author: JOAN BERNARD ARMSTRONG,

text:
    STATE of Louisiana v. Stanley M. LeBLANC.
    No. 2010-KA-1484.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Stanley LeBlanc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG,

Chief Judge.

J¿STATEMENT OF THE CASE

The defendant, Stanley LeBlanc, was charged by bill of information on October 10, 2007, with one count of theft of copper telephone cable, valued in the amount of five hundred dollars or more, a violation of La. R.S. 14:67(B)(1). The defendant pleaded not guilty at his November 26, 2007 arraignment. The trial court denied the defendant’s motions to suppress the evidence and statement on December 14, 2007, At a Daubert hearing on July 2, 2008, the trial court found valid the method used to value the copper cable. On October 1, 2008, the trial court denied the defendant’s motion to quash and a motion to bar the State’s use of certain photographs at trial. This Court denied the defendant’s writ application as to the part of the ruling concerning the photographs on November 7, 2008, and as to the motion to quash on April 20, 2009. On February 10, 2009, after a lunacy ^hearing, the trial court found the defendant incompetent. The next lunacy hearing was on July 7, 2009, when the trial court again found the defendant not competent to proceed. The defendant likewise was found incompetent at an October 27, 2009 lunacy hearing. The defendant was declared competent to proceed on December 3, 2009.

On December 14, 2009, the defendant filed a motion alleging a conflict of interest/ineffective assistance of counsel, a motion to suppress the evidence, and a writ of habeas corpus, all of which were denied; the defendant also filed that same date a motion for discovery of evidence, which the trial court granted. The defendant sought review of the denials of his motions and, on January 4, 2010, this Court denied the writ. On January 5, 2010, the defendant filed a writ application with this court regarding his complaints of ineffective assistance of counsel, which this court denied on January 11, 2010. On January 6, 2010, the day of trial, the trial court denied the defendant’s oral motion to suppress all evidence allegedly seized illegally and the defendant’s motion for written/verbal statement(s) and physical evidence. The defendant elected a trial by a six-person jury and was found guilty as charged.

The defendant filed a writ application with this court on January 27, 2010, seeking discovery and inspection of virtually the entire record, including some items the docket master did not show were admitted. This Court denied the writ on |sFebruary 3. 2010. On February 18, 2010, the trial court granted in part and denied in part defendant’s request for production of documents. On March 31, 2010, defendant filed a writ application with this Court complaining that the trial court had erred in denying his motion for production of the bill of information and his medical reports from the forensic mental hospital. This Court denied that writ application.

The trial court denied the defendant’s motions for new trial and for judgment notwithstanding the verdict on April 13, 2010; defense counsel announced the defendant was ready for sentencing, and the trial court sentenced the defendant to nine years at hard labor, to run concurrently with any other sentence he was currently serving. On that same date the defendant filed a motion for appeal, which the trial court granted.

The record was lodged with this court on October 20, 2010, and was supplemented on November 4, 2010, with a copy of the Daubert hearing. The defendant filed a counseled brief on November 15, 2010, a counseled reply brief on December 2, 2010, and a pro se brief on May 10, 2011. The State filed its appellee brief on November 23, 2010.

FACTS

The defendant was charged with and convicted of the theft of copper cable valued at more than five hundred dollars, belonging to AT & T.

14 Kenneth Kararick testified that on August 1, 2007, he was employed by AT & T as a facility technician; he repaired aerial cables and buried telephone cables. That day Kararick was working on Haynes Boulevard, where AT & T contractors were taking down telephone cable that had been unserviceable since Hurricane Katrina. Kararick testified that he observed two individuals rolling cable across the street and attempting to load it onto the top and trunk of a Volvo. Kararick exited his bucket truck to write down their license plate number, and when he reentered his truck one of them approached him and directed his attention to the defendant, saying “Well, what about this guy.” Ka-rarick then observed the defendant drive past in an old U-Haul truck with its bed full of AT & T telephone cable. Kararick said he recognized terminals attached to the cable, noting that he had been working with that cable for over thirty years.

Kararick telephoned 911 and began following the defendant in his bucket truck. Kararick stopped his pursuit when defendant drove into a subdivision. Shortly thereafter, police telephoned him and directed him to a location where officers had stopped the defendant in his truck. Ka-rarick said it was the same truck he had seen and followed, and that the defendant was the same individual he had seen driving it. And someone he recalled as a Mr. Boutan (the defendant’s co-defendant) was also in the truck. The cable was clearly visible in the rear of the truck.

Kararick identified a photograph of the telephone cable which he and another AT & T employee had removed from the defendant’s truck and placed in the back of his supervisor’s truck. Kararick recalled that he had called his supervisor, Chad Clark, when he had encountered the other two men rolling cable across the street. Kararick called Clark again to update him on where he was and [¿what the situation was with regard to defendant; Clark came to the scene within five or ten minutes. Clark called another employee to assist Kararick in loading the cable from back of the defendant’s truck into the back of Clark’s truck, which task Kararick estimated took forty minutes.

When questioned on cross examination by the defendant (the defendant acted as his own counsel) about how he could have seen the cable in the defendant’s truck, Kararick testified that he was in his bucket truck when he observed the defendant drive by. Kararick was asked whether he had seen the defendant remove the wire from the pole, and he replied in the negative.

New Orleans Police Officer Jason Cross confirmed that he responded to a theft call on August 1, 2007. The description was two unknown males in a U-Haul truck with copper wire in the back. Another officer stopped the truck. Officer Cross identified the defendant as being one of the men in the truck. Officer Cross informed the defendant and his accomplice, Don Boutan, of their Miranda rights, and informed them that they were being questioned about the copper wire in the back of their U-Haul truck. Officer Cross asked the defendant about the wire. The defendant stated that a guy who worked for AT & T told him that if he helped him unload the copper wire he could have some. Officer Cross said when Kararick arrived on the scene he identified the copper wire in the back of the defendant’s truck as belonging to AT & T. Officer Cross said the wire had an AT & T symbol on it. He said a manager from AT & T also identified the wire as belonging to AT & T, and the manager stated that no one had permission to be in possession of it. Officer | (¡Cross said the wire was so voluminous that they could not put it in their police cruiser, so they returned it to AT & T.

On cross examination, Officer Cross read his police report, which stated that the “reporting person observed [defendant] removing several rows of copper telephone wire from the telephone poles located on Haynes Boulevard.” Officer Cross read the report further, stating that the reporting person, an AT & T employee, attempted to stop defendant, but defendant fled. Later in his testimony Officer Cross confirmed that the reporting person was “Mr. Eugene.” That the reference to “Mr. Eugene” was to AT & T employee Kenneth Kararick, became apparent when the defendant recalled Kararick as a witness, addressed him as “Mr. Eugene,” and Kararick responded without comment upon being addressed by that name. At another point in the police report, Officer Cross wrote that when officers spoke to Kararick, he stated that he saw defendant and Boutan picking up the copper wire and placing it in their truck, a 1998 GMC 3500. Officer Cross confirmed that in his report he first had written that Kararick had seen the defendant passing by in his truck.

Officer Cross conceded on cross examination that the photo of the wire in the back of a white pickup truck was not taken at the scene of the defendant’s arrest.

Chad Clark, Network Manager for AT & T, was employed by AT & T on August 1, 2007. On that date he had occasion to respond to an incident that occurred near Haynes Boulevard in New Orleans East. Clark saw the suspects that day, in a neighborhood called Bunker Hill; he identified the defendant in court as one of them. Clark testified that Kenneth Karar-ick called to tell him about the theft, that he had telephoned the police, and that he was following the thief. WhenJ^Clark first came into contact with the defendant the copper wiring was in the back of a U-Haul flatbed truck. Clark said the wiring belonged to AT & T. He said AT & T recycled its copper wiring. On the date of the theft he was allowed to keep the wiring. He later put it in a recycling bin at AT & T’s yard. Clark took the photos of the wiring in his company truck, and he identified those photos.

Clark testified that the cable in question was approximately six hundred feet, and that it weighed approximately three hundred fifty pounds. When the prosecutor asked Clark what the value of the cable was on August 1, 2007, Clark responded that AT & T received $3.85 a pound for it in March or April of the following year. Clark calculated that AT & T had received more than $1,300.00 for it. Clark never gave the defendant or anyone else permission to take the wire at issue.

During cross examination, Clark identified, as State Exhibit No. 2, a photo he took of the wire in question, a marking: “Superior 6, TC06.” He testified that the covering on the wire was a protective material, and that AT & T was the only company that used that protective material. He also said AT & T was the only company that hung that cable in the field in New Orleans. Clark also said the cable had a telephone symbol on it to show that it was telephone cable. He said he took the photographs on the day the cable was stolen.

Officer Cross, called as a witness by the defendant, confirmed that the truck in which the wire was photographed was not the truck the defendant was driving at the time of the arrest, and that the photo did not depict the location of the arrest. The officer said “[w]e allowed AT & T workers to take it.”

Kenneth Kararick, called as a witness by the defendant, denied telling police he had observed the defendant removing wire from telephone poles. He also |8denied having seen the defendant pick any wire off the ground and place it in the back of the U-Haul truck. Kararick confirmed on cross examination that the defendant was the person he saw driving down Hayne Boulevard with the AT & T wire.

ERRORS PATENT

A review of the record for patent errors reveals none.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In his first assignment of error, the defendant argues that the evidence is insufficient to support his conviction, specifically arguing that the evidence is insufficient to prove beyond a reasonable doubt that he took the cable. In the defendant’s second assignment of error he argues that the evidence is insufficient to support his conviction, specifically arguing that the evidence was insufficient to establish that the value of the cable was five hundred dollars or more.

This Court set forth the applicable standard of review for sufficiency of the evidence in State v. Huckabay, 2000-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be | nimpinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the -witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Huckabay, 2000-1082, p. 32, 809 So.2d at 1111, quoting State v. Ragas, 98-0011, pp. 13-14 (La.App. 4 Cir. 7/28/99), 744 So.2d 99,106-107.

La. R.S. 14:67(A) and (B)(1) stated, at the time of the August 2007 alleged theft in the instant case:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

Thus, to convict in the instant case the State had to prove beyond a reasonable doubt the following elements: (1) a misappropriation or taking of anything of value; (2) belonging to another; (8) either without the consent of the other or by means of fraudulent conduct, practices or representations; (4) with the intent to deprive the other permanently of whatever was the subject of the misappropriation or taking; and (5) where the object of the misappropriation or | staking is valued at five hundred dollars or more. State v. Nicholas, 97-1991, p. 20 (La.App. 4 Cir. 4/28/99), 735 So.2d 790, 800.

In the instant case, Kenneth Ka-rarick testified that on the day of the defendant’s arrest he was working for AT & T, and that contractors for AT & T were removing telephone cable/wire from poles across the levee and on the other side of the railroad tracks that had formerly been used to provide service to camps destroyed by Hurricane Katrina. Kararick’s supervisor, Chad Clark, testified that the contractors would remove the cable from the poles, set it on the ground, and come back and roll it up on a reel and then take it back to the yard to later be recycled at a plant in Alabama. Clark said no one other than AT & T personnel had permission to take the wire.

On that day Kararick had just reported another apparent attempted theft of other nearby cable by two individuals acting in concert. Kararick got out of his truck to take down the license plate number of the vehicle those other two individuals were driving. Those two individuals obviously observed this action by Kararick, for when he reentered his truck one of them approached him and pointed to defendant, asking: “Well, what about this guy” — as if to say “why are you stopping us from taking this cable but letting him take some.” Kararick turned to see the defendant driving by in a U-Haul truck loaded with AT & T cable. Another individual was in the truck with the defendant.

Kararick reported the defendant to police and followed him until the defendant entered a neighborhood Kararick did not wish to enter. Minutes later, however, police called Kararick and directed him to a location in that neighborhood where police had stopped the defendant in the U-Haul truck with the AT & T cable in it. Kararick’s AT & T supervisor on the day in question, Chad [n Clark, called another employee to assist Kararick in loading the cable into the back of Clark’s truck, because there was so much of it. Clark testified that the cable was approximately six hundred feet in length and weighed approximately three hundred fifty pounds.

Viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the cable was on the ground that day, having been taken down by AT & T contractors working in the area for later pickup by them or AT & T personnel, and that defendant, assisted by his codefendant, Boutan, loaded some of the cable belonging to AT & T onto the U-Haul truck and drove off with it.

In the defendant’s second assignment of error he argues that the evidence was insufficient to establish that the value of the cable was five hundred dollars or more.

The only evidence as to the value of the cable came through the testimony of AT & T supervisor Chad Clark. Following Clark’s testimony that the cable was approximately six hundred feet long and weighed approximately three hundred and fifty pounds, the prosecutor asked:

Q. And based on that weight, what was the value of that cable on August 1st of 2007?
A. The value that we received was in March or April of the following year. And it was $8.85 a pound.
Q. That’s $8.85 a pound?
A. $3.85 a pound.
Q. And I’m sorry. For the Record [sic], how many pounds did you say that was?
A. 349 pounds, roughly.
|12Q. So do you know what the total would be?
A. We figured out, it was 1,300 plus dollars.

The three hundred forty-nine pound gross weight of the cable multiplied by $3.85 equals a total of $1,343.65. This was the value of the cable in either March or April 2008. However, there was no evidence introduced upon which one reasonably could have estimated the value of the cable as of August 1, 2007, the date of the theft.

The State is correct in arguing in its appellate brief that the testimony of the owner of the property taken in a theft is sufficient to establish its value for the grade of the offense. See State v. Hoskin, 605 So.2d 650, 652 (La.App. 4 Cir. 1992)(“[W]hen the degree of the crime is based on the value of the stolen property possessed, the self-serving testimony of the owner is sufficient if it is clear and uncontradicted.”).

However, in the instant case, the self-serving testimony of Chad Clark, a representative of the owner of the property, was not clear as to the value of the property on day of the theft.

In Hoskin, supra, the defendant was seen exiting the stolen Monte Carlo after it crashed into a utility pole on July 23, 1990. At trial the victim testified that his 1984 Monte Carlo was in good working condition and had no dents; he estimated the car had been worth three thousand dollars when it was stolen on July 14,1990. This Court found that evidence sufficient to establish that the value of the victim’s vehicle was at least five hundred dollars, and affirmed the defendant’s conviction and sentence for illegal possession of the stolen car.

In State v. Williams, 598 So.2d 1265 (La.App. 4 Cir.1992) this Court reversed the defendant’s conviction for illegal possession of a stolen thing valued |1sat five hundred dollars or more because the only evidence of the value of the stolen thing, a 1980 Cadillac automobile, was the owner’s testimony that she had purchased it in 1982 for $25,200.00. The owner had also testified that she had some unspecified maintenance problems with the car and had intended to trade it in. When the car was stopped as the defendant was driving it several days after it was stolen in September 1990, it had a dent on the left front side and a hole in the steering column. One of the stories the defendant told police was that he had purchased the car for twenty dollars. This Court noted that the State had failed to present any photographs, estimates, an original bill of sale or testimony to indicate the value of the car at the time it was possessed by the defendant. However, the cable stolen in the instant case would not be subject to the same loss in value due to depreciation and wear and tear similar to that experienced by an automobile over time.

The State sought writs in Williams and, in a per curiam, State v. Williams, 610 So.2d 129 (La.1992), the Louisiana Supreme Court found that, while the State’s case may have asked jurors to speculate on the range of values for the vehicle, a rational trier of fact could have determined that the vehicle had “some value,” even if no more than the twenty dollars the defendant had told police he paid for it. Williams, 610 So.2d at 130. The court affirmed this Court’s reversal of the defendant’s conviction for illegal possession of a stolen thing valued at five hundred dollars or more, but remanded the case to the trial court for entry of a judgment of conviction of illegal possession of a stolen thing with a value of less than one hundred dollars, and for resentencing.

|uIn State v. Boyd, 2008-0659 (La.App. 4 Cir. 11/12/08), 999 So.2d 40, the defendant was charged with one count of theft of an item valued at five hundred dollars or more, the same offense defendant in the instant case was charged with and convicted of. The theft occurred in July 2007. A witness testified at trial that the bicycle defendant allegedly stole originally cost approximately five hundred twenty-five dollars, being one of two bicycles with a similar value purchased by her and her husband at Christmas for their children at least two years before defendant’s November 13, 2007 trial. No evidence was introduced as to the value of the bicycle or its physical condition at the time it was stolen. The trial court found defendant guilty of theft of an item valued between three hundred and five hundred dollars. On appeal, the defendant argued that the State failed to prove the value of the bicycle at the time of the taking. This Court agreed, finding the evidence insufficient to sustain the conviction for theft of an item valued between three hundred and five hundred dollars. This Court found the evidence supported only a conviction for theft of an item valued at under three hundred dollars, and entered a judgment of guilty to that responsive verdict pursuant to La. C.Cr.P. art. 821(E). However, the cable stolen in the instant case would not be subject to the same loss in value due to depreciation and wear and tear similar to that experienced by a bicycle over time.

In State v. Moses, 2001-0909 (La.App. 4 Cir. 12/27/01), 806 So.2d 83, the owner of a stolen truck testified that he purchased his truck for $18,000 to $19,000 in 1992, five and a half years prior to the day the defendant was found in possession of it. The State presented no evidence as to its condition on that date, but it offered into evidence photographs of the truck taken after it had been recovered. This Court reviewed the photographs and determined that the truck’s 11ficondition was such that the jury could have found that the truck was worth at least five hundred dollars. In the instant case, as distinguished from Moses, supra, pictures of the stolen property would be of little use in establishing its value.

In State v. Riley, 98-1323 (La.App. 4 Cir. 8/4/99), 744 So.2d 664, the victim testified that he had purchased his 1987 Oldsmobile for $3,000 in 1996, and that the vehicle was in very good condition and had no dents and a new front bumper when it was stolen on the night of September 5, 1997. This Court found that evidence sufficient to establish that the vehicle was valued at over five hundred dollars, rejecting the defendant’s argument that the owner’s testimony was insufficient to establish the value of the vehicle because it was ten years old when purchased. Defendant’s conviction and sentence for possession of stolen property valued at over five hundred dollars were affirmed.

In State v. Armstead, 572 So.2d 762 (La.App. 4 Cir.1990), the defendant was convicted of illegal possession of stolen property valued between one hundred and five hundred dollars — four tires and wheel rims that had been removed from a stolen vehicle. On appeal, the defendant claimed that the evidence had been insufficient to establish that the value of the property was over one hundred dollars. However, the victim testified that he purchased the four tires for approximately two hundred and eighty dollars eighteen months before his car was stolen, and photographs of the tires and rims had been introduced into evidence. Thus, this Court held that any rational trier of fact could have concluded that the value of the stolen property was one hundred dollars or more.

In State v. Collins, 588 So.2d 766 (La. App. 4 Cir.1991), the owner of the stolen vehicle testified that it was in excellent condition at the time it was stolen and estimated its value at approximately $4,000. This testimony — presumably as |1fito the “excellent condition” of the vehicle — was “corroborated” by the police officer who had apprehended the defendant driving the vehicle. The defendant offered no evidence to contradict the owner’s estimation of the car’s value. This Court found the evidence sufficient to sustain the defendant’s conviction for illegal possession of a stolen thing valued at five hundred dollars or more.

In the instant case, there was no testimony as to the value of the cable at the time it was stolen by defendant, only its value seven to eight months after the theft. This situation is the opposite of that ordinarily encountered with valuation matters in theft and illegal possession of stolen property cases. In the ordinary case, as illustrated by most of the cases cited here-inabove, the issue is whether the original purchase price was sufficient circumstantial evidence, either alone or in combination with other evidence, from which a rational trier of fact could find beyond a reasonable doubt the value at the time of the theft/illegal possession by the respective defendant.

In the instant case, the jury was called upon to value telephone cable as of the day of the theft based on a per pound salvage price obtained for the cable seven to eight months after the theft. Further, unlike the situation presented by all of the cases discussed above, in the instant case depreciation in value because of age and wear and tear was not a factor in valuation as of the date of the theft/illegal possession.

It cannot reasonably be argued that the per pound price of salvaged telephone cable, or that of its most valuable component, copper, a commodity with a regularly fluctuating price, were remotely within the realm of common |17knowledge possessed by an average juror. It may have been within the realm of general knowledge possessed by an average Orleans Parish juror at the time of defendant’s trial that the price of copper generally had been increasing in recent years and that thefts of various copper products in the greater New Orleans metropolitan area in the aftermath of Hurricane Katrina were rampant. However, without some other reference point for the average juror, it was purely speculative of the jury to conclude that the value of the cable at the time of the theft was five hundred dollars or more based simply on the fact that its value seven to eight months after the theft was $1,300.00. However, nothing in this opinion should be construed as a suggestion that a valuation of a stolen property as of a date different from that of the date of the theft is per se irrelevant to establishing value under La. R.S. 14:67. It all depends on the nature of the property.

Moreover, that one of the only things possibly within the common knowledge of an average juror as to the value of the telephone cable was that the price of its primary component, copper, regularly fluctuated and generally had been rising, weighs against the jury being able to infer the value of the cable on the date of the theft based on the value of the cable seven to eight months after the theft.

That the value was placed on the cable “only” seven to eight months after the theft was immaterial under the circumstances of the instant case insofar as determining beyond a reasonable doubt its value on the date of the theft. Simply put, accepting that the value of the cable was $1,300.00 in March or April 2008, no rational trier of fact could have inferred beyond a reasonable doubt that the value was five hundred dollars or more on August 1, 2007, the day of the theft. There was no rational basis for such an inference.

| ^Considering the results in Williams and Boyd and the nature of the stolen property in the instant case, viewing all the evidence in a light most favorable to the prosecution, we cannot say that the State established beyond a reasonable doubt that the value of the AT & T cable taken by the defendant and/or the copper wire inside of it was five hundred dollars or more on the day of the theft.

Nevertheless, it cannot be disputed that the AT & T cable had “some value,” as the Louisiana Supreme Court found the automobile did in Williams, supra. La. R.S. 14:67 defines theft, in pertinent part, as the “taking of anything of value ...,” and La. R.S. 14:2(2) states that “[ajnything of value must be given the broadest possible construction, including any conceivable thing of the slightest value,.... ” (Emphasis added).

Therefore, any rational trier of fact could have found beyond a reasonable doubt that the cable had “less than a value of three hundred dollars,” as per La. R.S. 14:67(B)(3) in effect at the time of the defendant’s arrest.

Accordingly, we must reverse the defendant’s conviction for theft where the taking amounts to a value of five hundred dollars, and remand the case to the trial court for entry of a judgment of guilty of theft where the taking amounts to less than a value of three hundred dollars and for resentencing.

\ ^ASSIGNMENT OF ERROR NO. 3

PRO SE ASSIGNMENT OF ERROR NO. 4

In his third counseled assignment of error, and his fourth pro se assignment of error, the defendant argues that the State elicited false testimony at trial from AT & T supervisor Chad Clark concerning the value of cable allegedly stolen by the defendant, and that the State failed to correct that false testimony. This argument by the defendant is based on testimony given by an AT & T employee, Karl Peterson, who valued the cable at the July 2, 2008 pretrial Daubert hearing, which valuation was somewhat different that the valuation later given at trial by AT & T supervisor Chad Clark. Peterson did not testify at trial.

The defendant is arguing an issue under Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), which held that where a prosecutor allows a State witness to give false testimony without correction, a reviewing court must reverse the conviction if the witness’s testimony reasonably could have affected the jury’s verdict, even if the testimony goes only to the credibility of the witness. However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the State knew they were false; and (3) the statements were material. State v. Phillips, 2010-0582, p. 5 (La.App. 4 Cir. 2/17/11), 61 So.3d 130, 136, citing United States v. O’Keefe, 128 F.3d 885, 893 (5 Cir.1997).

AT & T valuation expert Karl Peterson testified at the Daubert hearing that the average value of the copper in the wire stolen by the defendant, for the month of April 2008, would have been roughly $720.00 on the low end, and $878.00 on the high end. Both of these amounts are considerably less than the $1,300.00 plus value placed on the cable by AT & T supervisor Chad Clark at trial. Peterson |20testified at the Daubert hearing that AT & T also sells the plastic sheathing and some iron from the cable, but that he was concerned primarily with the copper.

Peterson, who valued copper many times a day for AT & T as part of his regular employment duties with the company, testified in great detail at the Daubert hearing about the process of scrapping/valuing the telephone cable. Peterson obviously was more qualified to place a value on the cable than was Chad Clark.

However, Peterson’s high and low valuations — of solely the copper in the wire— were greater than five hundred dollars. Thus, even assuming Clark’s testimony could be characterized as “actually false,” it was effectively “actually false” only to the extent that Clark’s valuation of the cable at $1,300.00 was greater than the $720.00 on the low end and $878.00 on the high end valuations by Peterson. Given that even the low end of Peterson’s valuation was greater than five hundred dollars, the difference, meaning any actual falsity, was not material.

Moreover, as we have already determined to reduce the defendant’s conviction to that of theft of less than three hundred dollars under La. R.S. 14:67(B)(3), based on a finding that that the cable had “some value” consistent with Williams, supra, Chad Clark’s testimony concerning the value of the cable is not material, and this Napue issue is moot.

PRO SE ASSIGNMENT OF ERROR NO. 1

In his first pro se assignment of error, the defendant argues that the trial court erred in admitting into evidence photographs taken by AT & T supervisor Chad Clark. The photographs were of his white pickup truck containing cable wire in the back, taken on the day of the incident; a closeup photograph of the cable and 121 identification marks on it that Clark took later; and another photograph taken later of outstretched cable approximating the length of the cable stolen by defendant on the day of the incident.

The defendant filed a motion prior to trial alleging that the photograph of Clark’s white truck was illegal and seeking to have it suppressed. The defendant also made oral objections when the State introduced the photographs. The trial denied the oral objections.

The defendant, who represented himself at trial, essentially argued at trial what he now argues on appeal—that the photographs should not have been admitted because the State never proved ownership of the white pickup truck; the photos were fabricated; they were illegally obtained; and they were false.

The photographs in question, introduced by the State, were relevant in that they had a tendency to make the existence of a fact that was of consequence to the determination of the defendant’s guilt more probable that it would have been without the evidence. See La. C.E. art. 401. Relevant evidence is generally admissible. La. C.E. art. 402.

[7] The photographs depicted the stolen cable and symbols on it identifying it as telephone cable. The photographs depicted the size/volume of the cable—generally supporting Officer Cross’s testimony that the cable would not fit into his police cruiser, for which reason he let AT & T personnel have it back. The photographs supported AT & T employee and witness Kenneth Kararick’s testimony that his supervisor, Chad Clark, got another AT & T employee to help Kararick remove the cable from the defendant’s truck and put it into Clark’s truck.

The requirement of authentication or identification as a condition precedent to admissibility of evidence is satisfied by evidence sufficient to support a finding laathat the matter in question is what its proponent claims it to be. La. C.E. art. 901. AT & T supervisor Chad Clark took the photographs, and he testified that they depicted exactly what they depicted. The State did not represent the photographs to depict anything other than what they depicted. The photographs were relevant and properly authenticated. Therefore, they were admissible.

PRO SE ASSIGNMENT OF ERROR NO. 2

In his second pro se assignment of error, the defendant argues that the trial court erred when it allowed his then attorney, Robert Jenkins, to deny him proper assistance of counsel and allowed a conflict of interest to go uncorrected. Defendant was represented by counsel other than Robert Jenkins from at least December 14, 2007 to October 1, 2008. Robert Jenkins was appointed to represent the defendant on October 3, 2008. He represented the defendant when the defendant was first declared not competent to proceed on February 10, 2009, and represented him through two more determinations of continued incompetency, until the defendant was declared competent to proceed on December 3, 2009.

On December 14, 2009, the defendant filed a motion alleging ineffective assistance of counsel and a conflict of interest as to Robert Jenkins, which the trial court denied, finding that Jenkins had not been ineffective. This court denied the defendant’s writ application seeking relief from that ruling, noting that the defendant could raise the ineffective assistance of counsel claim on application for post conviction relief. See fn. 4.

Generally, the issue of ineffective assistance of counsel is more properly addressed in an application for post-conviction relief filed in the trial court, where the court can conduct a full evidentiary hearing. State v. Desilva, 2009-0116, p. 5 (La.App. 4 Cir. 7/22/09), 16 So.3d 1186, 1188-1189, writ denied, 2009-2393 (La. 11/12/10), 49 So.3d 879. However, where the record on appeal discloses sufficient evidence upon which to make a determination of counsel’s effectiveness, such decision may be made on appeal in the interest of judicial economy. State v. Stallworth, 2008-1389, p. 6 (La.App. 4 Cir. 4/29/09), 11 So.3d 541, 545, citing State v. Seiss, 428 So.2d 444, 448 (La.1983).

Based on the defendant’s argument on appeal and his motion alleging ineffective assistance of counsel filed in the trial court in December 2009, the defendant appears to allege that Robert Jenkins failed to investigate his case or consult sufficiently with the defendant, and that Robert Jenkins “attacked” him by having him declared incompetent to proceed.

The record on appeal is inadequate to address this claim of ineffective assistance of counsel. The defendant can raise it, if he chooses, in the trial court in an application for post-conviction relief.

As for the alleged conflict of interest, it appears that what the defendant refers to as a conflict of interest was his disagreement with one more of Mr. Jenkins defense strategies. The defendant offers no authority for the proposition that such disagreement equates to a conflict of interest.

PRO SE ASSIGNMENT OF ERROR NO. 3

In his third pro se assignment of error, the defendant argues that the trial court erred by forcing him to go to trial with an attorney who “was inhibited by conflicting loyalties,” violating his right to effective assistance of counsel.

The January 6, 2010 trial transcript reflects that prior to the start of trial the court stated that it was going to appoint Robert Jenkins to assist the defendant in | ^defending himself. The defendant insisted on representing himself at trial. When the defendant strongly objected to the appointment of Mr. Jenkins, the trial court said it would not appoint him. The trial court then stated that it would appoint another attorney, Mr. Hortenstine, from the Orleans Parish Indigent Defenders Office (“OIDP”) to sit at the defense table with defendant and assist him, if he needed any help. The defendant assented to that, stating: “Right, I want the assistance. I’m representing myself. But he could assist me if I need any help.” However, the prosecutor noted that an OIDP attorney had represented the defendant’s codefendant, who had pleaded guilty some eleven months earlier. The trial court then informed the defendant that he could not appoint Mr. Hortenstine to sit at the defense table and assist the defendant unless the defendant waived the conflict. The defendant refused to waive the conflict.

The trial court then stated that it was going to ask Mr. Jenkins to sit next to defendant at the defense table in case he needed assistance. The defendant strongly reiterated that he would not accept any help from Mr. Jenkins, whom he accused of sending him to the mental institution, a reference to the defendant previously being declared incompetent to proceed. The defendant strongly protested to being forced to sit with Mr. Jenkins during his trial. The trial court then stated that it would respect defendants’ wishes, but was going to have Mr. Jenkins sit in the first row during the trial, in case defendant needed any assistance during the trial. The defendant again stated that he did not want Mr. Jenkins to have anything to do with his case, and stated that he was not going to talk to Mr. Jenkins. The defendant asked that the record reflect that Mr. Jenkins had nothing to do with his case. The record does not indicate that the defendant consulted with Mr. Jenkins at anytime during the trial.

|2SIn State v. Leger, 2005-0011, p. 43 (La.7/10/06), 936 So.2d 108, 142, the Louisiana Supreme Court commented on the right to counsel, stating:

La. Const, art. 1, § 13 provides in pertinent part that “at each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.” The Sixth Amendment to the United States Constitution likewise carries such a guarantee. In State v. Harper, 381 So.2d 468 (La.1980), this court explained:
As a general proposition a person accused in a criminal trial has the right to counsel of his choice. State v. Leggett, 363 So.2d 434 (La.1978); State v. Mackie, 352 So.2d 1297 (1977); State v. Anthony, 347 So.2d 483 (La.1977). If a defendant is indigent he has the right to court appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, [407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ]; State v. Adams, 369 So.2d 1327 (La.1979); City of Baton Rouge v. Dees, 363 So.2d 530 (1978). An indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Rideau, 278 So.2d 100 (La.1973). An indigent’s right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. State v. Jones, 376 So.2d 125 (La.1979); State v. Leggett, supra; State v. Mackie, supra.

The defendant’s primary argument is that he was forced to go trial with counsel with conflicting loyalties. He was not. The defendant, who had filed a number of pro-se pretrial motions and writs, made an informed decision to represent himself. There is no indication that counsel, Robert Jenkins, who ultimately was appointed to assist the defendant, had any possible conflicting loyalties. That the defendant may have disagreed with Mr. Jenkins’s defense strategy or strategies does not equate to conflicting loyalties. Insofar as Mr. Hor-tenstine, the OIDP attorney who was unable to represent the defendant because another OIDP attorney had represented the defendant’s codefendant, the defendant [ 2(jWas not forced to waive the conflict and go to trial assisted by Mr. Hortenstine. He had the choice of having Mr. Jenkins assist him.

There is no merit to this pro assignment of error.

PRO SE ASSIGNMENT OF ERROR NO. 5

In his fifth pro se assignment of error, the defendant complains that the trial court erred in permitting inconsistent statements and false testimony, citing “Exhibit 15” to his pro se brief, which is a copy of trial transcript page. The defendant questioned AT & T employee Kenneth Ka-rarick as to whether Kararick told police that he observed the defendant taking wire off a pole. Kararick replied in the negative. The defendant then purported to “impeach” Kararick by showing him a police report, presumably containing something inconsistent with Kararick’s answer. The trial court, sua sponte, informed the defendant he could not show the police report to Kararick, because he could not ask the witness to review a statement he did not write.

However, the defendant had already elicited testimony from Officer Cross, who read from his police report and testified that “the reporting person observed [the defendant] removing several rows of copper telephone wire from the telephone poles located on Haynes Boulevard.” Officer Cross later identified that “reporting person” as “Mr. Eugene,” who, it later was made clear, was Kenneth Kararick.

The defendant suggests that his conviction was obtained through the use of false testimony. As discussed earlier in this opinion, such an assertion of false testimony is evaluated under the criteria set forth in Napue v. Illinois, supra, \ 27among which is the requirement the statements at issue be shown to be actually false.

In the instant case, the defendant has made no showing that Kenneth Karar-ick testified falsely when he denied that he had seen defendant taking wire off a pole. It is true that during the defendant’s cross examination of Officer Cross he had the officer read his police report, in which Cross wrote that the “reporting person,” Kararick, had observed the defendant removing several rows of copper telephone wire from the telephone poles located on Haynes Boulevard. However, during Ka-rarick’s initial direct examination by the State he testified that AT & T contractors were removing the wires from the poles, and that he did not see defendant until he observed the defendant drive past in the U-Haul truck loaded with AT & T wire. That Kararick’s testimony was inconsistent with what Officer Cross had written in his police report does not establish that Ka-rarick’s testimony was actually false. Therefore, the defendant has not met the standard required to urge this assignment of error successfully.

PRO SE ASSIGNMENT OF ERROR NO. 6

In his sixth pro se assignment of error, the defendant argues that the trial court erred when it “allowed fabricated statements in a coached police report.” This claim is extremely vague, and the defendant has failed to cite any allegedly fabricated statement. It appears the defendant is referring to his statement given to Officer Cross on the scene, after police stopped him.

The defendant argues in this assignment that he should have been read his Miranda rights when police detained him, and that before a confession may be introduced into evidence the State must establish that the accused was advised of l^such rights. The defendant also argues that there is no evidence in the police report that he knowingly and intelligently waived his rights. The defendant notes that he made no recorded statement, nor did he sign any statement.

Officer Cross testified at trial that after informing the defendant of his rights the officer asked the defendant about the cable. The officer testified that the defendant told him that a man who worked for AT & T told the defendant that if the defendant helped the man unload the copper wire the defendant could have some. Officer Cross testified at a December 14, 2007 motion to suppress hearing that his partner advised defendant and his companion, Don Boutan, of their rights. Officer Cross replied in the affirmative when asked whether the defendant and Boutan indicated that they understood those rights.

At no point in either his trial testimony or motion hearing testimony did Officer Cross indicate that the defendant waived his rights before giving a statement.

The defendant’s statement that an AT & T employee told him that if he helped the employee unload the copper wire the defendant could have some of it suggested knowledge by the defendant that the wire belonged to AT & T. Thus, his statement was somewhat inculpatory.

This court set forth the applicable law on the admissibility of inculpatory statements in State v. Butler, 2004-0880, p. 4 (La.App. 4 Cir. 1/12/05), 894 So.2d 415, 418, as follows:

It is well settled that before the state may introduce an inculpatory statement or confession into evidence, it must affirmatively show that the statement was free and voluntary and not the result of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; La.C.Cr.P. art. 703(D); State v. Gradley, 97-0641 (La.5/19/98), 745 So.2d 1160, 1166. The State 129must prove that the accused was advised of his Miranda rights and voluntarily waived these rights in order to establish the admissibility of a statement made during custodial interrogation. State v. Green, 94-0887, pp. 9-10 (La.5/22/95), 655 So.2d 272, 280; State v. Labostrie, 96-2003, p. 5 (La.App. 4 Cir. 11/19/97), 702 So.2d 1194, 1197. A court must look to the totality of the circumstances surrounding the confession to determine its voluntariness. State v. Lavalais, 95-0320, p. 6 (La.11/25/96), 685 So.2d 1048, 1053. The testimony of police officers alone can be sufficient to prove the defendant’s statements were freely and voluntarily given. State v. Jones, 97-2217, p. 11 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 396.

While there was no direct evidence that the defendant affirmatively waived his rights before making the statement to Officer Cross, given the defendant’s actions in representing himself prior to and at his trial, it is reasonable to conclude that he was well-aware that he did not have to say anything to the officer, and that he made what he viewed at the time as an exculpatory statement freely and voluntarily. Thus, it cannot be said that the trial court erred in denying the defendant’s motion to suppress the statement.

Even assuming arguendo that the trial court erred in denying the motion to suppress the statement, the erroneous admission of an inculpatory statement or confession is subject to the harmless error analysis. State v. Harris, 2001-2730, p. 26 (La.1/19/05), 892 So.2d 1238, 1260. An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172; State v. Barbour, 2009-1258, p. 14 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, 1150, writ denied, 2010-0934 (La.11/19/10), 49 So.3d 396, cert. denied, Barbour v. Louisiana, -U.S.-, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). Considering all of the evidence, it can be said beyond a reasonable doubt that thej^guilty verdict rendered in the instant ease was surely unattributable to any possible error by the trial court in denying the defendant’s motion to suppress the statement.

PRO SE ASSIGNMENT OF ERROR NO. 7

The defendant’s seventh pro se assignment of error reads, in its entirety:

The court erred when it denied petitioner an evidentiary hearing by the court, which a petitioner is entitled to a hearing when facts alleged, if true, would entitle him to relief.

Considering the lack of specificity of this assignment of error, defendant has effectively failed to brief it. Thus, it is considered abandoned. See State v. Alexander, 2003-2072, p. 17 (La.App. 4 Cir. 5/19/04), 875 So.2d 853, 862 (“This assignment of error was not briefed and is deemed to have been abandoned.”); see also Rule 2-12.4, Uniform Rules of Louisiana Courts of Appeal (“All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”).

PRO SE ASSIGNMENT OF ERROR NO. 8

In his eighth pro se assignment of error, the defendant argues that the trial court erred when it denied his “Motion to Suppress,” as well as all of his motions that were denied by the trial court and which were the subject of his writ applications to this court: “CONFLICT OF INTEREST, INEFFECTIVE ASSISTANCE OF COUNSEL, MOTION OF CONFLICT OF INTEREST GRANT RELIEF, WRIT: HABEAS CORPUS, petitioner has adequate remedy on appeal, violation of due process.”

However, the defendant presents no argument or specifics as to these issues. Thus, he has effectively failed to brief this assignment of error and it is considered | S1 abandoned. State v. Alexander, supra; Rule 2-12.4, Uniform Rules of Louisiana Courts of Appeal.

PRO SE ASSIGNMENT OF ERROR NO. 9

In this last of his nine pro se assignments of error, the defendant argues that the trial court erred when it allowed a conviction obtained through the use of false evidence. The defendant fails to specify the alleged false evidence in this assignment of error. Moreover, the issue of the State presenting alleged false evidence — the testimony of AT & T supervisor Chad Clark as to the value of the cable stolen by defendant — was fully addressed and resolved in addressing defendant’s counseled assignment of error number three and his pro se assignment of error number four, supra.

Thus, there is no merit in this, the defendant’s final assignment of error.

In summary, there is merit to the defendant’s claims in his counseled assignment of error number two, that the evidence was insufficient for any rational trier or fact to have found beyond a reasonable doubt that the value of the cable stolen by defendant was in the amount of five hundred dollars or more. However, the evidence was sufficient to find beyond a reasonable doubt that the cable had a value less than three hundred dollars, the lowest grade of theft under La. R.S. 14:67 at the time of the defendant’s arrest.

There is no merit to any of the defendant’s other counseled or pro se assignments of error, and he is free to raise the issue of ineffective assistance of counsel in an application for post conviction relief.

For the foregoing reasons, we reverse the defendant’s conviction and sentence for theft where the taking amounts to a value of five hundred dollars or |S2more, but remand the case to the trial court for entry of a judgment of conviction of theft where the taking amounts to a value of less than three hundred dollars and for resentencing based on that conviction.

The defendant is free to raise the issue of ineffective assistance of counsel in an application for post-conviction relief.

CONVICTION AND SENTENCE REVERSED; REMANDED

      . As in effect at the time of the offense, August 2007, prior to the enactment of Acts 2010, No. 585, § 1, which increased the amount to one thousand dollars. Defendant was charged jointly with Don Boutan, who pleaded guilty to theft under one hundred dollars on February 10, 2009.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

        . State v. LeBlanc, unpub., 2008-1264 (La. App. 4 Cir. 11/7/08) (“Relator has an adequate remedy on appeal.”); State v. LeBlanc, unpub., 2009-0444 (La.App. 4 Cir. 4/20/09) ("Relator has an adequate remedy on appeal," noting that relator had been found incompetent to proceed and that a competency hearing was scheduled for May 6, 2009).

      . State v. LeBlanc, unpub., 2009-1512 (La. App. 4 Cir. 1/4/10) (relator has an adequate remedy on appeal as to his evidentiary claims and his ineffective assistance claim may be raised on application for post-conviction relief).

      . State v. LeBlanc, unpub., 2010-0007 (La. App. 4 Cir. 1/11/10) (defendant may raise the issues on appeal, noting his January 6, 2010 conviction).

      . State v. LeBlanc, unpub., 2010-0130 (La. App. 4 Cir. 2/3/10) (stating that after defendant’s sentencing he may request the documents he seeks in conjunction with his appeal).

      . State v. LeBlanc, unpub., 2010-0480 (La. App. 4 Cir. 4/6/10) (failure to comply with Rules 4-2, 4-3, and 4-5 of the Uniform Rules of Louisiana Courts of Appeal).

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

      . At that time the lowest grade of the offense of illegal possession of stolen things was when the value of the stolen thing was less than one hundred dollars.

      . Similarly, the valuation of a stock six months before or after a certain date is no indication of its value on a certain date, espe-dally in times of significant market fluctuations such as the times we are currently in.

      . See State v. Higgins, 2003-1980, p. 1 (La.4/1/05), 898 So.2d 1219, 1224 (‘‘[W]e reverse the defendant’s first degree murder conviction and death sentence, but find the record supports the conclusion that the defendant is guilty of second degree murder and remand the case to the trial court for entry of [sic] judgment of guilty of second degree murder and for resentencing....” (emphasis added)); Williams, 610 So.2d at 130 ("The portion of the judgment of the court of appeal reversing the conviction of possession of stolen property valued at $500.00 or more is affirmed, but the case is remanded to the district court for entry of a judgment of conviction of possession of stolen property valued at less than $100.00 and for resentenc-ing." (emphasis added)).

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


source: Caselaw Access Project

author: KIRBY, Judge.

license: Public Domain

text:
    ORLEANS PARISH SCHOOL BOARD v. LEXINGTON INSURANCE COMPANY, Aon Risk Services, Inc. of Louisiana, James Lawler, and ABC Insurance Company.
    Nos. 2011-CA-0009, 2010-C-1662.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 2011.

      Brent B. Barriere, Harry Rosenberg, D. Skylar Rosenbloom, Sarah E. Vandergriff, Phelps Dunbar LLP, New Orleans, LA, Robert A. Kuteher, Nicole Tygier, Chopin Wagar Richard & Kuteher, LLP, Metairie, LA, Terrill Boykin, Kriste Taitón Utley, Boykin Ehret & Utley, Trevor G. Bryan, Bryan & Jupiter, APLC, New Orleans, LA, for Plaintiff/Appellee.
    Shelley Hammond Provosty, Law Office of Shelley Hammond Provosty L.L.C., James M. Garner, Debra J. Fischman, Sharonda R. Williams, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for the Louisiana State Board of Elementary and Secondary Education, the Louisiana Department of Education and the Recovery School District.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   KIRBY, Judge.

|Jn this consolidated case, intervenors, the Louisiana State Board of Elementary and Secondary Education, the Louisiana Department of Education and the Recovery School District (hereinafter collectively referred to as “RSD”), appeal the July 7, 2010 trial court judgment granting partial summary judgment in favor of plaintiff, Orleans Parish School Board (hereinafter referred to as “OPSB”), and denying inter-venors’ motion for summary judgment. The judgment appealed from involves a ruling regarding the applicability to RSD’s intervention claims of Act 35 of the First Extraordinary Session of 2005 of the Louisiana Legislature. By order dated January 10, 2011, a writ application taken by RSD from the October 22, 2010 trial court judgment was consolidated with the appeal of the July 7, 2010 judgment. The judgment that is the subject of the writ application includes an order issued by the trial court regarding the handling of insurance proceeds currently on deposit in a joint bank account held by OPSB and RSD, and the handling of insurance proceeds received in the future for losses from damage to certain properties caused by Hurricane Katrina.

This litigation began when OPSB filed a lawsuit against its commercial property insurer on August 9, 2006, seeking recovery for damages sustained to |2certain insured properties as a result of Hurricane Katrina’s August 29, 2005 landfall and its aftermath. As of the time of filing of the original petition, OPSB claimed to have received only half of the policy limits on its primary commercial property policy. OPSB later amended its petition to include as defendants its excess commercial property insurers. RSD intervened in the lawsuit, claiming to have an interest in OPSB’s pending action due to the November 2005 enactment by the Louisiana Legislature of La. R.S. 17:10.7 and the amendment to La. R.S. 17:1990 (both contained in Act 35), which resulted in the transfer to RSD of 107 schools that had previously been under the jurisdiction of OPSB, and in changes to rules regarding the rights and responsibilities of RSD.

OPSB subsequently filed a second supplemental and amending petition, instituting a concursus proceeding for the insurance proceeds at issue, and alternatively, seeking a declaratory judgment that OPSB is the sole owner of proceeds from its insurance policies in effect at the time of Hurricane Katrina. In this pleading, OPSB acknowledged that funds already received by its primary insurance carrier were being held in a joint bank account in the names of both OPSB and RSD, but that OPSB was the sole signatory at that time. RSD then filed its own supplemental and amending petition seeking a declaratory judgment that, pursuant to La. R.S. 17:1990(4)(b)(iii), it has the right to receive any and all insurance proceeds paid in connection with damages caused by Hurricane Katrina to properties now under the jurisdiction of RSD.

After filing the above pleadings, both OPSB and RSD filed motions for summary judgment. The central issue of the summary judgment motions filed by OPSB and RSD is whether or not certain provisions of Act 35 of the First Extraordinary Session of 2005 of the Louisiana Legislature can be applied to |sRSD’s intervention claims against OPSB. Act 35, effective on November 30, 2005, enacted La. R.S. 17:10.7, which, as stated above, resulted in the transfer to the RSD of 107 OPSB schools, and amended La. R.S. 17:1990, which changed certain provisions regarding the rights and responsibilities of RSD, and added new provisions. R.S. 17:1990 includes the following sections that are pertinent to this appeal:

(4)(a) The school district [RSD] shall have the right to use any school building and all facilities and property otherwise part of the school and recognized as part of the facilities or assets of the school prior to its placement in the school district and shall have access to such additional facilities as are typically available to the school, its students, and faculty and staff prior to its placement in the school district. Such use shall be unrestricted, except that the school district shall be responsible for and obligated to provide for routine maintenance and repair such that the facilities and property are maintained in as good an order as when the right of use was acquired by the district. There shall be no requirement for the district to provide for the type of extensive repair to buildings or facilities that would be considered to be a capital expense. Such extensive repairs shall be provided by the governing authority of the city, parish, or other local public school system or other public entity which is responsible for the facility.
(b)(i) In the case of the transfer of schools pursuant to R.S. 17:10.7, the school district may, at the discretion of the administering agency and notwithstanding the provisions of Subparagraph (a) of this Paragraph, acquire with the transfer of the schools all the rights and responsibilities of ownership regarding all land, buildings, facilities, and other property that is part of the school being transferred, except that the school district may not transfer the ownership of the land or usable buildings constructed on the land to another, other than in the manner and under the circumstances provided for in Item (iv) of this Subpara-graph, save returning the land and such buildings to the stewardship of the prior system. The district may lease land or property, dispose of property other than the land as is necessary to properly manage the operation of the schools, rebuild school buildings, or renovate school buildings.
U(ii) No building shall be destroyed pursuant to the authority of the school district unless the destruction of the building has been approved by the office of facility planning in the division of administration.
(iii) In the case that the rights and responsibilities provided for in this Sub-paragraph are acquired by the school district, the school district, through its administering agency, shall be the exclusive authority to receive, manage, and expend any and all state, local, or federal funding dedicated to or available for the purpose of repairing, renovating, or rebuilding, or building a school building or facility and any and all insurance proceeds attributable to damage done to any property, except that portion of such insurance proceeds used to pay debt owed by the prior system. A portion of all revenues available to the prior system which are dedicated to the repair, maintenance, or capital projects regarding a transferred school whether such revenue is available from tax proceeds, was borrowed, bonded, or was otherwise acquired shall be transferred by the system to the recovery district in an amount equal to the proportion that the number of schools transferred from such school system bears to the total number of schools operated by the school system during the school year immediately proceeding the school year in which the transfer occurred.

OPSB asked for summary judgment declaring that RSD has no right to the insurance proceeds arising out of damages sustained by property owned and controlled by OPSB at the time of Hurricane Katrina. In its memorandum in support of its motion for summary judgment, OPSB argued that ownership rights to the insurance proceeds at issue vested in the OPSB at the time of the loss, i.e. the landfall of Hurricane Katrina and its aftermath. OPSB also argued that the language set forth in the November 2005 amendment to La. R.S. 17:1990, included in Act 35, failed to assign ownership of the insurance proceeds to RSD. The basis for this argument by OPSB is that the damage to OPSB properties occurred prior to |fithe enactment of Act 35, and the Legislature did not designate Act 35 to apply retroactively.

RSD asked for summary judgment declaring that it has the right to pursue and receive all insurance proceeds arising out of damages sustained by former OPSB properties that were transferred to RSD subsequent to Hurricane Katrina. In support of its motion, RSD argued that because it acquired the rights and responsibilities of ownership of OPSB schools pursuant to La. R.S. 17:1990(4)(b)(iii), it has the legal right to the insurance proceeds at issue, except that portion used to pay down debt of OPSB, for damage caused by Hurricane Katrina to all lands, buildings and other property of the transferred schools. RSD further argued that Act 35, although silent on the issue of ret-roactivity, should be applied retroactively because the Legislature’s intent in enacting this legislation was to allow RSD to recover insurance proceeds attributable to damage caused by Hurricane Katrina to schools transferred to its jurisdiction so that RSD could use these proceeds to repair and rebuild these schools. According to RSD, if OPSB were allowed to receive insurance proceeds for damage to schools that are no longer under its jurisdiction, the result would be an unjust windfall to OPSB. An alternative argument made by RSD is that the statute in question is interpretative, rather than substantive, and is therefore entitled to retroactive application. RSD also argued that when R.S. 17:10.7 authorized the transfer of certain OPSB school properties to RSD, and RSD elected to acquire the rights and responsibilities of ownership, this effectuated a valid post-loss assignment to RSD of the rights to all insurance proceeds available under any applicable insurance policy.

Following a hearing on the opposing motions for summary judgment, the trial court rendered judgment on July 7, 2010, denying RSD’s motion, and granting | (jOPSB’s motion in part and denying it in part. In reasons for judgment, the trial court indicated that OPSB’s motion for summary judgment was being granted only for the purpose of finding no issue of material fact that Act 35, enacted by the Louisiana Legislature in November 2005, is substantive in nature and, therefore, cannot be applied retroactively so as to allow RSD to seek payment from OPSB’s insurers for proceeds under the policies held by OPSB at the time of Hurricane Katrina. Importantly, the trial court stated that it was not ruling in this judgment that rights to the insurance proceeds at issue vested in the OPSB at the time of loss, and noted that RSD might have a claim for a pro rata portion of the proceeds to repair the schools now under its jurisdiction. However, the court found that any claim by RSD to any of the insurance proceeds is premature until such time that the underlying dispute between OPSB and its insurers is resolved. RSD has appealed the ruling of the trial court on the summary judgments filed by OPSB and RSD.

Before we reach the merits of this appeal, we must address OPSB’s motion to dismiss RSD’s appeal. By order dated March 31, 2011, a panel of this Court denied OPSB’s claim that RSD’s appeal was untimely, but referred to the panel hearing the appeal the issue of the propriety of the trial court’s designation that the July 7, 2010 judgment is a partial summary judgment that is final for purposes of an immediate appeal.

Following a hearing on RSD’s motion to certify the July 7, 2010 judgment as final, the trial court stated that the judgment did not result in a summary dismissal of RSD’s intervention. Rather, RSD’s claims in its intervention are simply premature until such time that proceeds are received by the named insured, OPSB, and after such funds are used to satisfy any debt owed by OPSB. The trial |7court found that the July 7, 2010 judgment is a partial summary judgment, and certified it as final for purposes of an immediate appeal pursuant to La. C.C.P. 1915(B)(1). We agree.

Because the trial court did not expressly state reasons for certifying the judgment as final, we have conducted a de novo determination of whether the certification was proper in accordance with the rules set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113. The original petition in this matter was filed more than five years ago, and resolution of the issues raised in this appeal will allow the litigation to advance. We find that the judgment granting partial summary judgment in favor of OPSB was properly certified as final as there is no just reason for delay.

On appeal, RSD asserts three assignments of error:

(1) the trial court erred in finding that the November 2005 amendments to La. R.S. 17:1990(4)(b)(iii) were not intended to apply retroactively to RSD’s claim for insurance proceeds attributable to damage from Hurricane Katrina to former OPSB properties that were subsequently transferred to RSD;
(2) The trial court erred in finding that the amendments to La. R.S. 17:1990 were not interpretative of prior law such as to allow retroactive application of the statute, and in failing to address the issue of prospective application of the statute to the proceeds at issue; and
(3) The trial court erred in holding that La. R.S. 17:1990(4)(b)(iii) did not constitute a legislative assignment of the claim for the insurance proceeds for Hurricane Katrina damage to former OPSB properties that were transferred to the jurisdiction of RSD subsequent to Hurricane Katrina by virtue of the enactment of Act 35.

Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if [ sany, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La. App. 4 Cir. 3/31/99), 731 So.2d 983.

After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31,258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

In this case, it is undisputed that the Louisiana Legislature did not state that the provisions of Act 35 of the First Extraordinary Session of 2005, including the amendment to R.S. 17:1990, are to be applied retroactively. Because the legislature did not express its intent regarding the retroactive or prospective application of this statute, we must classify the law as substantive, procedural or interpretative. M.J. Farms, Ltd. v. Exxon Mobil Corporation, et al., 2007-2371, p. 1918 (La.7/1/08), 998 So.2d 16, 29; Jacobs v. City of Bunkie, 98-2510, p. 8 (La.5/18/99), 737 So.2d 14, 20. Citing Sudwischer v. Estate of Hoffpauir, 97-0785, p. 8 (La.12/12/97), 705 So.2d 724, the Supreme Court, in Jacobs v. City of Bunkie, supra, set forth the following definitions:

Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretative laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws.

The trial court found that La. R.S. 17:1990(4)(b)(iii), added to La. R.S. 17:1990 in 2005, is a substantive change in the law because it significantly expands the power of RSD. We agree. As a substantive law, it can only be applied prospectively. La. C.C. Art. 6. We find no merit in RSD’s argument that this statute is interpretative, and therefore should be applied both prospectively and retroactively. After comparing the pre-2005 version of La. R.S. 17:1990 and the changes made in the 2005 amended version, we conclude that the addition of La. R.S. 17:1990(4)(b)(iii) does much more than merely clarify existing law.

Even though both parties agree that the legislature did not express its intent as to whether La. R.S. 17:1990(4)(b)(iii) is to be applied retroactively, RSD contends that the legislature must have intended for this statute to have retroactive application as it relates to state and federal funding and insurance proceeds attributable to damage to school properties due to Hurricane Katrina. RSD argues that to not apply R.S. 17:1990(4)(b)(iii) retroactively would lead to an absurd result.

|inWe disagree with these arguments of RSD. The gist of the July 7, 2010 trial court judgment is that only OPSB is entitled to pursue claims against its insurers for damages to its insured properties caused by Hurricane Katrina. OPSB is the only named insured on the policies at issue, and the losses covered by these policies were sustained prior to the November 2005 amendments to La. R.S. 17:1990. Because La. R.S. 17:1990(4)(b)(iii) is a substantive change in the law that is not entitled to retroactive application, RSD cannot rely on this statute to participate in OPSB’s litigation with its insurers as to claims on policies to which RSD was not a party at the time of the loss. The ruling of the trial court did not result in a dismissal of RSD’s intervention against OPSB. It simply means that RSD’s claim for a share of the insurance proceeds claimed by OPSB is premature until such time that OPSB has resolved its claims with its insurers.

Furthermore, we find no merit in RSD’s argument that La. R.S. 17:1990(4)(b)(iii) constitutes a legislative post-loss assignment of insurance proceeds for Hurricane Katrina damage to former OPSB properties that were transferred to the jurisdiction of RSD by virtue of Act 35. The statute does not reveal any intention to assign insurance proceeds otherwise payable to OPSB to RSD for losses incurred prior to the effective date of the statute.

Even assuming arguendo that this statute were to be given retroactive application and constituted a valid post-loss assignment, we agree with the trial court’s finding that the inclusion in La. R.S. 17:1990(4)(b)(iii) of the clause that RSD shall receive insurance proceeds for damaged property, except that portion of such insurance proceeds used to pay debt owed by the prior system, shows that |nRSD would have no right to receive such insurance proceeds until the proceeds have been disbursed to the named insured first. This precedent condition is one that would have to be met before RSD could be awarded any insurance proceeds recoverable for policies issued to the prior system.

In supplemental briefs, both RSD and OPSB discussed the recent Louisiana Supreme Court case of In re Katrina Canal Breaches Litigation, 2010-1823 (La.5/10/11), 68 So.3d 955, which addressed the issue of whether or not an anti-assignment clause in an insurance policy can apply to post-loss assignments. Because of our conclusion that La. R.S. 17:1990(4)(b)(iii) does not constitute a post-loss assignment, the holding of this recent Supreme Court case does not apply in this case.

The writ application consolidated with this appeal, 2010-C-1662, involves a request by RSD for supervisory review of the trial court’s October 22, 2010 ruling, which denied OPSB’s motion for summary judgment asking for a declaration that it was entitled to immediately withdraw any and all of the insurance proceeds being held in the joint bank account held by the OPSB and RSD. However, the trial court also issued an order on the handling of the funds at issue, to which RSD objects. The order issued in the October 22, 2010 judgment, but stayed pending resolution of this writ application, states as follows:

1. Within fifteen (15) days of the date of entry of this Order, OPSB and Intervenors shall take such actions as may be necessary to deposit into the registry of the Court all funds on deposit in the Joint Account.
2. Following deposit of the funds into the registry of the Court, OPSB and Intervenors may each file an appropriate motion or 112cross motion requesting an order directing disbursements of all or any portion of the funds.
3. Any monies paid in the future by any of the Defendants in connection with either their respective insurance policies issued to the OPSB or in connection with any of the claims, demands or causes of action asserted against any one or more of them in this civil action shall be paid exclusively to OPSB. Within five (5) days of its receipt of any payment by a Defendant, OPSB shall give written notice to counsel for Interve-nors which notice shall identify the date of payment, amount of payment and name of payor. Intervenors shall then have the opportunity to respond to the notice and assert their claim to a portion of the monies identified in this notice.

RSD argues that a letter agreement executed by OPSB and RSD prior to the October 22, 2010 judgment controls the receipt and allocation of the insurance proceeds at issue. However, this letter agreement included the provision that “[t]he final allocation of those funds will be reserved to be determined at a later date, either by agreement between the parties or by a judicial decree by the Court in the litigation ...” We find that the trial court’s October 22, 2010 order provides the framework for the allocation of the funds at issue, and, as a result, the letter agreement between the parties is no longer in effect.

In granting OPSB’s motion for partial summary judgment in its July 7, 2010 judgment, the trial court held that La. R.S. 17:1990(4)(b)(iii) cannot be applied retroactively so as to allow RSD to seek payment from OPSB’s insurers for proceeds under the policies held by OPSB at the time of Hurricane Katrina. Because OPSB was the only named insured on the policies at the time of loss, any proceeds found owing under the policies must be paid to OPSB only. OPSB is bound by the October 22, 2010 court order to notify RSD within five days of receipt of proceeds from the policies covering losses from Hurricane Katrina. RSD can then pursue a claim for reimbursement against OPSB. But under the law 1 isin effect at the time the losses from Hurricane Katrina were incurred, OPSB is the sole party entitled to recover proceeds from its insurers on policies on which it was the sole named insured. The trial court’s October 22, 2010 order is consistent with its ruling of July 7, 2010. Because we are affirming the trial court’s July 7, 2010 judgment, we find no error in its ruling of October 22, 2010.

For the reasons stated above, the trial court’s July 7, 2010 judgment in Appeal No. 2011-CA-0009 is affirmed. We deny RSD’s writ application in 2010-C-1662, finding no error in the trial court’s ruling.

JUDGMENT OF JULY 7, 2010 AFFIRMED; WRIT APPLICATION 2010-C-1662 DENIED.

      . We note that the trial court allowed RSD to amend its petition of intervention to add a claim for reimbursement of its share of the insurance proceeds claimed by OPSB based on a theory of unjust enrichment.


author: PAINTER, Judge.

text:
    Rainey WALLACE v. The GEO GROUP, INC., et al.
    No. CA 11-863.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Roy Maughan, Maughan Law Firm, Baton Rouge, LA, Charles A. Sam Jones, III, Attorney at Law, DeRidder, LA, for Plaintiff/Appellant, Rainey Wallace.
    Samuel Bryan Gabb, Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, The Geo Group, Inc.
    Joseph Richard Pousson, Jr., Plauché, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, Brandon Lofton.
    Court composed of OSWALD A. DECUIR, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

h This court, on its own motion, issued a rule to show cause ordering the plaintiff-appellant, Rainey Wallace, to show cause by brief only why the appeal in this case should not be dismissed as premature. The appellant filed a response to this rule to show cause. For the reasons explained in this opinion, we recall the rule to show cause, but we order a supplemental record be prepared and transmitted to this court by the district court’s clerk’s office, at the plaintiffs cost.

The appellant filed an appeal in this case, and designated the record to be provided to this court pursuant to La.Code Civ.P. art. 2128. Upon receipt of this record, this court noted the absence of a final judgment. The record did include the trial court’s order denying the appellant’s motion for new trial. Therefore, this court issued the subject rule for the appellant to show cause why the appeal should not be dismissed as premature. In responding to this rule, the appellant stated that the failure to have the record include the final judgment was an error on his part, and he attached a copy of the order which he claims he is appealing.

However, the order attached to the appellant’s response to this court’s rule to show cause is the order that is included in the record prepared by the district court. This order, though, denies the appellant’s motion for new trial. The denial of a motion for new trial is not an appealable order; however, where the argument by the appellant indicates that the appeal is intended to be from the final judgment, the appeal should be maintained by the appellate court. See McClure v. City of Pineville, 2005-1460 (La.App. 3 Cir. 12/6/06), 944 So.2d 805, writ denied, 2007-43 (La.3/9/07), 949 So.2d 446.

Due to this confusion caused by the response to the rule, then, this court withheld its opinion on this rule pending the briefing of the appeal by the parties. This court has now received the appellate briefs by both the appellant and the appellees. A reading of the appellant’s brief clearly shows that the appellant is |2challenging the trial court’s judgment which granted the appellees’ motion for summary judgment and ordered the dismissal of the appellant’s suit, not the trial court’s order denying the appellant’s motion for new trial. In the appellees’ brief, the appellees state in footnote that the appellant failed to designate the final judgment as a part of this designated record. However, this court also notes that the appellees do not contend that the failure of the appellant to have the final judgment included in the designated record prejudices the appellees.

Louisiana Code of Civil Procedure Article 2161 states:

An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.

Furthermore, La.Code Civ.P. art. 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

While this court is cognizant of the fact that La.Code Civ.P. art. 2161 provides that an appeal should not be dismissed because of an error unless it is imputable to the appellant and, in this instance, the error is due to the appellant’s failure to designate the record properly, we also recognize the general rule that appeals are favored in law and should not be dismissed on a mere technicality. See U.S. Fire Ins. Co. v. Swann, 424 So.2d 240 (La.1982). We find this especially true where, as in the instant case, the appellees have not shown that they will suffer any prejudice from a supplementation of the record.

| sIn Perkins v. Salas, 507 So.2d 827 (La.App. 5 Cir.1987), the record had failed to include a final judgment. In that case, the court remanded the case to the district court for entry of the final judgment into the record in order to cure the defective record. In the instant case, we find that a remand is unnecessary. As indicated above, the appellees admit that a final judgment has been rendered. This judgment was signed by the trial court on February 2, 2011. Therefore, remanding this case at this time could result in a subsequent appeal by the appellant being denied as untimely. We find that, under the facts presented in this instance, the more judicially efficient manner of curing this defect while preserving the appellant’s right to an appeal is for this court to exercise its right under La.Code Civ.P.art. 2132 to order the Clerk of Court’s Office for the Thirty-third Judicial District Court, Parish of Allen, to prepare and transmit to this court a supplemental record, in duplicate, containing the trial court’s final judgment signed on February 2, 2011. Costs for this supplemental record are assessed to the appellant.

RULE RECALLED. SUPPLEMENTAL RECORD ORDERED.