at the time. Defendant also agreed that he was mad and wanted his money back, so he shot him in the head.

Defendant testified that he was afraid of the victim. Yet, he did not tell the police that he had been scared of Kayron because he did not want to seem like a “punk.” He admitted that he was young and made “stupid decisions.”

Defendant also stated that he was mad when he gave the statement to the police. Defendant admitted that he lied when he said that two of his friends were with him on the night that Kayron was shot. Defendant said he was given details of the incident and was interviewed prior to when the tape was turned on.

After hearing all of the testimony and evidence, the jury unanimously found that defendant was guilty of second degree murder for the homicide of Tyrone Kayron Temple. Defendant appeals that verdict.

In his first assignment of error, defendant argues that the evidence was insufficient to support the verdict as the evidence did not prove beyond a reasonable doubt that the homicide was not done in self-defense. Defendant does [flnot contest the State’s evidence that he fired the gun at the victim and caused his death. Rather, he argues that the unrebutted evidence presented at trial suggests that the homicide was justifiable because it was done in self-defense. Defendant claims he had a reasonable apprehension for losing his life or suffering great bodily harm when the victim had robbed him at gun point a week earlier and then again on the night of the shooting. Defendant concludes that no rational fact-finder could have concluded, on the evidence presented at trial, that the State proved beyond a reasonable doubt that the killing was not justified as an act of self-defense.

The State responds that the jury reasonably could have concluded that defendant could not have believed he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary under the circumstances to save himself. The State explains that, even if the victim was initially the aggressor, the jury could have believed at some point defendant became the aggressor when he followed him to his car instead of allowing him to escape. The State also notes that one of the wounds entered the back of the victim’s head.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted). Both the direct and circumstantial evidence must be sufficient to support ]inthe conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. See La. R.S. 14:30.1; State v. Lewis, 05-170, p. 8 (La. App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-0757 (La.12/15/06), 944 So.2d 1277. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Draughn, 05-1825, p. 8 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926.

In the instant case, the State proceeded under the first theory of second degree murder. As such, to prove second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. State v. Pagan, 04-1478, p. 10 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, 441, writ denied, 05-2003 (La.2/17/06), 924 So.2d 1013.

Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the conduct of the defendant.

“The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with spe-cifíc luintent to kill.” State v. Gonzalez, 07-449, p. 8 (La.App. 5 Cir. 12/27/07), 975 So.2d at 8, ivrit denied, 08-0228 (La.9/19/08), 992 So.2d 949. Moreover, specific intent to kill can be inferred from the intentional use of a deadly weapon, such as a knife or a gun, State v. Knight, 09-359, p. 14 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 317, from the circumstances and the defendant’s actions, and the extent and severity of the victim’s injuries. State v. Graves, 99-113, p. 3 (La.App. 5 Cir. 8/31/99), 740 So.2d 814, 816, unit denied, 99-3013 (La.3/31/00), 759 So.2d 68. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. Gonzalez, 07-449 at 9, 975 So.2d at pp. 3, 8.

We find that, given the evidence produced at trial, the jury could have reasonably inferred that defendant had specific intent to kill or inflict great bodily harm. The State presented evidence that defendant shot the victim multiple times. Further, Dr. Garcia testified that the victim sustained five gunshot wounds, with three wounds to his head. She believed that the perpetrator fired at least six shots, and, possibly, even seven. Thus, the State did present sufficient evidence to prove the elements of second degree murder.

Notably, defendant does not deny that he shot the victim, but insists that he acted in self-defense. His claim is actually that the prosecution failed to prove, beyond a reasonable doubt, that the homicide was not in self-defense.

When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982); State v. Theriot, 07 pp. 12-13 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, unit denied, 07-1598 (La.2/1/08), 976 So.2d 715. The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18.

According to La. R.S. 14:20, a homicide is justifiable “[w]hen 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” or “[w]hen 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.”

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith. State v. Mills, 04-489, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 953, 959, writ denied, 05-1470 (La.1/13/06), 920 So.2d 235 (citing La. R.S. 14:21). In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. Theriot, 07-71 at 13, 963 So.2d at 1020.

11sThe determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. Theriot, 07-71 at 12, 963 So.2d at 1020. The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Theriot, 07-71 at 13, 963 So.2d at 1020.

The trier-of-fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651. It is not the function of the appellate court to assess the credibility determinations of the trier of fact or to reweigh the evidence. Id.

Here, the State, beyond a reasonable doubt, adequately negated the defense of justification. At trial, defendant testified that, after the victim arm-robbed him of his money and drugs, the victim walked toward his vehicle. Defendant admitted that, after the victim walked away, he retrieved his gun, ran toward the victim’s car, opened the passenger-side door, and shot the victim. Although defendant did state that he was afraid of the victim, he also stated that he shot the victim in the head because he was mad and wanted his money back.

Further, the victim sustained wounds to his hands that Dr. Garcia testified could be considered defensive wounds. Defendant admitted that the victim was not pointing a gun at him at the time of the shooting. Also, no gun was found at the scene on the victim.

“The law does not permit an individual to track down his enemy, shoot him with a pistol, and then claim justification for the homicide because of prior 114threats.” State v. Arabie, 496 So.2d 554, 558 (La.App. 1 Cir.1986), writ denied, 502 So.2d 565 (La.1987).

Furthermore, the State presented evidence that victim was shot in the back of his head, which indicates that the defendant became the aggressor and his claim of self-defense was not supported by the facts. See State v. Favorite, 03-425, p. 9 (La.App. 5 Cir. 11/25/03), 862 So.2d 208, 214, writ denied, 03-3529 (La.4/23/04), 870 So.2d 298. Further, defendant’s actions after the incident, including failure to report the shooting, disposal of the weapon, and flight from the scene, were inconsistent with a theory of justifiable homicide. See State v. Wallace, 612 So.2d 183, 191 (La.App. 1 Cir.1992), writ denied, 614 So.2d 1253 (La.1993). A defendant’s flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Cazenave, 00-183, p. 13 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151.

Accordingly, we find that any rational trier of fact could have reasonably concluded that defendant did not support his claim that he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary under the circumstances to save himself. Accordingly, we find no merit in defendant’s argument.

In his second assignment of error, defendant argues that the evidence was insufficient to support a verdict of second degree murder but rather supports a verdict of manslaughter. Defendant argues that, in the event that this Court rejects his claim of self-defense, the evidence established that the shooting was done in “sudden passion” and “heat of blood.” He claims that the shooting was provoked by the victim’s violent and lawless behavior and that having been robbed at 11Bgunpoint twice by the victim was sufficient provocation to have triggered mitigatory “heat of passion.”

The State responds that, in viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found the requisite specific intent to kill or inflict great bodily harm, and, also, that the mitigatory factors of manslaughter had not been established by a preponderance. The State concludes that the jury heard the defense’s attempt to persuade it to return a manslaughter conviction by means of its closing argument, but rejected the manslaughter verdict, finding the provocation insufficient to deprive an average person of self-control and cool reflection.

Manslaughter is a homicide, which would either be first or second-degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his cool reflection and self-control. State v. Dressner, 08-1366 (La.7/6/10), 45 So.3d 127 (citing La. R.S. 14:31(A)(1)). Additionally, the defense has the burden of proof of mitigating circumstances by a preponderance of the evidence. Dressner, supra; State v. Lawson, 08-123, p. 8 (LaApp. 5 Cir. 11/12/08), 1 So.3d 516, 523. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. Lawson, supra (citing La. R.S. 14:31(A)(1)).

Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Instead, they are mitigatory factors that may reduce the grade of the offense. Lawson, supra.

Whether sufficient provocation existed for the reduction of the offense to manslaughter is a question to be determined by the jury under the standard of the 11 (¡average or ordinary person, one with ordinary self-control. Lawson, supra. It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and a reviewing court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Christian, 07-684, p. 5 (La.App. 5 Cir. 3/25/08), 984 So.2d 132, 135. The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. Lawson, supra (citing State v. Lombard, 486 So.2d 106, 111 (La.1986)).

Our review of the instant record does not reveal that the defendant’s homicidal actions were the result of immediate provocation sufficient to deprive an average person of his self-control and cool reflection. First, the defense failed to demonstrate a sufficient level of provocation stemming from the victim’s first armed robbery of the defendant, which was a week before the shooting. See State v. Gant, 06-282, p. 10 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1112, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599 (one week sufficient time for blood to cool); State v. Crochet, 96-1666, p. 11 (La.App. 1 Cir. 5/9/97), 693 So.2d 1300, 1307-08, unit denied, 97-1547 (La.11/21/97), 703 So.2d 1305 (two days sufficient time for blood to cool). Under these circumstances, defendant failed to carry his burden of proof of “sudden passion” or “heat of blood” based on the preceding week’s robbery.

Next, although he did not mention it in his statement, defendant testified that the victim robbed him at gunpoint just before the incident in question. However, the evidence presented still does not support the claim that defendant shot the victim in “sudden passion” or “heat of blood.” Defendant himself testified that the 117victim was leaving when defendant ran to retrieve his gun. He admits that he followed the victim, until he entered his vehicle then shot him.

In Arabie, supra, the defendant admitted that he pursued his armed robbers with the express goal of regaining possession of the stolen marijuana and stolen money. The Arabie court provided the following:

There exists little doubt that defendant was frustrated by his apparent failure to avenge the wrong done to him. Defendant resorted to self-help in an illegal enterprise dependent upon self-help for enforcement of property rights.
Considering all surrounding circumstances and conditions, a rational trier of fact could have concluded that, despite some evidence of provocation, defendant acted with deliberation and reflection and not from heat of passion at the time of the actual homicide. Our law may extend some limited indulgence to passion justly excited, but it does not indulge revenge.

Arabie, 496 So.2d at 558 (emphasis added). Considering the facts and law, defendant again failed to carry his burden of proof of “sudden passion” or “heat of blood” based on the robbery immediately preceding the incident.

Additionally, the jury could have chosen not to believe defendant that the victim robbed him just prior to the shooting, especially in light of the fact that the story given by defendant at trial was different than the version of his story given in his statement the day following the shooting. Such a credibility determination should not be reweighed on appeal. Singleton, OS-622 at 7, 922 So.2d at 651.

In this case, the jury did not find that defendant established the mitigatory factors of “sudden passion” and “heat of blood” by a preponderance of the evidence. We conclude that finding was reasonable based on the evidence presented at trial.

Considering the circumstances of this case, defendant’s actions, and the extent and severity of the victim’s injuries, we find that the evidence was constitutionally sufficient to support the jury’s finding that defendant had the 11sspecific intent to kill or inflict great bodily harm on the victim. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient to support the conviction and that the mitigatory factors of manslaughter were not established. As such, we find no merit in this argument.

ERROR PATENT DISCUSSION

We have reviewed this record for errors patent, according to La.C.Cr.P. art. 920. Our review reveals that the trial court failed to observe the 24-hour delay between denying defendant’s motion for new trial and imposing defendant’s sentence as required by La.C.Cr.P. art. 873.

Here, the defendant did not expressly waive the mandatory, statutory delay between the trial judge’s ruling on his motion for new trial and his sentencing. As a rule, when a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the case remanded for resentencing. State v. Sims, 02-1244, p. 10 (La.App. 5 Cir. 4/29/03), 845 So.2d 1116, 1122, writ denied, 03-2189 (La.8/20/04), 882 So.2d 570.

However, absent a showing of prejudice from the failure to afford the statutory delay, reversal of a prematurely-imposed sentence is not required. State v. Seals, 95-0305, p. 17 (La.11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). In Seals, supra, the Louisiana Supreme Court explained that when there is a mandatory sentence to be imposed, the defendant cannot possibly be prejudiced by the trial court’s failure to observe the delay.

| ,qIn State v. Williams, 09-48, p. 19 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 369, mdt denied, 09-2565 (La.5/7/10), 34 So.3d 860, this Court found that a defendant was not prejudiced by the failure to observe the delay because the trial judge was required to impose a mandatory sentence of life imprisonment at hard labor for the defendant’s conviction of aggravated rape. Thus, this Court determined that the failure to delay sentencing could be deemed harmless.

In the present case, defendant received a mandatory life sentence for his second degree murder conviction. According to Seals and Williams, the defendant has not suffered prejudice from the trial court’s failure to observe the statutory delay and, thus, no remedial action is warranted.

Further, the record reveals a discrepancy between the defendant’s commitment and the transcript regarding the notification of the prescriptive period for filing for post-conviction relief' The commitment simply provides that defendant had “2 years from the date the case becomes final to file for Post Conviction Relief.” However, the transcript reflects a proper advisal pursuant to La.C.Cr.P. art. 930.8. Generally, where there is an inconsistency between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, this matter is remanded with instructions to the Clerk of Court for the 24th Judicial District to amend the commitment to accurately reflect the trial court’s proper advisal. In all other respects, defendant’s conviction and sentence is affirmed.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The jury heard the 9-1-1 call received in connection with this shooting.

      . The registered owner of the white Oldsmobile Alero was the victim’s sister, Lakesha Miller, who testified that her brother was borrowing her vehicle at the time of the shooting.

      . The crime scene technician found Precious Henderson’s fingerprints inside of the vehicle.

      . The results of DNA samples from inside of the vehicle confirmed that the blood belonged to the victim.

      . The record states that the victim's middle name was “Kayron.”

      . We note that the jury was not instructed on the defense of justification and the defense did not object to the lack of instruction. Thus, we could find that the defendant’s failure to object waived his right to appellate review. La.C.Cr.P. art. 841. An appellate court need not consider a claim of self-defense raised for the first time on appeal. State v. Jackson, 06-565, pp. 5-7 (La.App. 5 Cir. 12/27/06), 948 So.2d 269, 273-74. However, the defendant did testify at trial that he was afraid of the victim who had robbed him on two occasions, including on the night of the shooting. Further, defense counsel asked the jury to consider if defendant had been provoked, threatened, or scared. In this case, in an abundance of caution, we will review the merits of defendant's allegation.

      . Of note, defendant testified that just prior to the homicide he was selling drugs. La. R.S. 14:20(A)(4)(b) provides that "[t]he 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.” Again, in an abundance of caution, we will address defendant's claim.

      . The coroner’s office discovered cash in the victim's pocket. Sergeant Klein believed the amount was $614.00.

      . According to the transcript, the trial judge asked, "Are we ready for sentencing?” The State then mentioned that the victim's sister was present to make a victim impact statement. After the statement was made, the trial judge asked, "Does the defense have anything they wish to say?” Defense counsel responded, "No, Your Honor." Thereafter, defendant was sentenced to life imprisonment.