author: GERBER, J.

text:
    Jeannine LE and Son Le, individually and as parents, natural and legal guardians of Thailor Le, a minor, Appellants, v. LIGHTHOUSE ASSOCIATES, INC., d/b/a Carlson Ross Pool & Spa, Appellee.
    No. 4D09-441.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    William J. McFarlane, III of Law Offices of McFarlane & Dolan, Coral Springs, for appellants.

      John S. Penton, Jr. of Cole, Scott & Kissane, P.A., West Palm Beach, for appel-lee.
   GERBER, J.

In this negligence case, the plaintiffs appeal from the circuit court’s order granting the defendant’s motion for summary-judgment. We reverse because the circuit court misplaced the burden of proof in granting the motion.

The plaintiffs alleged that then* son was exposed to unsanitary conditions while swimming in a community pool which the defendant maintained. The plaintiffs further alleged that, as a result of the defendant’s negligence, their son suffered personal injuries.

The defendant’s motion for summary judgment alleged, in pertinent part, that “the Plaintiffs have produced no credible evidence, nor does any such evidence exist, which would entitle them to relief. With regards to the Plaintiffs’ claim that the Defendant failed to maintain the community swimming pool ... the Plaintiffs have failed to produce evidence showing that the minor Plaintiffs injuries were the direct and proximate result of the minor Plaintiffs contact with the allegedly contaminated community pool.” The defendant later characterized its motion as a “No Evidence Motion for Summary Judgment.”

In opposition to the motion, the plaintiffs first filed the affidavit of a toxicologist. The toxicologist opined that, as a result of the plaintiffs’ son ingesting water at the community pool, the son contracted a virus which caused the son’s injui'ies.

The defendant moved to strike the toxicologist’s affidavit. The defendant argued that the toxicologist was not qualified to render opinions on infectious diseases or theories related to the causation of infectious diseases such as the virus at issue. The defendant also argued that the statements in the toxicologist’s affidavit wei*e conclusory and without proof. The circuit court granted the motion to strike.

The plaintiffs then opposed the motion for summary judgment by filing the affidavit of an infectious disease physician. Like the toxicologist, the infectious disease physician opined that, as a result of the plaintiffs’ son ingesting water at the community pool, the son contracted a virus which caused the son’s injuries.

The circuit court granted the motion for summary judgment. In its order, the court held, in pertinent part, “Plaintiffs claims are based on stacking of inference upon inference. It would not have been enough factual evidence to go to the jury. And at this point none has been developed, and no outstanding discovery is proffered to the Court.” The court further commented that the infectious disease physician’s affidavit was based on the stacking of inferences, such as the physician’s statements that the plaintiffs son “may have” contracted the virus from ingestion of the swimming pool water, and that the virus was “the most likely cause” of the son’s injuries. The court also found that City of Tamarac v. Varellan, 463 So.2d 479 (Fla. 1st DCA 1985), was “directly on point and dictates the holding in the current case.”

After the court entered a final judgment in the defendant’s favor, the plaintiffs filed this appeal. Our review is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010) (“‘The standard of review of an order granting summary judgment is de novo.’ ”) (citation omitted).

We find that the circuit court misplaced the burden of proof in granting the motion for summary judgment. As we stated in Lindsey:

When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, “the nonexistence of a genuine issue of a material fact.”

Id. (citation omitted; emphasis added).

Here, the defendant’s motion for summary judgment requested the court to determine that the plaintiffs could not prove their cause of action.. The court, in turn, found that the plaintiffs had not produced enough evidence to prove their cause of action. Such a finding ultimately may be proper upon a motion for directed verdict at trial. See Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008) (a directed verdict is properly entered when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party’s claim). However, such a finding is not proper upon a motion for summary judgment. See Lindsey, 50 So.3d at 1206.

The case upon which the circuit court relied, City of Tamarac, is factually on point, but procedurally distinguishable. There, a claimant sought worker’s compensation benefits on the ground that he allegedly contracted the hepatitis-B virus while swimming in an algae-laden pool during a work-related duty. The case went to a final hearing, akin to a trial. The claimant’s expert testified that the probable cause of the hepatitis was the pool, possibly mouth-to-mouth resuscitation, or other unknown causes. Relying on the expert’s testimony, the hearing officer found that the claimant suffered a compensable injury.

The first district reversed. The court found there was no evidence that the pool was contaminated with the hepatitis-B virus. Based on that finding, the court held that the claimant failed to produce any competent, substantial evidence which showed a causal connection between his swimming in a pool which was not shown to have been contaminated and his contracting the hepatitis-B virus. City of Tamarac, 463 So.2d at 480.

City of Tamarac is procedurally distinguishable. The first district based its findings upon its review of what effectively was a trial. The court clearly articulated that the claimant had the burden of proof. On a motion for summary judgment, however, the defendant has the burden of proof. Lindsey, 50 So.3d at 1206.

We find that the more applicable case, if not the controlling case, is our supreme court’s opinion in Visingardi v. Tirone, 193 So.2d 601 (Fla.1966). There, the plaintiff alleged that the defendant’s negligent medical treatment of his wife resulted in her death. After extensive discovery, the defendants moved for summary judgment and filed affidavits in support thereof. In general, these affidavits, merely asserted that the defendants acted in accordance with accepted standards of the community. In opposition, the plaintiff filed a doctor’s affidavit listing the defendants’ alleged negligent acts and opining that those acts proximately caused the wife’s injuries, leading to her death. The defendants moved to strike the affidavit on the ground that it failed to 'set forth sufficient facts that would be admissible at trial. The circuit court granted the motion to strike and then entered summary judgment for the defendants.

On appeal, the plaintiff argued that the doctor’s affidavit affirmatively demonstrated the defendants’ negligence. The third district affirmed. Visingardi v. Tirone, 178 So.2d 135 (Fla. 3d DCA 1965). The third disti'ict held that the doctor’s affidavit was properly stricken as failing to contain sufficient allegations that would have been admissible at the time of trial.

On petition for writ of certiorari, the supreme court quashed the third district’s decision. We quote the supreme court’s reasoning at length because of its remarkable similarity to the instant case:

The basic error in ... the instant case consisted of the failure of the lower courts to distinguish adequately between the plaintiffs burden at the trial and that which he bore as the party opposing a motion for summary judgment.... [T]he lower courts appeared to proceed as though the movant’s burden in the latter circumstance were something less than to show conclusively that no material issues remained for trial. The result, of course, was to place upon the opposing party a heavier burden of showing such triable issues than the rule either requires or allows to be placed upon him.
... In other words, the burden of a party moving for summary judgment is greater, not less, than that of the plaintiff at the trial. The plaintiff may prevail on the basis of a mere preponderance of the evidence. However, the party moving for summary judgment must show conclusively that no material issues remain for trial.
... [T]he same erroneous view concerning the burden of the party opposing a motion for summary judgment also seemed to infect the district court’s af-firmance of the striking of [the doctor’s] affidavit herein.... [T]he specific defect which rendered [the doctor’s] affidavit insufficient in the district court’s view was its failure to establish causal relation between the injury and the negligence alleged. We hold, to the contrary, that to strike an affidavit filed in opposition to a motion for summary judgment pursuant to such reasoning as this is to place a burden on the opposing party that is not justified by the summary judgment rule.
Rule 1.36, F.R.C.P., 30 F.S.A., requires, inter alia, that affidavits filed either in support of or in opposition to a motion for summary judgment ‘shall set forth such facts as would be admissible in evidence... .’t] It does not require the opposing party — usually the plaintiff, in negligence actions — to make out his whole case before his affidavit is admissible. In the instant case, [the doctor’s] affidavit set out a number of acts of negligence allegedly chargeable to these defendants. Insofar as the facts set out in the affidavit were not inadmissible as falling outside the bounds of the allegations contained in the complaint, or on ground of being privileged, hearsay, or the like, they certainly constituted ‘such facts as would be admissible in evidence.’ Moreover, to the extent that the facts so alleged revealed material issues remaining for trial, the doctor’s affidavit should have been sufficient to preclude summary judgment.
At the trial, to be sure, the plaintiff herein would have the burden of proving, not only the acts of negligence, but their causal relationship with the injury alleged. However, unless the record that is considered on motion for summary judgment otherwise shows an absence of such causal relationship, the plaintiff, who is opposing the motion, is under no obligation to put in evidence showing such causal relationship. In other words, causal relationship, as any other material issue, should be considered a triable issue that will preclude summary judgment until it is conclusively shown, by affidavit or other permissible evidence, that no causal relationship exists and trial of it is no longer required. Of course, if the negligent acts alleged are shown to be so obviously unrelated to the injury that the court can so hold as a matter of law, there could obviously be no recovery, and summary judgment in favor of the defendant would be proper.
This confusion of the plaintiff’s burden at trial with his burden as the party opposing a motion for summary judgment is revealed very clearly in the [defendant doctor’s] Brief.... Thus, he states the following as the applicable law of summary judgment:
‘On defendant’s motion for summary judgment the plaintiff must come forward with sufficient, substantial, competent, evidentiary support for each and every fact which he must establish in order to prevail. If it appears that he has not, and that a directed verdict would be justified were the case at trial, the trial court must grant summary judgment in favor of the defendant.’
And again ... [the defendant doctor] relates,
‘In an attempt to meet his burden to show by expert testimony that defendant had departed from the requisite standard of care, and that this departure proximately caused ... [the decedent’s] death therefrom, plaintiff filed the affidavit in question.’
Both passages correctly state the burden of the plaintiff at trial; both are inaccurate as to his burden as the party opposing a motion for summary judgment.
In his Brief on the Merits, [the defendant doctor] also- cites the authority of cases ... in support of his position that plaintiffs affidavit should be stricken as failing to show causal relationship between the negligence alleged and the injury suffered. However, inspection of the cited opinions shows that none is apposite here. In every instance, the decision relates to the failure of the plaintiff to sustain his burden at trial, not in opposition to a motion for summary judgment.

193 So.2d at 603-05 (internal citations omitted).

Visingardi is procedurally indistinguishable from the instant case. Here, the circuit court’s decision relates to what would be the failure of the plaintiffs to sustain their burden at trial, not in opposition to a motion for summary judgment. However, under the current state of the law, a motion for summary judgment cannot be used as a pre-trial motion for directed verdict. We are compelled to reverse.

Reversed.

GROSS, C.J., and TAYLOR, J., concur.

      . This phrase now is included in Florida Rule of Civil Procedure 1.510(e) (2009).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Elizabeth LAMPERT, Appellant, v. Rodney LAMPERT, Appellee.
    No. 4D10-2058.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Nancy W. Gregoire and Katherine O. Birnbaum of Kirschbaum, Birnbaum, Lipp-man <⅞ Gregoire, P.L.L.C., Fort Lauder-dale, for appellant.
    Cynthia L. Greene of Law Offices of Greene Smith & Associates, P.A., Miami and The Law Offices of Stephanie P. Caw-ein, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Pursuant to a marital settlement agreement incorporated into their divorce decree, the former husband, Rodney Lam-pert, agreed to pay the former wife, Elizabeth Lampert, child support in the amount of $2091.22 every month beginning in July 2007 and ending when their youngest child turned eighteen in July 2013. To provide for an equitable distribution of their assets, the former husband executed a promissory note in favor of the former wife in the amount of $392,000. In November 2007, the former husband stopped paying child support and making payments on the note, asserting he could not afford these payments. As an accommodation for the former husband’s claimed inability to pay, on April 1, 2008, the former wife entered into an Agreement for Satisfaction of Debt (the “Agreement”) with the former husband.

The Agreement provided that: (1) as of the date of the Agreement, the former husband’s balance of child support was $140,111.72; (2) the former husband’s promissory note, which required monthly payments of $3,175.93 beginning July 1, 2007, for a ten-year term, had a balance due at time of Agreement of $365,231.85; (3) as a prepayment incentive, the former wife agreed to discount the balance due on the promissory note by twenty percent resulting in a new balance due of $292,185.48; (4) making the total balance due of $432,297.22. Pursuant to the Agreement the former wife agreed to accept a piece of real estate in Tennessee which the former husband owned and represented was worth $420,000 plus $12,297.22 in cash. The parties agreed that the former husband’s debt on the note and his obligation to pay child support would be completely satisfied and the former wife would have no right to demand payment of any child support. When the former wife was unable to sell the property and was in need of cash to provide for the children’s basic needs, the former wife asked the former husband to purchase the property back from the former wife for $250,000. He offered $175,000, which she accepted.

Within a year, the former wife filed a motion for enforcement of child support asserting that the Agreement was not in the best interests of the children and had not been ratified by the court. A general magistrate held a hearing at which both parties testified. Thereafter, in her report, the general magistrate found that the Agreement was valid only as it pertained to equitable distribution and not to the child support issues, citing Essex v. Ayres, 503 So.2d 1365 (Fla. 3d DCA 1987). She further found that the transfer of the property to the former wife to satisfy child support was not in the best interests of the children and was of no benefit to them. Therefore, the Agreement was void as to the child support issue and the transfer of the property did not apply to the child support owed. The general magistrate concluded that child support was due and owing from December 2007 through October 2009, which totaled $48,098.06. The former husband had paid only $12,297 for child support leaving an arrearage of $35,801.06, which the general magistrate found he still owed for child support.

The former husband filed a Notice of Exceptions to the General Magistrate’s Report arguing that although parents cannot contract away a child’s right to support, the evidence established only that the former husband prepaid his child support obligation and that the general magistrate’s conclusion provided the former wife with a windfall. The former wife responded that the general magistrate enforced the original decree on child support and chose not to ratify the child support provisions in the Agreement. After a hearing, the trial court entered its order denying the exception's argued by the former husband, finding no abuse of discretion in the general magistrate’s finding that the Agreement was not in the best interests of the children, and ratifying the general magistrate’s report except as follows:

However, it would be fundamentally unfair that the Wife, on behalf of the minor children, would get a $30,000 windfall, and the Court finds a problem with the Magistrate limiting the credit to the Former Husband to the $12,000 exclusively. Accordingly, the Court grants the Exception on the limited issue of the credit for the Husband as to this child support issue.

The trial court then remanded the case to the general magistrate to revisit that issue, holding that the $12,000 was not correct or sufficient. The former wife filed this appeal arguing that the trial qourt abused its discretion in rejecting the general magistrate’s factual findings and ordering the general magistrate to reach new ones.

In Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999), the court held as to the trial court’s standard of review of a master or magistrate’s report:

It is clear that if one objects to a master’s report, the trial court has an obligation not merely to consider the findings and recommendation of the master but also to review the entire file. But the review is not intended to permit the trial court to make its independent finding of facts or to reach its independent conclusion as to the legal effect of such facts. The review of the entire record is to ascertain whether the master’s finding is supported by competent evidence and to see if the master’s conclusions pass the Canakaris[ ] test.

Id. at 50-51. In Reece v. Reece, 449 So.2d 1295 (Fla. 4th DCA 1984), this court held:

The findings of fact and conclusions drawn therefrom may not be rejected by the trial court in the absence of clear error. To put it another way, the role of the trial court in reviewing the findings and determinations of the master are similar to those of the appellate court in reviewing a trial court’s findings and determinations. This rule is subject to the observation that it is the trial judge “who under the law is charged with the duty and responsibility of making findings of facts and entering the final decree.” It is also recognized that the trial court may come to different legal conclusions than the master, based upon the master’s findings of fact, without committing reversible error.

Id. at 1295-96 (citations omitted). Citing Reece, this court held that “[w]hile the master’s report is clothed with a presumption of correctness as to its factual findings, the trial court may come to different legal conclusions than the master.” Kersh v. Kersh, 613 So.2d 585, 586 (Fla. 4th DCA 1993).

In Essex, the case relied upon by the general magistrate, the Third District held: “What does bear repeating is the long-standing and far more fundamental rule that a parent máy not by contract impair his or her obligation to support a minor child, and its corollary that only such contracts that are consistent with the best interests of the minor child will be enforced.” Essex, 503 So.2d at 1366 (citations omitted).

In Shellmyer v. Shellmyer, 418 So.2d 477 (Fla. 4th DCA 1982), after a judgment of dissolution ordered monthly child support payments by the father, the parents entered into an out-of-court lump sum settlement under which the father conveyed his equity interest in the former marital residence to the mother in lieu of past and future periodic child support. The mother returned to court, claiming that their agreement was forbidden “because the basic right of a minor child to support cannot be affected by an agreement between the parties.” Id. at 477. When the trial court ruled on the mother’s motion, it ordered that the father resume paying child support as well as his arrearages. However, the trial court did not give the father any credit for his interest in the marital residence which he had transferred to the mother. On appeal, this court held that the parties should be returned to the original status quo. The father was to resume paying child support from the date of its cessation, but he would get credit for the arrearages against the value of his equity interest in the marital home.

The trial court properly ratified the general magistrate’s conclusion that the contract entered into by the former husband and former wife was against the children’s best interests and, therefore, was void as to the child support provision, leaving the equitable distribution settlement in effect. However, we disagree with the trial court’s determination that the credit awarded to the former husband was unfair and must be revisited by the general magistrate to make new findings of fact. The general magistrate’s findings are supported by the record and she did not abuse her discretion in assessing the credit to be received by the former husband. We reverse and remand for ratification of the general magistrate’s report.

Reversed and Remanded.

POLEN and CIKLIN, JJ., concur.

      . Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).


author: PER CURIAM.

text:
    Deidre THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2885.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Deidre D. Thomas, Vero Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court denied appellant’s postconviction motion following this court’s remand in Thomas v. State, 997 So.2d 526 (Fla. 4th DCA 2009). We disagree with the trial court’s purely legal conclusion that trial counsel acted reasonably in relying on information on a non-official Bro-ward Sheriffs Office webpage and refusing to investigate the client’s allegation of a violation of the speedy trial rule. The webpage upon which counsel and the court relied expressly disclaims: “The information on this web site should not be relied upon for any type of legal action.” In relying exclusively on the Broward Sheriffs Office webpage, trial counsel failed to attempt to obtain any of the underlying source documents, such as the Short Arrest Information Form, Magistrate’s Probable Cause Order or the Booking Report, all of which would have corroborated appellant’s claim that she had been arrested in Broward County based on the subject Indian River County charge — an arrest which took place 223 days before the information was filed. Appellant established conclusively that she was entitled to discharge based on a violation of the speedy trial rule and that the State was not entitled to a recapture window. See Trout v. State, 927 So.2d 1052 (Fla. 4th DCA 2006); Dumas v. State, 877 So.2d 941 (Fla. 4th DCA 2004); Trainer v. Broome, 666 So.2d 1019 (Fla. 4th DCA 1996).

Accordingly, we hold that in this case, counsel performed deficiently in failing to investigate and obtain available official-record information that his client told him existed and would prove she was entitled to discharge. Appellant’s claim is not speculative. Because the State was not entitled to a recapture period as a matter of law, she demonstrates prejudice.

We reverse and remand. The trial court shall vacate appellant’s conviction in this case.

Reversed and remanded.

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    Yaakov VANN, Appellant, v. Sue M. ANDRON, Appellee.
    No. 4D09-4215.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Yaakov Vann, Boca Raton, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Weisz ex rel. Weisz v. Clair, 989 So.2d 667 (Fla. 4th DCA 2008).

HAZOURI, MAY and CIKLIN, JJ, concur.


author: TAYLOR, J.

text:
    Corey Jermaine POTTS, Appellant, v. State of FLORIDA, Appellee.
    No. 4D09-4820.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Corey Jermaine Potts appeals his conviction and sentence for burglary of a dwelling. He argues that the trial court reversibly erred in allowing the fingerprint examiner to testify that his identification was verified by another examiner from a different police department, thereby bolstering his testimony. We agree and reverse for a new trial. We disagree, however, that the trial court erred in denying his motion for judgment of acquittal.

At trial, Jacquemond Dieujuste testified that he left his home around 7:00 or 7:30 a.m. on November 10, 2008 and returned at about 10:15 a.m. after receiving a call from his sister that everything in the house was “tipped over.” He found the house in disarray. Bedrooms, which had been locked, were unlocked, and a plasma TV and new laptop were taken. Overall, about $14,000 tp $15,000 in items were missing.

Police who responded to the burglary examined the outside of the home and found a bedroom window which had been broken from the outside. Also, the lock had been pried off a sliding glass door in the kitchen. This was determined to be the actual, point of entry into the home. A crime scene investigator was able to lift a fingerprint from the inside glass of the broken bedroom window. Its placement was consistent with someone reaching in and curling his fingers around the glass. The print was identified by the fingerprint examiner, Sergeant Thomas Tustin, as belonging to the defendant. .

Dieujuste testified that he did not know the defendant. He did not give the defendant permission to be in his house on November 10, 2008 or at any other time, and there was no reason the defendant’s fingerprint should be in his house.

Sergeant Tustin testified that his fingerprint examination revealed that the fingerprint lifted from the broken window belonged to the defendant. Over defense counsel’s objection, Sergeant Tustin testified that his findings had been verified by another examiner from a different agency. He added, “we wouldn’t be here if he didn’t verify it.” During closing argument, the state referred to Sergeant Tustin’s testimony about a second expert verifying his fingerprint identification.

After the state rested, the defendant moved for a judgment of acquittal on the burglary count. He argued that the state failed to make a prima facie case that the defendant was the person who entered the residence to commit the theft. According to the defendant, the state did not prove when the fingerprint was left on the broken window or establish when the window was broken. The defendant renewed his motion after both sides rested.

The jury found the defendant guilty of burglary of a dwelling. The trial court sentenced him to twelve years in prison with 129 days credit for time served.

The defendant correctly argues that the trial court erred in permitting the fingerprint examiner to bolster his testimony by referring to the verification of his test results by another, non-testifying expert. See Telfort v. State, 978 So.2d 225, 226-27 (Fla. 4th DCA 2008). In Telfort, the fingerprint examiner testified on direct about the level of certainty as to the fingerprint match to the defendant: “ ‘There is no doubt that this is Mr. Telfort’s fingerprint. In latent fingerprints, our department has provisions that another examiner must also view your work to verify the identification is actually one and the same. This print has been compared by two other examiners identifying Mr. Tel-fort’s left index finger.’ ” Id. at 226 (emphasis in original). We held it was error to allow this testimony over the defendant’s objection. Id. at 227. We reached the same result in Bunche v. State, 5 So.3d 38 (Fla. 4th DCA 2009).

We reject the state’s contention that the erroneous admission of Sergeant Tustin’s testimony regarding confirmation of his identification by a second examiner was harmless error because the defense did not object to the witness’s earlier reference to a second examiner. We disagree that this testimony was merely cumulative. The officer’s assertion that “we wouldn’t be here if he didn’t verify it” converted his earlier answer from a mere inference that a second identification was made to a certainty that it was.

Further, during closing, the state compounded the error by commenting on Sergeant Tustin’s testimony about verification by a second person:

[STATE]: But you know even Sergeant Tuskin talked about you know when [defense counsel] was questioning him about whether or not you know things happen when it comes to fingerprint identification, and the fact that it is left up to the person who’s examining them.
First and foremost, he admitted that it happened. He admitted that he was familiar with that. But he also talked about the fact from questioning from [defense counsel] that there was a second party evaluation that takes place with any match. And he also said on [defense counsel’s] questioning that “we wouldn’t be here right now if that person disagreed.”

We conclude, however, that the trial court did not err in denying the defendant’s motion for judgment of acquittal. The state presented evidence from the owner of the home that he did not know the defendant and that he never gave the defendant permission to enter his home. In addition, the state presented testimony that the defendant’s fingerprint was found on the inside of the broken bedroom window of the private residence, which provided sufficient evidence for the trial court to submit the case to the jury. See Walker v. State, 656 So.2d 950 (Fla. 5th DCA 1995) (finding defendant’s fingerprint, found on windowsill of backyard window leading into bedroom, sufficient to support burglary conviction); Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982) (holding that evidence that the object on which defendant’s fingerprints were found was located in a place inaccessible to the public established the defendant’s identity as the perpetrator of the restaurant robbery and was legally sufficient for the defendant’s conviction); Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972) (holding that where rape occurred at victim’s house and defendant had never been there before, evidence that fingerprints and palm prints found at scene of crime matched defendant’s prints was sufficient to sustain defendant’s conviction of rape).

Reversed And Remanded For New Trial.

GROSS, C.J. and HAZOURI, J., concur.


text:
    Darris KITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5202.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Darris Kitt, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order denying postconviction relief as to ground one of appellant’s motion, in that in its trial response the state conceded a need for an evidentiary hearing for the proper resolution of appellant’s claim that his attorney never advised him of a plea offer. As to the remaining grounds, we affirm.

Reversed and remanded for an eviden-tiary hearing.

GROSS, C.J., WARNER and DAMOORGIAN, JJ., concur.


text:
    Michael J. ALLEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-154.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Michael J. Allen, Jr., Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael J. Allen, Jr., appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence. In his motion, Allen alleged that, following his plea, he was awarded credit for 297 days time served in the Palm Beach County jail at the Gun Club and Stockade facilities and that it was apparent from the face of his “court and jail records” that he was entitled to credit for an additional 165 days of credit for time served between May 1, 2008 and August 6, 2009. The trial court summarily denied the motion, referencing a handwritten notation on the plea sheet to the effect that “defendant agrees credit is correct.” We reverse.

Allen’s motion was facially sufficient. See Phillips v. State, 839 So.2d 893, 894 (Fla. 4th DCA 2003); see also Warren v. State, 980 So.2d 1204, 1205 (Fla. 4th DCA 2008). “An order denying a facially sufficient rule 3.800(a) motion should include not only ‘valid reasons for the denial by the trial court, but also attachments of portions of the record sufficient to support the denial.’ ” Macool v. State, 7 So.3d 637, 637 (Fla. 5th DCA 2009) (quoting Brown v. State, 816 So.2d 1142, 1143 (Fla. 5th DCA 2002)); see also Linder v. State, 54 So.3d 1031 (Fla. 4th DCA 2011). The trial court failed to attach the referenced plea sheet to the order of denial. And, even if the plea sheet had been attached, it would have been insufficient to establish Allen knowingly and intelligently waived his entitlement to the additional credit. See Howard v. State, 40 So.3d 46, 47 (Fla. 4th DCA 2010) (“A stipulation as to a specific amount of credit is not sufficient to demonstrate that a defendant knowingly and intelligently waived credit to which he otherwise would be entitled ‘in the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right.’”) (quoting Velasquez v. State, 11 So.3d 979, 980 (Fla. 1st DCA 2009)); see also Giggetts v. State, 5 So.3d 756, 757 (Fla. 1st DCA 2009).

Reversed, and Remanded.

GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Glenn FORD.
    No. 2010-KP-1151.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   JOHNSON, J.

would grant this writ application, for the following reasons.

| ,In 1985, a Caddo Parish jury found relator guilty of first degree murder and sentenced him to death. In this current writ application, relator argued multiple claims of ineffective assistance of counsel, i.e., that trial counsel lacked sufficient experience to mount an adequate defense. Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair, and the verdict suspect.

Relator was represented at trial by two appointed attorneys, Wm. Paul Lawrence and Kim LaVigne. Neither attorney possessed significant criminal defense 12experience before representing relator. Lawrence had been admitted to practice law in Louisiana for seven years, but practiced in the area of oil and gas, and had never tried a single case, civil or criminal, before a jury.

Ms. LaVigne had never tried a jury case before her appointment. She had met with defendant once, at a motion hearing, and did not recall having a face-to-face meeting with him again before the penalty phase of his trial. Ms. LaVigne had absolutely no experience in criminal defense work, and admitted that she did not know how to conduct an investigation or find and prepare mitigation witnesses for the penalty phase of the trial.

While a review of the record demonstrated evidence legally sufficient to sustain defendant’s conviction for first degree murder at the guilty phase of the trial, the same cannot be said for the penalty phase. A defendant at the penalty phase of a capital trial is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life. State v. Fuller, 454 So.2d 119, 124 (La.1984); State v. Berry, 430 So.2d 1005, 1007 (La.1983); State v. Myles, 389 So.2d 12, 28 (La.1980) (on reh’g). The role of an attorney at a capital sentencing proceeding resembles his role at trial in that he must “ensure that the adversarial testing process works to produce a just result....” Burger v. Kemp, 483 U.S. 776, 788-89, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 (1987). When a defendant challenges the effectiveness of his counsel at the penalty phase, the Court must determine whether there is a reasonable probability that, absent counsel’s errors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. State v. Sanders, 93-0001, pp. 25-26 (La.11/30/94), 648 So.2d 1272, 1291 (La.1994).

| sThis Court has set out the appropriate analysis for evaluating claims of ineffective assistance at the penalty phase of a capital trial when the claimed omissions of counsel concern potential mitigating evidence. Under that analysis, the Court:

must first determine whether a reasonable investigation would have uncovered mitigating evidence. If such evidence existed, then we must consider whether counsel had a tactical reason for failing to put the evidence before the jury. If the failure to present mitigating evidence was not a tactical decision but reflects failure by counsel to adequately advocate for his client’s cause, defendant must still have suffered actual prejudice before relief will be granted.

State v. Hamilton, 92-2639, p. 6 (La.7/1/97), 699 So.2d 29, 32 (citing State v. Brooks, 94-2438 (La.10/15/95), 661 So.2d 1333; State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272).

Given what Ms. LaVigne perceived as the unavailability of any funding for investigation beyond the $500.00 already allocated by the court which the defense had used at the guilt phase, she made little effort to conduct any investigation into relator’s upbringing in California. At the post-conviction hearing, penalty phase counsel, Ms. LaVigne, having absolutely no experience in criminal defense, discussed her unfamiliarity with presenting a case in mitigation as follows:

You know, I just didn’t know how to do that. I had never done that before. The work I had done up to that point was just, you know, when did you step on your brake, you know. Was the light red or green? How did you feel at the time of impact? And it was more of a factual presentation of information. And I had just never done anything like this where you are trying to create a picture of someone.

Ultimately, with the exception of relator’s father, Ms. LaVigne failed to secure the presence of any witnesses who had known relator before he moved to Shreveport in 1980, and the witnesses presented on behalf of the defense did little to make him |4appear sympathetic for the jury. Ms. LaVigne presumed that relator’s father would be her best witness, but his testimony revealed that he did not participate in relator’s upbringing and had little contact with him since he grew up in California and was raised by his grandparents; thus, his father did not present the kind of emotional plea Ms. LaVigne had expected. Moreover, Ms. LaVigne stated that by the end of his testimony, the positive information relator’s father provided about relator was cancelled out by the negative.

Ms. LaVigne’s complete unfamiliarity with capital litigation and her lack of experience in presenting a mitigation case resulted in a breakdown of the adversarial process which rendered the death penalty unreliable. Except for relator’s father, from whom he had been largely estranged most of his life, counsel not only failed to present any witnesses who had known relator for much more than three years before the crime, but also, failed to have prepared them to testify at the sentencing hearing of a capital case.

Given her failure to investigate and/or prepare witnesses, relator has demonstrated that trial counsel failed the task of “acting as a diligent, conscientious advocate for [relator’s] life.” State v. Sanders, 93-0001, p. 25 (La.11/30/94), 648 So.2d 1272, 1291. Because of this deficient performance by defense counsel, defendant suffered actual prejudice.

I would affirm the conviction, and remand for re-sentencing.


author: PER CURIAM. KNOLL, J., WEIMER, J.,

text:
    STATE of Louisiana v. Bobby Ray INGRAM, III.
    No. 2010-K-2274.
    Supreme Court of Louisiana.
    March 25, 2011.
   PER CURIAM.

hThe state charged defendant by grand jury indictment with second degree murder in violation of La.R.S. 14:30.1, after he shot his ex-wife, Kimberly Ingram, in his home on October 18, 2006. Defendant had three children with Kimberly, and they had been married for 14 years before the marriage dissolved and they divorced. At the time of the shooting, defendant was married to Nancy Ingram, who was in the home at the time of the fatal confrontation between defendant and his ex-wife. After trial by jury, defendant was convicted of manslaughter in violation of La.R.S. 14:31. The trial court sentenced him to 28 years’ imprisonment at hard labor. Defendant appealed his conviction and sentence to the Second Circuit, urging several assignments of error. However, the court of appeal addressed only a single issue: whether the trial court erred in summarily denying defendant’s motion for a new trial based in part on allegations of juror misconduct occurring during the jury’s deliberation. State v. Ingram, 45,546 (La.App. 2nd Cir.9/22/10), 47 So.3d 1127. The court of appeal set aside that ruling pand ordered án evidentiary hearing on the issue. The state sought review of that decision in this Court and for the reasons that follow, we reverse and remand the case to the court of appeal for consideration of defendant’s remaining assignments of error. The fatal confrontation between defendant and his ecx-wife brought to an end a contentious relationship involving disputes over custodial exchanges, property, and financial matters, that followed dissolution of the marriage. The relationship with his ex-wife had deteriorated so badly that defendant erected a fence around his home, and by arrangement, Kimberly Ingram picked the children up while parked outside of the gate. On the day of the shooting, defendant and Kimberly had quarreled over.the telephone in an argument precipitated by defendant’s receipt of Kimberly’s demands to settle remaining aspects of the community property division left open at the time of their divorce. Defendant ignored Kimberly’s repeated return calls, which were eventually answered by Nancy Ingram. The two women had words, and the dispute continued when Kimberly arrived at the house to wait at the gate for her oldest son to come home by school bus. The women first exchanged words over their phones, and then, after Kimberly challenged Nancy to come out so she could “beat her ass,” and Nancy responded, “Whatever,” defendant’s ex-wife drove through the unlocked gate and up the long driveway to the house.

The give and take of threats and curses between the two women continued at the front of the house through a storm door to the main entrance which Nancy Ingram had cracked open a few inches. Words eventually escalated into physical violence when Nancy turned to see whether defendant had called the police. Kimberly pushed open the door and pounced on Nancy Ingram, driving her to the floor as she fell on top of her. Kimberly began pulling on Nancy’s hah- while |sNancy struggled beneath her. In the meantime, defendant, who had called 911 from the kitchen when he first heard a crash at the door and the scream of his wife, grabbed his high-powered deer hunting rifle and raced to the women sprawled on the floor by the front door. Defendant testified that he approached his ex-wife with the rifle at his hip and grabbed Kimberly by her hair to pull her off of Nancy. Kimberly turned in his direction and lunged at him. Defendant pulled back and fired a single shot from what one of the investigating officers described as a “big game rifle.” The bullet tore through Kimberly’s right arm and struck her in the chest, killing her. The defense went to the jury on the theory that the law entitled defendant to meet force with force in defense of his home, his wife, and himself, against the uninvited and unauthorized entry by Kimberly. The trial court charged jurors with respect to the legal principles underpinning that defense at the close of the evidence, instructing them in accord with La.R.S. 14:20(A)(4)(a), that “[a] homicide is justifiable if the defendant was lawfully inside a dwelling and killed a person who made or was attempting to make an unlawful entry into the dwelling and the defendant reasonably believed that the use of deadly force was necessary to prevent the entry or to compel the intruder to leave the premises.”

Following the jury’s verdict of manslaughter, which both sides argued against in their closing remarks, defendant filed a motion for a new trial based in part on an affidavit executed by the jury foreman regarding the course of jury deliberations. The foreman generally expressed concerns about certain aspects of the deliberations but specifically focused on a juror identified by the court of appeal in its decision as Juror No. 8. The affidavit stated that during recesses as the trial proceeded, Juror No. 8 had informed other jurors on the panel that she suspected her boyfriend was having an affair and was taking advantage of her |4service on the jury .to visit his paramour. Acting on her suspicions, Juror No. 8 had armed herself with a baseball bat over a noon lunch recess during the evidentiary portions of the trial and “made an unauthorized entry into the house of the alleged paramour.” She found her boyfriend in bed with the woman. Juror No. 8 told the woman to remain still and listen to her. She also informed her boyfriend that she would deal with him later. The confrontation apparently ended at that point. The jury foreman further explained in his affidavit that Juror No. 8 “acknowledged to him and others that she had placed herself in the same position as Kimberly Ingram, as both had entered homes without authority.” Finally, the foreman alleged that the incident allowed the other jurors to have “the benefit of a ‘recreation’ of the crime, and more importantly, allowed them to use this evidence in its deliberation to compare the juror’s position at the house she entered to that of Kim Ingram; ie., the juror lived; Ms. Ingram did not.”

In arguing his motion, defense counsel addressed the potential impact the information provided by Juror No. 8 may have had on the jury as a whole and the likelihood that it would have caused other jurors to consider whether, by accepting defendant’s claim of justification, they wopld be “criticizing this juror for what she’s done.” Counsel also focused on the impact the incident may have had on Juror No. 8 herself, and how it may have impaired defendant’s “unquestioned right to twelve non-partial jurors.” At the same time, counsel conceded that “we shouldn’t be able to call witnesses and question them about how they ultimately went through the deliberative process.” Counsel’s goal therefore was simply to question jurors with respect to what “did you learn about this, did this occur, was it brought to your attention during the jury process.”

IsThe trial court denied the motion without conducting a hearing on the claim. The tidal court assumed for purposes of ruling on the motion that the allegations in the foreman’s affidavit were true, although the prosecutor would not subscribe to that view because “[tjhat’s not we had been reported as actually occurred.” The court found that as alleged in the affidavit, Juror No. 8 had simply “relayed a personal experience and not some extrinsic' facts that could be construed as an extraneous or an outside influence,” for purposes of Louisiana’s jury shield provisions in La.C.E. art. 606(B), which generally preclude inquiry into the course and conduct of a jury’s deliberations, but which make exceptions for cases in which “any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention.”

The court of appeal flatly disagreed with that assessment and remanded the case to the district court to conduct an evidentiary hearing on the allegations in the foreman’s affidavit. For the Second Circuit panel, the present case offered “a strikingly atypical” example of juror misconduct because “a juror allegedly committed a crime during the course of the trial, which crime was reminiscent of the facts of the case being tried,” and then related the incident to the rest of the jurors, thereby calling the jury’s fact-finding process into serious question. Ingram, 45,546 at 13, 47 So.3d at 1134. The panel therefore concluded that it was worth breaching the jury shield rule of La.C.E. art 606(B) to establish the full facts of the incident and the extent to which it became the focus of attention during deliberations, although ultimately defendant might not be entitled to any relief, because the costs of conducting such a hearing appeared far less than the costs to public confidence in the criminal justice system if the hearing were not conducted. Id., 45,546 at 13-14, 47 So.3d at 1134 (“Because this is such a novel situation and because Ingram clearly may have been prejudiced by the conduct of Juror No. 8 if the'allegations are determined to be true, the most cautious and reasonable course of action by the trial court would have been to hold an evidentiary hearing to determine what happened with Juror No. 8 and the other jurors.... [T]o proceed without considering this issue is the sort of thing that serves to undermine the public’s confidence in the criminal justice system.”). At the same time, the court of appeal did not address the scope of the evidentiary hearing it ordered. In fact, the defense proffer submitted at the hearing on the motion for a new trial listed only a single juror that the defense had intended to. call at the hearing, Juror No. 8, whom counsel identified by name.

As a general rule, “[j]urors are not expected to come into the jury box and leave behind all that their human experience has taught them.” Beck v. Alabama, 447 U.S. 625, 642, 100 S.Ct. 2382, 2392, 65 L.Ed.2d 392 (1980)(internal quotation marks and citation omitted). Individual jurors “bring to their deliberations qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” McCleskey v. Kemp, 481 U.S. 279, 311, 107 S.Ct. 1756, 1777, 95 L.Ed.2d 262 (1987)(in-ternal quotation marks and citation omitted). For the most part, how jurors may draw on their experience in the deliberative process remains shielded from view and therefore largely unknowable. Louisiana subscribes to the common law rule, incorporated in La.C.E. art. 606(B), that jurors may not impeach their verdict by evidence of their own misconduct. The rule incorporates important systemic values, including the finality of judgments, and allows only the narrow exceptions for outside influences or extraneous prejudicial information. See Tanner v. United States, 483 U.S. 107, 119, 107 S.Ct. 2739, 2747, 97 L.Ed.2d 90 (1987)(tracing Fed. R.Evid. 606(b), progenitor of La.C.E. art. 606(B), back to its origins in the common law and finding that nothing in the rule appeared inconsistent with the Sixth Amendment guarantee of a fair and impartial jury, observing that “[substantial policy considerations support the common-law rule against the admission of jury testimony to impeach a verdict.... The Court’s holdings requiring an evidentiary hearing where extrinsic influence or relationships have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in insulating the jury’s deliberative process.”). As the trial court in the present case was keenly aware, jurors' generally remain free to share what their experience and knowledge has taught them, even in situations similar to the circumstances of the crime for which they are empaneled, without calling into question, the validity of their verdict. See, e.g., State v. Sanders, 33,778, pp. 4-5 (La.App.2d Cir.10/4/00), 769 So.2d 183, 187 (in trial for a drive-by shooting in which the victim lost his spleen, jury foreman remained free to discuss his personal experience as the victim of a drive-by shooting and conveyed information gleaned from his wife, a nurse, about the difficulties of living without a spleen).

However, in exceptional cases, jurors themselves may be the source of extraneous prejudicial outside information as well as third parties. See, e.g., Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir.1997)(“When a juror communicates objective extrinsic facts regarding the defendant or the alleged crimes to other jurors, the juror becomes an unsworn witness within the meaning of the Confrontation Clause.... That the unsworn testimony comes from a juror rather than a court official does not diminish the scope of a defendant’s rights under the Sixth Amendment.”); United States v. Swinton, 75 F.3d 374, 381 (8th Cir.1996)(“[T]he inquiry is not whether the jurors ‘became witnesses’ in the sense that they discussed any matters not of record but whether they discussed specific extra-record facts relating to the defendant, and if they did, whether there was a significant possibility that the defendant was prejudiced thereby.”)(internal quotation marks and citation omitted).

In one such case, State v. Graham, 422 So.2d 123, 131 (La.1982), this Court observed that Louisiana’s jury shield rule [then former La.R.S. 15:470] “must yield and ... our courts are required to take evidence upon well pleaded allegations of prejudicial juror misconduct violating an accused’s constitutional right to due process, to confront and cross-examine witnesses or to a trial by a fair and impartial jury and to set aside the verdict and order a new trial upon showing that a constitutional violation occurred and that a reasonable possibility of prejudice exists.” Graham involved an experiment in blood coagulation conducted by two jurors during a break in the trial of the defendant for second degree murder as a means of testing the opinion testimony offered by a state’s expert regarding blood spatters found on defendant’s clothing and how and when they may have originated. The experiment potentially impacted the defendant’s right to confront and cross-examine the witnesses against him and invited jurors to go beyond the record evidence introduced at trial in reaching a decision.

Nevertheless, this Court ultimately determined that because the experiment did not “represent a radical departure from our expectations that a juror will employ his own ordinary experience in the deliberation,” and thus, “did not involve jurors conducting tests of matters beyond their normal ken or going outside the jury room to obtain esoteric knowledge or special information pertaining directly to the case,” there was no “reasonable possibility that the jurors’ | f,experiment contributed decisively to the guilty verdict.” Graham, 422 So.2d at 132-33. We thereby considered “the magnitude of the juror’s deviation from his proper role, the. degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict.” Id., 422 So.2d at 132. We also conducted the analysis on an entirely objective basis. Id. (“Because the accused is not required to show actual prejudice, the , state may legitimately invoke the prohibition of [former] R.S. 15:470 to bar inquiry into the mental processes of an individual juror.”).

In the present case, as in Graham, the conduct at issue occurred during trial, and, as the defense emphasized below, at a time when voir dire examination of the juror could not have revealed a potential source of bias or interest in the case. Nevertheless, the court of appeal erred in ordering an evidentiary hearing for two reasons. First, the trial court had before it a detailed affidavit by the jury foreman setting forth the information conveyed by Juror No. 8 with respect to the confrontation with her wayward boyfriend after the unauthorized entry of the paramour’s home. Although the prosecutor did not subscribe to that version of the event, the trial court assumed for purposes of ruling on the defense motion that the factual circumstances of the confrontation were as Juror No. 8 alleged them. Thus, it remains unlikely that the testimony of Juror No. 8, or any of the other jurors on the panel, including the foreman,. could substantially add to the factual basis for the new trial claim, and, as Graham makes clear, and as defense counsel conceded in arguing his motion, no juror on the panel could testify as to the actual impact of that information on the deliberations, ie., that jurors considered the incident a recreation of the crime charged against defendant and allowed them to |incompare the respective positions of Juror No. 8 and Kimberly Ingram and their respective fates, that one woman died while the other woman lived, in reaching their verdict.

Second, the trial court correctly ruled that even as alleged, the conduct of Juror No. 8 did not give rise to a reasonable possibility that the information she conveyed contributed significantly to the jury’s verdict. Reasonable jurors would not have understood Juror No.’s conduct as an attempt to recreate the crime charged against defendant, as she had clearly acted on her own impulses in her own private life. Thus, unlike the situation in Graham, the juror’s conduct did not represent an experiment in an attempt to test evidentiary propositions put at issue during the trial and did not implicate defendant’s Sixth Amendment right of confrontation and cross-examination, or invite the other jurors to look beyond the evidence presented at trial for evidence on which to base their verdict. Nor did her information convey extra-record facts about defendant which might have prejudiced him, or touch upon esoteric matters beyond the ken of the other jurors’ common understanding and experience. In assessing whether defendant had been entitled to meet “force with force,” as a matter of home defense, reasonable jurors might well consider that Juror No. 8 emerged unscathed after arming herself for trouble and entering the home presumably of a stranger, while Kimberly Ingram died unarmed in her former marital domicile she had shared with defendant in the course of a 14-year marriage. On the other hand, although Juror No. 8 had armed herself with a baseball bat that could have been used as a dangerous weapon, she did not, by her own accounting, lose her self-control and attack' either her erring boyfriend or his paramour, unlike Kimberly Ingram, who, according to Nancy Ingram and |n defendant, lost all self-control, became the aggressor, and physically attacked defendant’s current wife in the cumulating event of a long simmering conflict with her ex-husband fueled, at least in defendant’s opinion, by her jealousy of Nancy Ingram. If anything, Juror No. 8’s personal experience shared with jurors focused attention on the evidence offered at trial, and on the critical question posed by the defense of the case, whether the conduct of Kimberly Ingram after she crossed the threshold of defendant’s home gave rise to a reasonable belief “that the use of deadly force [was] necessary to prevent the entry or to compel the intruder to leave the premises....” La.R.S. 14:20(A)(4)(a). To this extent, communication of Juror No. 8’s personal experience to the other jurors did not implicate the fundamental fairness of the trial or undermine confidence in a verdict that neither 'the state nor defense, wanted, but which accounted for the origins of the incident in the fallout of a failed marriage.

As for the impact of the incident on Juror No. 8 herself, the defense argued below that- the juror would inevitably identify with Kimberly Ingram, rendering her unable to consider impartially the defense offered at trial, and that her experience had. thereby deprived defendant of his right to trial by 12 impartial jurors, an error not rendered harmless by the jury’s non-unanimous 10-2 verdict because the influence of Juror No. S’s partiality, as revealed by her dissenting vote along with the jury foreman, on the course of deliberations is essentially unknowable. See Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 471, 17 L.Ed.2d 420 (1966)(Oregon, as does Louisiana, may allow 10/2 jury verdicts, but bailiffs prejudicial comments to two jurors were not harmless although 10 jurors voted to convict and did not hear the comments because “petitioner was entitled to |]2be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.”)(citing State v. Murray, 164 La. 883, 888, 114 So. 721, 723 (1927)).

Defendant’s argument relies heavily on the decision in Brooks v. Dretke, 418 F.3d 430 (5th Cir.2005), in which a juror in a capital case, just as the penalty phase was about to begin, was arrested as he entered the courthouse with a gun. The arrest was not revealed to the other jurors but was disclosed to the trial judge, who questioned the juror and obtained his assurances that the arrest would not impair his ability to render a fair and impartial sentencing verdict. Those responses satisfied the trial judge and the juror remained seated on the jury panel, which returned a sentence of death. After exhausting his state direct appeal and post-conviction remedies, defendant sought federal habeas corpus relief. The Fifth Circuit ultimately reversed the judgment of the district court denying federal habeas and remanded with instructions on grounds that the compromising position the juror had found himself in for the remainder of trial, ie., he faced the state responsible for deciding whether to prosecute him for the firearms offense, supported a finding of implied bias and required setting aside the sentence. Brooks, 418 F.3d at 435.

However, in the present case, defendant makes no claim that Juror No. 8 had been arrested following her unauthorized entry and thus faced an actual conflict of her duties as a juror and her self interest in resolving her own difficulties with the state. In fact, Juror- No. 8’s responses during voir dire examination revealed more potent sources of potential bias that ultimately did not result in her exclusion from the jury panel. Out of the presence of other prospective jurors, Juror No. 8 acknowledged that previously she had been arrested and charged with felony theft. The case was resolved by her guilty plea to 1^misdemeanor theft and a sentence which included restitution. The prosecutor in that case was the same Assistant District Attorney who prosecuted defendant in the present case. Juror No. 8 stated that her prior difficulty with the law would not influence her decision one way or the other. With respect to the prosecutor, the juror stated that she had no hard feelings because she “regretted it myself’ and it “was just something ... that I paid for and that, that was it.”

In addition, Juror No. 8 confided that she had been in an abusive'domestic situation with the father of her five-year old daughter. Physical blows had been struck “on a regular basis,” the police had been called on several occasions, and her boyfriend had been arrested twice. Asked directly by defense counsel whether the experience would incline her to favor a wifé! over a husband in a situation arising from some kind of domestic dispute, Juror No. 8 stated that she “could be impartial .... I’m not going to tell you that it kind of wouldn’t just strike a nerve, but I believe I could still be impartial.” By accepting Juror No. 8 on the panel, both state and defense took at face value her assurances of impartiality, and her commitment to deciding the case on the evidence presented and the instructions of the trial court. Thus, neither side presumed that the juror’s prior experiences, particularly as the victim of repeated domestic violence, would decisively influence her verdict. In this context, we will not presume that the subsequent encounter of Juror No. 8 with her straying boyfriend and his paramour had any greater affect on her capacity to render a fair and impartial verdict according to the law and the evidence.

The decision of the court of appeal is therefore reversed, and this case is remanded for consideration of defendant’s remaining assignments of error argued on appeal.

DECISION OF COURT OF APPEAL REVERSED; CASE REMANDED.

KNOLL, J., dissents for reasons assigned by Justice Weimer.

WEIMER, J., dissents and assigns reasons.

KNOLL, J.,

dissents.

1,1 dissent for the reasons assigned by Justice Weimer.

WEIMER, J.,

dissents.

|,I respectfully dissent believing the court of appeal was correct in ordering a hearing in this unique and unprecedented case, which involves a juror advising fellow jurors about engaging in allegedly criminal conduct during the trial. The “jury shield statute,” LSA-C.E. art. 606(B), provides for an exception in criminal cases when “extraneous prejudicial information was improperly brought to the jury’s attention.”

The juror in this case was caught in a conflict between her duty as a juror and her self-interest which potentially compromised her ability to render a fair and impartial verdict in a proceeding brought by the district attorney, who could evaluate whether to charge her with one or more offenses. See Brooks v. Dretke, 418 F.3d 430 (5th Cir.2005). Accordingly, I would affirm the decision of the court of appeal to grant a hearing.

      . In Brooks, a juror in a capital case, just as the penalty phase was about to begin, was arrested for entering the courthouse with a handgun. The juror’s arrest was not revealed to the other jurors but was revealed to the trial judge, who questioned the juror and obtained his assurances that the arrest would in no way impair his ability to render a fair and impartial sentencing verdict. On the defendant’s subsequent application for federal ha-beas corpus relief from his conviction and sentence to death, the appellate court ultimately granted him relief on grounds that the compromising position the juror found himself in for the remainder of the trial supported a finding of implied bias and required setting aside the defendant’s conviction and sentence. Brooks, 418 F.3d at 435.


text:
    In re Larry E. PICHON.
    No. 2011-B-0280.
    Supreme Court of Louisiana.
    March 25, 2011.
   PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to provide competent representation to a client and neglected the client’s legal matter. 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 Larry E. Pichón, Louisiana Bar Roll number 19104, 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:
    Joe OLIVER, et al. v. MAGNOLIA CLINIC, et al.
    No. 2010-C-2766.
    Supreme Court of Louisiana.
    March 25, 2011.
   ORDER

Vacated and remanded. La. Const. Art. V, § 8(B) provides that a “majority of the judges sitting in a case must concur to render judgment.” The court of appeal’s decree does not reflect a majority judgment on the principal issues considered in the instant case.

Accordingly, IT IS ORDERED that, the ruling of the court of appeal is vacated. It is further ordered that this matter be considered en bane so that a decree can be rendered reflecting a majority vote on each of the issues presented.


text:
    Joe OLIVER, et al. v. MAGNOLIA CLINIC, et al.
    No. 2010-C-2782.
    Supreme Court of Louisiana.
    March 25, 2011.
   ORDER

Vacated and remanded. La. Const. Art. V, § 8(B) provides that a “majority of the judges sitting in a case must concur to render judgment.” The court of appeal’s decree does not reflect a majority judgment on the principal issues considered in the instant case.

Accordingly, IT IS ORDERED that, the ruling of the court of appeal is vacated. It is further ordered that this matter be considered en banc so that a decree can be rendered reflecting a majority vote on each of the issues presented.


text:
    Joe OLIVER, et al. v. MAGNOLIA CLINIC, et al.
    No. 2010-C-2785.
    Supreme Court of Louisiana.
    March 25, 2011.
   ORDER

Vacated and remanded. La. Const. Art. V, § 8(B) provides that a “majority of the judges sitting in a case must concur to render judgment.” The court of appeal’s decree does not reflect a majority judgment on the principal issues considered in the instant case.

Accordingly, IT IS ORDERED that, the ruling of the court of appeal is vacated. It is further ordered that this matter be considered en banc so that a decree can be rendered reflecting a majority vote on each of the issues presented.


text:
    STATE ex rel. Donald HENSLEY v. STATE of Louisiana.
    No. 2009-KH-1857.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Hensley, Donald; —Plaintiff; Applying for Motion to Enforce this Court’s Order, dated August 14, 2009; Parish of Jefferson, 24th Judicial District Court, Div. J, No. 02-3060.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. John W. SIMMONS v. STATE of Louisiana.
    No. 2009-KH-2510.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Simmons, John W.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 286-384.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Jermaine E. FAVORS.
    No. 2010-KO-1761.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Favors, Jermaine E.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 07-6079; to the Court of Appeal, Fifth Circuit, No. 09-KA-1034.

Denied.


text:
    STATE of Louisiana v. Stephen H. McMILLAN.
    No. 2010-K-1779.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re McMillan, Stephen H.; —-Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. G, Nos. 15172, 15712,; to the Court of Appeal, First Circuit, No. 2009 KA 2094.

Denied.


text:
    STATE of Louisiana v. Adam J. BLAZIO.
    No. 2010-K-1781.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Blazio, Adam J.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 05-2330; to the Court of Appeal, Fifth Circuit, No. 09-KA-851.

Denied.


text:
    STATE of Louisiana v. Luella L. JACKSON.
    No. 2010-K-1808.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Jackson, Luella L.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, Shreveport City Court, No. 9K025957; to the Court of Appeal, Second Circuit, No. 45,690-KW.

Denied.


text:
    STATE of Louisiana v. Chester L. REDMOND, III.
    No. 2010-KO-1829.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Redmond III, Chester L.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 24714; to the Court of Appeal., First Circuit, No. 2010 KA 0072.

Denied.


text:
    STATE of Louisiana v. Frank GEISLER.
    No. 2010-OK-1833.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Geisler, Frank; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 5-02-11; to the Court of Appeal, First Circuit, No. 2010 KW 0636.

Denied.


text:
    STATE of Louisiana v. Devin Deon COLLINS.
    No. 2010-K-1893.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Collins, Devin Deon; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 07-07-0689; to the Court of Appeal, First Circuit, No. 2009 KA 2102.

Denied.


text:
    Carrie FERRARA, John Ferrara, and Joann Ferrara Lonero v. STARMED STAFFING, LP. and L. Waldell, R.N.
    No. 2010-C-2484.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Staffing LP. et al. Starmed; Wal-dell R.N., L.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2002-12571; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0589.

Denied.

GUIDRY and CLARK, JJ., would grant.


text:
    Lola Gibbs GROSJEAN v. Robert E. GROSJEAN And Palmetto Farms, L.L.C. formerly known as Palmetto Farms, an Ordinary Partnership.
    No. 2010-C-2623.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Palmetto Farms L.L.C. f/k/a; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Bossier, 26th Judicial District Court Div. E, No. 124,502; to the Court of Appeal, Second Circuit, No. 45,529-CA.

Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Terry ZAPF.
    No. 2010-KK-2700.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Zapf, Terry; —Defendant; Applying For, Parish of Livingston, 21st Judicial District Court Div. D, Nos. 21673, 21674; to the Court of Appeal, First Circuit, No. 2010 KW 1296.

Denied.


text:
    Julius SELLERS, Jr. et al. v. EL PASO INDUSTRIAL ENERGY, LP, et al.
    No. 2010-CC-2702.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Sellers Jr., Julius et al.; —Plaintiff; Applying For Supei-visory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 63,203; to the Court of Appeal, Fifth Circuit, No. 10-C-824.

Denied.


text:
    STATE of Louisiana v. Alton DENSON.
    No. 2010-KK-2712.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Denson, Alton; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 494-266; to the Court of Appeal, Fourth Circuit, No. 2010-K-1105.

Denied.


text:
    STATE of Louisiana v. Tony GREEN.
    No. 2010-KK-2715.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Green, Tony; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 333-943; to the Court of Appeal, Fourth Circuit, No. 2010-K-1496.

On the showing made, the Petition for Writ of Review or Certiorari filed by the defendant is denied.


text:
    Keith BOURGEOIS and Melton Wilson v. LOUISIANA STATE RACING COMMISSION.
    No. 2010-C-2717.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Bourgeois, Keith et al.; Wilson, Melton; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 2009-7444; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0573.

Denied.


text:
    Betty Casborn, Wife of/and Adam CASBORN v. William CURRAN, M.D. and Northshore Regional Medical Center.
    No. 2010-C-2726.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Casborn et al., Betty; Casborn, Adam; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2008-13138; to the Court of Appeal, First Circuit, Nos. 2009 CA 1914, 2009 CA 1915.

Denied.


text:
    Betty CASBORN, Wife of/and Adam Casborn v. William CURRAN, M.D. and Northshore Regional Medical Center.
    No. 2010-C-2727.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Casborn et al., Betty; Casborn, Adam; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St, Tammany, 22nd Judicial District Court Div. E, No. 2008-13138; to the Court of Appeal, First Circuit, No. 2009 CA 1914.

Denied.


text:
    STATE of Louisiana v. Hosea DESHOTEL, III.
    No. 2010-KK-2728.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Deshotel III, Hosea; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2002-111810A; to the Court of Appeal, Third Circuit, No. KW 10-00679.

Denied.

KNOLL, J., recused.


text:
    Wesley BOLTON v. SEA MAR WAREHOUSING AND LOGISTICS, INC. and ABC Insurance Company.
    No. 2010-C-2730.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Bolton, Wesley; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 102-157; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0286.

Denied.


text:
    In the Matter of The SUCCESSION OF Wilda Jean Barnett HUTCHINSON.
    No. 2010-CC-2733.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Landrum, Susan Barnett; —Other; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. H, No. 13,505; to the Court of Appeal, First Circuit, No. 2010 CW 1593.

Denied.


text:
    Robinson VENTURES, L.L.C. v. STATE of Louisiana, Through The Division of Administration, Office of Community Development, ICF Emergency Management Services, LLC, First American Title Insurance Company of Louisiana, Inc. et al.
    No. 2010-CC-2317.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Louisiana State of et al.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, CM District Court Div. I, No. 2010 — 4016; to the Court of Appeal, Fourth Circuit, No. 2010-C-1163.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Eric Dale MICKELSON.
    No. 2010-KK-2740.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Mickelson, Eric Dale; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 262,256; to the Court of Appeal, Second” Circuit, No. 46112-KW.

Denied.


text:
    STATE of Louisiana v. Robert Paul JOHNSON, II.
    No. 2010-KK-2754.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Johnson II, Robert Paul; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, Nos. 25241, 95875; to the Court of Appeal, First Circuit, No. 2010 KW 1720.

Denied.


text:
    NEXEN PETROLEUM U.S.A., INC. v. INTERMOOR, INC.
    No. 2010-CC-2760.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Intermoor Inc.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. E, No. 118,344; to the Court of Appeal, First Circuit, No. 2010 CW 1323.

Denied.


text:
    Robert Wayne BARNETT, Sr. v. AMERICAN CONSTRUCTION HOIST, INC.
    No. 2010-CC-2761.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re American Construction Hoist, Inc.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge,. 19th Judicial District Court Div. E, No. 579018; to the Court of Appeal, First Circuit, No. 2010 CW 1529.

Denied.


text:
    NEXEN PETROLEUM U.S.A., INC. v. INTERMOOR, INC.
    No. 2010-CC-2767.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Nexen Petroleum U.S.A. Inc.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. E, No. 118,344; to the Court of Appeal, First Circuit, No. 2010 CW 1340.

Denied.


text:
    Gregory PETERS v. GREYHOUND LINES, INC.
    No. 2010-C-2769.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Peters, Gregory; —Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. 08, No. 07-6092; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0969.

Denied.


text:
    STATE of Louisiana v. Howard Paul MONISTERE.
    No. 2010-KK-2770.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Monistere, Howard Paul; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. D, No. 24584; to the Court of Appeal, First Circuit, No. 2010 KW 1749.

Denied.


text:
    Jeanette Garnett PICHON, Roland L. Pichon, Mark P. Pichon, Patrice Pichon Robinson, Tracy Pichon Baham, Veronica Pichon Joseph, And Cade Pichon Hagger v. ASBESTOS DEFENDANTS, et al.; Bayer Cropscience, Inc. (as Successor of Liability to Rhonepoulenc AG Company f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company; Seville, Inc. (Formerly, Branton Insulations, Inc.); Continental Insurance Company; et al.
    No. 2010-C-2771.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Baham, Tracy Pichón; Hagger, Cacle Pichón; Joseph, Veronica Pichón; Pichón, Jeanette Garnett et al.; Pichón, Mark P.; Pichón, Roland L.; Robinson, Patrice Pichón; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2007-15083; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0570.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Terry BOYD, et al.
    No. 2010-KK-2774.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Boyd, Terry; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 490-531; to the Court of Appeal, Fourth Circuit, No. 2010-K-1345.

Denied.


text:
    STATE of Louisiana v. Ian HUGHES.
    No. 2010-KK-2777.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Hughes, Ian; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, Nos. 10-1711, 10-1712; to the Court of Appeal, Fifth Circuit, No. 10-K-881.

Denied.


text:
    STATE of Louisiana v. Terry BOYD, et al.
    No. 2010-KK-2792.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 490-531; to the Court of Appeal, Fourth Circuit, No. 2010-K-1345.

Denied.


text:
    STATE of Louisiana v. Paul LeBLANC.
    No. 2010-KP-1282.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re LeBlanc, Paul; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 357107; to the Court of Appeal, First Circuit, No. 2010 KW 0186.

Denied.

JOHNSON, J., would grant and assigns reasons.


text:
    STATE ex rel. James J. BARBEE v. STATE of Louisiana.
    No. 2010-KH-0275.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Barbee, James J.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. F, No. 09-179,084; to the Court of Appeal, First Circuit, No. 2009 CW 1888.

Writ granted in part. The district court erred in finding that the district attorney’s file relating to relator’s case could not support a claim cognizable under La. C.Cr.P. art. 930.3 because the time limitations within in which to file had lapsed. See La.C.Cr.P. art. 930.8. Because such documents might support such an application under an exception to the limitations period, see, e.g., La.C.Cr.P. art. 930.8(A)(1), and given that only a specific and unequivocal law can limit the fundamental right of access to public records, see, e.g., Capital City Press v. Metro. Council, 96-1979, p. 4-5 (La.7/1/97), 696 So.2d 562, 564, relator still has the right of access to the records sought under the applicable laws, which contain no reference to La.C.Cr.P. art. 930.8. See R.S. 44:31.1; see also La. Const. art. XII, section 3; R.S. 44:31; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325. Therefore, the St. Mary Parish District Attorney’s Office is ordered to provide relator with an estimate of the costs of reproducing the public records relator has requested and to which he is entitled. In all other respects, the application is denied.


text:
    STATE ex rel. Charles G. RODGERS v. STATE of Louisiana.
    No. 2010-KH-0213.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re Rodgers, Charles G.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2006-11527; to the Court of Appeal, First Circuit, Nos. 2008 CW 2021, 2009 CW 2087.

Writ granted. Because his eodefen-dant’s pretrial statement appears discoverable under the Public Records Law, see R.S. 44:31.1; see also La. Const. art. XII, section 3; R.S. 44.31; Landis v. Moreau, 00-1157 (La.2/21/01), 779 So.2d 691, the district court erred when it summarily denied relator’s application for a writ of mandamus seeking production of the document. Absent an affirmative showing at a contradictory hearing in the district court that relator is not entitled to the material, the Slidell Police Department is ordered to provide relator with an estimate of the costs of reproducing the public, record(s) relator has requested. In all other respects, the application is denied.


text:
    Leandez McGEE v. BRAND SERVICES, INC.
    No. 2010-C-2447.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   In re McGee, Leandez; —Plaintiff; Applying For Writ of Certiorari and/or Review Workers’ Compensation District 8, No. 08-4805; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0307.

The ruling and judgment of the Court of Appeal is reversed and vacated. The case is remanded to the Court of Appeal for full review, argument and opinion under the manifest error standard.


text:
    In re Drew Arnold LOHOFF.
    No. 2011-OB-0313.
    Supreme Court of Louisiana.
    Feb. 6, 2011.
   In re Lohoff, Drew Arnold; —Plaintiff; Applying For Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, Section 4(C).


text:
    STATE of Louisiana v. Daniel MAGEE.
    No. 2010-KP-1004.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re MaGee, Daniel; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 410-075; to the Court of Appeal, Fourth Circuit, No. 2010-K-0359.

Denied.


text:
    STATE of Louisiana v. Eric BALLARD.
    No. 2011-KK-0310.
    Supreme Court of Louisiana.
    Feb. 14, 2011.
   In re Eric, Ballard; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 494-828; to the Court of Appeal, Fourth Circuit, No. 2011-K-0204.

Denied.


text:
    STATE of Louisiana v. Frank DANIELS.
    No. 2011-KK-0327.
    Supreme Court of Louisiana.
    Feb. 16, 2011.
   In re Daniels, Frank; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 492-208; to the Court of Appeal, Fourth Circuit, No. 2011-K-0222.

Stay denied; writ denied.


text:
    STATE of Louisiana v. George LEWIS.
    No. 2011-KK-0223.
    Supreme Court of Louisiana.
    Feb. 16, 2011.
   In re Department of Children and Family Services; State of Louisiana; —Other(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 469-823; to the Court of Appeal, Fourth Circuit, No. 2010-K-1620.

Denied. Motion to seal granted.


text:
    Sarah TROSCLAIR, et al. v. NORTHROP GRUMMAN SHIPBUILDING, INC., et al.
    No. 2011-CC-0278.
    Supreme Court of Louisiana.
    Feb. 16, 2011.
   In re Trosclair, Joseph Anthony; Tros-clair, Sarah Calegon et al.; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2010-6217; to the Court of Appeal, Fourth Circuit, No. 2010-C-1727.

Denied.


text:
    STATE of Louisiana v. Robert CARLEY, et al.
    No. 2011-KD-0241.
    Supreme Court of Louisiana.
    Feb. 17, 2011.
   In re Carley, Robert; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. W-04-3-77; to the Court of Appeal, First Circuit, No. 2011 KW 0199.

Denied.


text:
    In re Todd J. WIMBERLEY.
    No. 2011-OB-0326.
    Supreme Court of Louisiana.
    Feb. 17, 2011.
   In re Wimberiey, Todd J.; —Plaintiff; Applying For Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, Section 4(C). Moreover, should petitioner timely file an application to sit for a future bar examination, he remains subject to all conditions set forth in our July 21, 2010 order in In re: Wimberley, 10-1691 (La.7/21/10), 39 So.3d 595.

WEIMER, J., would grant.


text:
    Jeffrey Owen MEAUX v. WENDY’S INTERNATIONAL, INC., F.J.B. Construction, Inc., ACE Insurance Company, and XYZ Insurance Company.
    No. 2010-C-2613.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Wendy’s International, Inc.; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 639-145;' to the Court of Appeal, Fifth Circuit, No. 10-CA-lll.

Granted.


text:
    SILVER DOLLAR LIQUOR, INC. v. RED RIVER PARISH POLICE JURY.
    No. 2010-C-2776.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Silver Dollar Liquor Inc.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Red River, 39th Judicial District Court Div., No. 34,883; to the Court of Appeal, Second Circuit, No. 45,637-CA.

Granted.


text:
    Desi FULMER v. STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES and Gary Pierce.
    No. 2010-C-2779.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Department of Wildlife and Fisheries; Pierce, Gary; State of Louisiana, et al.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 51-232; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0088.

Granted.


text:
    STATE of Louisiana v. Leonard LEWIS.
    No. 2010-KO-0967.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Lewis, Leonard; —Defendant; Applying for Reconsideration of this Court’s order dated November 24, 2010; Parish of Vernon, 30th Judicial District Court Div. C, No. 67408; to the Court of Appeal, Third Circuit, No. 09-846.

Reconsideration denied.


text:
    STATE ex rel. Nicholas Demond PITREE v. STATE of Louisiana.
    No. 2009-OK-2491.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Pitree, Nicholas Demond; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 8879-04; to the Court of Appeal, Third Circuit, No. 08-1381.

Denied.


text:
    STATE ex rel. Williams COOPER a/k/a William Cooper v. STATE of Louisiana.
    No. 2010-KH-0282.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Cooper, Williams; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 474-211; to the Court of Appeal, Fourth Circuit, No. 2009-K-0164.

Denied.


text:
    STATE ex rel. Tony Joseph TABOR v. STATE of Louisiana.
    No. 2010-KH-0283.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Tabor, Tony Joseph; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 447,948; to the Court of Appeal, First Circuit, No. 2007 KA 0058.

Denied.


text:
    Clifton B. AYCHE v. STATE of Louisiana.
    No. 2010-OK-0381.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Ayche, Clifton B.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 04-6318; to the Court of Appeal, Fifth Circuit, No. 09-KH-1066.

Denied.


text:
    Ronald E. COLEMAN v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, et al.
    No. 2010-OK-0382.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Ronald E. Coleman; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 559,816; to the Court of Appeal, Third Circuit, No. CW 09-01181.

Denied.


text:
    STATE ex rel. Michael DUNCAN v. STATE of Louisiana.
    No. 2010-KH-0383.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Duncan, Michael; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 394-577; to the Court of Appeal, Fourth Circuit, No. 2009-K-1609.

Denied.


text:
    STATE ex rel. Larry R. PRICE v. STATE of Louisiana.
    No. 2010-KH-0402.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Price, Larry R.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 398-639; to the Court of Appeal, Fourth Circuit, No. 2009-K-1612.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; cf. La. C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Lee Roy WARREN v. STATE of Louisiana.
    No. 2010-KH-0404.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Warren, Lee Roy; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 02F0432; to the Court of Appeal, Second Circuit, No. 45,-271-KH.

Denied.


text:
    STATE ex rel. Joel R. PEDELAHORE v. STATE of Louisiana.
    No. 2010-KH-0406.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Pedelahore, Joel R.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 337852; to the Court of Appeal, First Circuit, No. 2009 KW 2007.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. Cf. La. C.Cr.P. art. 930.4(A); La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Barry Lacurtis RIDEOUT v. STATE of Louisiana.
    No. 2010-KH-0411.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Rideout, Barry Lacurtis; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 244,529; to the Court of Appeal, Second Circuit, No. 45,-268-KH.

Denied.


text:
    STATE ex rel. Malcolm WINN v. STATE of Louisiana.
    No. 2010-KH-0412.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Winn, Malcolm; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 456-755; to the Court of Appeal, Fourth Circuit, No. 2009-K-1723.

Denied.


text:
    STATE ex rel. Theron HUNTER v. STATE of Louisiana.
    No. 2010-KH-0413.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Hunter, Theron; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 332644; to the Court of Appeal, First Circuit, No. 2009 KW 2082.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Edward McGARY v. STATE of Louisiana.
    No. 2010-KH-0414.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re McGary, Edward; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 53-149; to the Court of Appeal, First Circuit, No. 2009 KW 2099.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Byran MEANS v. STATE of Louisiana.
    No. 2010-KH-0417.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Means, Byran; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 142,140; to the Court of Appeal, Third Circuit, No. 09-489.

Denied.


text:
    STATE ex rel. Cesar ROCA, Sr. v. STATE of Louisiana.
    No. 2010-KH-0438.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Roca Sr., Cesar; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 01-1422; to the Court of Appeal, Fifth Circuit, No. 08-WR-907.

Denied.


text:
    STATE ex rel. Arthur J. WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-0482.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Williams, Arthur J.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 99-1909; to the Court of Appeal, Fifth Circuit, No. 08-WR-932.

Denied.


text:
    STATE ex rel. Manuel YOUNGBLOOD v. STATE of Louisiana.
    No. 2010-KH-0483.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Youngblood, Manuel; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 248-956.

Denied.


text:
    STATE ex rel. Howard COBB v. STATE of Louisiana.
    No. 2010-KH-0498.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Cobb, Howard; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. E, Nos. 76,112, 76,113, 76,115; to the Court of Appeal, Second Circuit, No. 45,338-KH.

Denied.