author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Darius NELAMS, Appellant.
    No. 45,817-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Marcus Ray Patillo, Assistant District Attorneys, Minden, LA, for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ. .
   PEATROSS, J.

| iDefendant, Darius Nelams, pled guilty to manslaughter in violation of La. R.S. 14:31. He was subsequently sentenced to 30 years at hard labor with credit for time served. Defendant now appeals his sentence as constitutionally excessive. For the reasons stated herein, the sentence of Defendant is affirmed.

FACTS

On August 3, 2009, Defendant was indicted by a Webster Parish Grand Jury on the following three felony counts: Count 1-Second degree murder of Kochief Hicks, a violation of La. R.S. 14:30.1; Count 2-Conspiracy to commit second degree murder of Kochief Hicks, a violation of La. R.S. 14:30.1 and La. R.S. 14:26; and, Count 3-Conspiracy to commit the aggravated kidnaping of Kochief Hicks, a violation of La. R.S. 14:44 and La. R.S. 14:26. Defendant was arraigned on August 24, 2009, and entered a plea of not guilty. On September 28, 2009, with benefit of counsel, Defendant withdrew his plea of not guilty and, after being advised of his rights per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), entered a plea of guilty on Count 1 to the responsive verdict of manslaughter. In exchange, the State dismissed Counts 2 and 3. The factual basis for the plea was recited by the State as follows:

If this matter were ultimately go [sic ] to jury trial, the State would introduce evidence which would indicate that Mr. Nelams and the victim were in a dispute involving money and/or drugs and that as a result of that dispute or argument Mr. Nelams went looking for Mr. Hicks. The day before the shooting he was being driven around by a Charles Moses trying to find Kochief Hicks. On the actual date of the shooting, Marcus Hayes was also in the vehicle with him. And on or |2about that date, April 26, 2009, Darius Nelams locate or located Mr. Hicks and they went to the Sonic Drive Inn (sic) looking for another individual and then the witnesses will indicate that they saw Mr. Hicks running from Mr. Nelams and that Mr. Nelams then shot him with a pistol. As a result of that firing, Mr. Hicks ultimately died as a result of gunshot wounds. There are witnesses to the shooting, as well as the incident was captured on video surveillance footage. Again, all these facts took place in Webster Parish.

The trial judge ordered a presentence investigation (“PSI”) report and Defendant was sentenced at a hearing on November 30, 2009. Prior to imposing sentence, the judge reviewed the PSI report, noting the particulars of Defendant’s conduct on the day of the victim’s death. Specifically, the judge described that the shooting took place at a Sonic Drive-In in Springhill, Louisiana, where Defendant had brought the victim after forcibly removing him at gunpoint from a residence. The parties were allegedly involved in a dispute over a “large” sum of money.

The judge also reviewed Defendant’s social and criminal history as described in the PSI report. The judge noted that Defendant was 23 years of age at the time of sentencing and that he had completed high school and attended a junior college for two years in Kilgore, Texas. Thereafter, Defendant returned home and began work on roofing projects. Defendant was single, but expecting a child with a woman who resides in Houston, Texas.

The trial judge also noted Defendant’s lack of a significant criminal history. Defendant’s prior convictions were for misdemeanors, including three for disturbing the peace and one for possession of marijuana. While Defendant had no felony convictions, the judge did note that he had an | .¡outstanding bench warrant on a second degree battery charge. The judge also referred to various letters he had received written on behalf of Defendant. The letters, including one written by his pastor, spoke well of Defendant and how his conduct resulting in the present conviction was out of character.

The judge listed as aggravating factors Defendant’s use of a dangerous weapon and the serious harm caused by his conduct. Concluding that Defendant was in need of correctional treatment most effectively provided by commitment to a penal institution, and that a lesser sentence would deprecate the seriousness of his offense, the trial judge sentenced Defendant to 30 years at hard labor with credit for time served. A motion to reconsider sentence arguing only constitutional exces-siveness was filed by Defendant and denied. This appeal followed.

DISCUSSION

Assignment of Error Number One (verbatim): The court erred by imposing an excessive sentence.

Defendant argues that the sentence imposed by the trial judge was excessive. He urges that the trial judge failed to give proper weight to the fact that he took responsibility, and expressed remorse, for his actions. Defendant further emphasizes his youthful age, family support and lack of criminal history.

La. C. Cr. P. art. 881.1 precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional Rexcessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123. Since Defendant’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, supra, he is “simply relegated to having the appellate court consider the bare claim of excessiveness.”

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, unit denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

|,A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The sentencing range for a manslaughter conviction is zero to 40 years at hard labor. La. R.S. 14:31. Significantly, as part of Defendant’s plea bargain, the State reduced the charge of second degree murder to manslaughter and dismissed the two felony conspiracy charges. The PSI report suggests that the evidence would have supported a second degree murder conviction. The mandatory sentence on a conviction for second degree murder is life imprisonment at hard labor without benefits. La. R.S. 14:30.1. Accordingly, Defendant received a substantial advantage as a result of his plea agreement, which capped his sentencing exposure at 40 years.

Next, we note that the killing of Hicks by Defendant was a violent offense and the imposed sentence of 30 years is well below the maximum of the sentencing range for manslaughter. We conclude that the sentence is warranted by the violent nature of the crime and the resultant death of the victim. Considering the nature of Defendant’s actions, we do not find the sentence imposed by the trial court to be a purposeless and needless | ^infliction of pain and suffering or grossly out of proportion to the sei'iousness of the offense.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, Darius Nelams, is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Gregory FRANKS, Appellant.
    No. 45,818-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Rehearing Denied Dec. 9, 2010.

      William Nader, Shreveport, Louisiana, for Appellant.
    Gregory Franks, In Proper Person.
    Charles R. Scott, II, District Attorney, J. Dru Thompson, Edwin L. Blewer, III, Jason Trevor Brown, Assistant District Attorneys, Shreveport, Louisiana, for Appel-lee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

11 Gregory Franks appeals a judgment denying his motion to nullify all proceedings that occurred after the recused Judge Michael Walker resumed presiding over his criminal trial. We affirm.

Franks was charged by bill of information with possession of over 400 grams of cocaine. The case was assigned to Section “5,” Judge Michael Walker. In July 2004, Franks retained counsel, Mr. John Cucci, who filed several pretrial motions. When Mr. Cucci made his first appearance on behalf of Franks, Judge Walker sua sponte recused himself from the case, stating only that it was “per his [Mr. Cucci’s] request.” The case was randomly reassigned to Section “3,” at the time Judge Jeanette Garrett but later rotated to Judge Scott Crichton. In January 2005, however, Franks appeared before Judge Crichton and announced that he had fired Mr. Cucci. Judge Crichton stated that the cause of Judge Walker’s recusal had been cured, so he transferred the case back to Section “5.”

After trial in August 2005, a 12-member jury unanimously found Franks guilty as charged. The state then charged him as a habitual offender; the court adjudicated him a third felony offender and imposed the mandatory life at hard labor without benefits. These proceedings occurred in Section “5,” Judge Walker; Franks did not object. At the trial and all subsequent hearings, Franks had counsel other than Mr. Cucci.

Franks appealed, urging inter alia that Judge Walker lacked the authority to preside over the case after his recusal. This court remanded for an evidentiary hearing to develop the reasons for Judge Walker’s initial recusal and the subsequent reassignment of the case back to him. We noted 12that any action taken by a recused judge is an “absolute nullity,” State v. Price, 274 So.2d 194 (La.1973), but that a recused judge may preside over a case if something subsequently occurs to “neutralize” the cause of recusation, State v. Wilson, 362 So.2d 536 (La.1978). We also rejected Franks’s alleged trial errors. State v. Franks, 42,663 (LaApp. 2 Cir. 2/13/08), 975 So.2d 836.

The hearing occurred on March 31, 2010, before Section “5,” Judge Craig Mar-cotte. Former Judge Walker did not appear, but assistant district attorney Jason Brown testified that he was one of the prosecutors who saw the case to completion. According to Mr. Brown, “There seemed to be an issue about their relationship, and Judge Walker had recused himself from all of John Cucci’s cases thereby necessitating the case being transferred to Section 3[.]” He further testified, “The only reason for the recusal from Section 5 would have been the acrimonious relationship between Judge Michael Walker and the attorney at the time, John Cucci.” The situation was such that Judge Walker “recused himself from all of John Cucci’s cases,” but “once Cucci was no longer involved with the case, I believe Judge Crichton felt there was no need for recusal and sent the case back to Judge Walker to handle in drug court.” Questioned by the court, Mr. Brown explained:

To my knowledge, the recusal had nothing to do with the defendant himself or any of the facts of the case or circumstances. It only had to do with the fact that the attorney representing Mr. Franks at the time was an individual * ⅜ * that Judge Walker would not allow to practice in front of him and therefore recused him of all of his cases.

|aMr. Brown concluded that during the trial and adjudication, Judge Walker made no adverse rulings that would have influenced the jury.

By written ruling, the district court denied Franks’s motion to nullify all proceedings over which Judge Walker presided.

Franks now appeals. Appellate counsel has filed a brief conceding that there are no assignable errors, and suggesting that once Mr. Cucci was off the case, the sole cause of Judge Walker’s recusation was removed; hence, under State v. Wilson, supra, he was competent to hear the case. The state has declined to file a brief.

By pro se brief, however, Franks urges (without specific assignments of error) that the record still does not show why Judge Walker initially recused himself. He contends that Mr. Cucci failed to file a motion to recuse under La. C. Cr. P. art. 674, stating any grounds; the only evidence at the hearing was the testimony of Mr. Brown, “who gives only his assumption [sic], which are suspect,” as he was not one of the prosecuting attorneys; and that the state failed to call Judge Walker. He voices his belief that Judge Walker’s recu-sal “was, if not in whole, it was in part, because of the appellant” and suggests that he is the victim of fraud.

Franks’s claims are completely unavailing. A judge may recuse himself, “whether a motion for his recusation has been filed by a party or not, in any case in which a ground for recusation exists.” La. C. Cr. P. art. 672. Simply put, recusation sua sponte is permitted.

Further, when Judge Walker recused himself, he stated on the record that he did so “per his [Mr. Cucci’s] request.” The evidence at the hearing Lin March 2010 firmly establishes that rancor between Mr. Cucci and Judge Walker was the only reason for recusal. Once Franks fired Mr. Cucci, this neutralized the bias. State v. Jacobs, 2009-1804 (La.6/18/10), 37 So.3d 994; State v. Wilson, supra.

Although Mr. Brown was not the lead prosecutor, he testified without contradiction that he was “one of the prosecutors” who handled the case to completion. He had firsthand knowledge that because of their bitter relationship, Judge Walker recused himself from all of Mr. Cucci’s cases. There was absolutely no evidence that Judge Walker had any bias against Franks personally.

Finally, after Judge Crichton transferred the case back to Judge Walker’s court, Franks proceeded to trial, a habitual offender hearing and various other appearances without once objecting. The failure to object waived his right to demand Judge Walker’s recusal. State v. Foster, 156 La. 891, 101 So. 255 (1924); State v. Maten, 2004-1718 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, writ denied, 2005-1570 (La.1/27/06), 922 So.2d 544. It equally waived his right to demand nullification of the proceedings.

The district court did not err in refusing to nullify the proceedings. The judgment is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.


author: WILLIAMS, J.

text:
    Eureka Panmonte DEMERY, Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 45,615-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Larry English, Shreveport, LA, for Appellant.
    Claude W. Bookter, Jr., Shreveport, LA, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

| jThe plaintiff, Eureka Demery, appeals a judgment awarding her $6,000 for the repair of property damage caused by a leaking drainage pipe. The defendant, City of Shreveport, answers the appeal seeking reversal of the judgment, or alternatively, a reduction of the award. For the following reasons, we affirm.

FACTS

In October 1998, Eureka Demery purchased a house located at 857 Sherwood Drive in Shreveport. In 2004, Demery complained to the City of Shreveport (“the City”) about a sink hole in her yard near the rear of the house. City officials investigated the problem and found a leak in a city drainage pipe running under Demery’s backyard and alongside her house. The City determined that a repair was not possible and that the drainage pipe would need to be relocated. Demery granted a right-of-way to the City, which rerouted the drainage line to run along a public street and across the front of Demery’s property. In addition, the City installed catch basins at two points where the drainage pipe changed direction. The relocation project was completed in 2005 and the old pipe underneath Demery’s backyard was plugged with concrete.

In September 2005, the plaintiff, Eureka Demery, filed a petition for damages against the defendant, the City, alleging that she had sustained property damage and emotional distress as a result of the City’s failure to properly maintain the drainage pipe. After the plaintiff failed to file the pretrial order and submit an expert witness report as required by the trial court’s scheduling order, the City filed a motion in limine to exclude all of 12plaintiff s witnesses and exhibits from evidence. The court granted the motion as to several witnesses and denied it as to some others, but the court prohibited plaintiff from introducing any documentary evidence at trial. Plaintiff applied for a writ to review the trial court’s order. This court granted the writ and reversed the trial court’s order, but imposed sanctions on plaintiffs counsel for his egregious failure to respond to the scheduling order. Demery v. City of Shreveport, 43,651 (La. App.2d Cir.5/22/08).

Subsequently, the plaintiff filed an amended petition alleging that at the time she bought the house, the City committed fraud by failing to inform her about the drainage pipe under the property and about prior complaints of drainage problems by former owners and neighbors. In response, the City filed an exception of vagueness on the grounds that plaintiffs allegations of flooding and fraud lacked any specificity. The trial court sustained the exception of vagueness and allowed plaintiff 10 days to amend the pleading with additional facts concerning the allegations of fraud and flooding. The plaintiff did not supplement her pleadings.

Following a bench trial, the court found that the leak in the drainage pipe caused soil erosion, which resulted in a sink hole and minor settlement of the addition on the back of the house. The court further found that plaintiff failed to present sufficient evidence to establish that the City was liable for her emotional distress or the alleged flooding of her house. The court rendered judgment awarding $6,000 in damages to the plaintiff for the cost to stabilize the structure and fill the sink hole. Plaintiff appeals the judgment and seeks additional damages. The City answered the appeal, ^alleging that the damage award should be reduced.

DISCUSSION

In two assignments of error, the plaintiff contends the trial court erred in awarding an inadequate amount of damages. Plaintiff argues that the property damage to her house caused a psychological trauma that aggravated her emotional distress.

In the assessment of damages for personal injury, much discretion must be left to the judge or jury. LSA-C.C. art. 2324.1. General damages involve mental or physical pain and suffering, inconvenience and loss of intellectual or physical enjoyment that cannot be definitively measured in monetary terms. Day v. Ouachita Parish School Board, 35,831 (La.App.2d Cir.8/8/02), 823 So.2d 1039; Robbins v. State Dept. of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So.2d 991. Before the trial court’s general damage award may be disturbed, the record must clearly show that the factfinder abused its broad discretion in making the award. Poulan v. Hunter, 36,225 (La.App.2d Cir.11/6/02), 830 So.2d 1125; Day, supra.

The mental anguish which gives rise to a claim of damages must be real mental injury. Kemper v. Don Coleman, Jr., Builder, Inc., 31,576 (La.App.2d Cir.7/29/99), 746 So.2d 11. Every incident of property damage is necessarily accompanied by some degree of worry or consternation. However, recovery of damages requires the plaintiff to have suffered psychic trauma in the nature of a physical injury as a direct result of the incident which caused the property damage. Kem-per, supra. The trial court’s findings of fact are subject to the manifest error standard of review. |4The appellate court must determine whether the factfinder’s conclusion is reasonable based upon the record as a whole. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566.

In the present case, the plaintiff presented the testimony of Dr. Gary Milford, a psychologist, who stated that he first saw plaintiff in March 2005, on a referral from her attorney in a lawsuit against her employer, Kansas City Southern Railroad (“KCS”). Dr. Milford testified that he was not aware that plaintiff was having a problem with her house until one year later, in March 2006, when she cancelled an appointment to go to court on a matter involving her house. Dr. Milford stated that the problem with her house would have been a source of stress for plaintiff, but he could not draw a direct cause-and-effect relationship between the situation with her property and her depression. Dr. Milford testified that plaintiff expressed worry that if her employer closed its local office, she would be unable to sell her house if she needed to move. He stated that in 2005, plaintiff reported that the major stressor in her life was the denial of her request for a promotion at work, and that she felt worthless and distraught as a result.

The plaintiff, Eureka Demery, testified that she bought the house at 857 Sherwood in October 1998. She stated that after moving into the house she saw that the wood floor in one bedroom was buckling, there were a number of cracks in the interior and exterior walls and a sink hole in the backyard. Plaintiff testified that prior to moving into the house, she was outgoing and participated in activities with her four daughters, but during their first year in the home she grew frustrated with the damage in the |shouse, became short-tempered and withdrew emotionally from her children. Plaintiff stated that she did not have depression before purchasing the house, but she became upset because she felt that she had let down her children in buying a damaged house. Plaintiff testified that while living in the house, she was also having problems with harassment at her job and had filed a federal lawsuit in 2005 alleging a hostile work environment. She stated that in January 2005, she went to the emergency room at Willis Knighton Health Center (“Willis Knighton”) feeling depressed with suicidal thoughts, and was diagnosed with depression. Plaintiff was hospitalized again in October 2005, shortly after returning to work following an absence and after learning of the leaking drainage pipe. Plaintiff testified that her problems at work continued and she was admitted to the hospital for depression in December 2005, after she “experienced something” on the job. She stated that at the time of trial she was still being treated by a psychologist and taking antidepressant medications.

The plaintiff introduced into evidence the medical records of Willis Knighton, of Drs. Brian Babiak and Lloyd Bellah, psychiatrists, of Drs. Milford and Ronald Goe-bel, psychologists, and of Dr. Richard Sipes. The Willis Knighton emergency department records show that on January 21, 2005, the plaintiff presented complaining that she was “stressed out” because of problems with her job and that she was thinking of killing herself. The emergency medicine physician noted in his report that plaintiff denied having been depressed before. In his January 2005 discharge summary, Dr. Babiak noted that plaintiff denied any past psychiatric illness |fiand that her main stressor was difficulty with coworkers. In the May 2005 discharge summary, Dr. Babiak reported that plaintiff had been hospitalized for depression after being involved in an altercation at work.

The records of Dr. Sipes show that he began treating plaintiff for hypertension in 2002. During a visit in July 2004, plaintiff complained of stress related to problems at work and said that she feared losing her job. In September 2004, Dr. Sipes noted that plaintiff was still very upset about work and was hiring a lawyer. Plaintiff also complained about stress from her job in November 2004, January 2005 and December 2005. Dr. Sipes’ records do not indicate that plaintiff ever mentioned any anxiety regarding her house. Nor do the records of Drs. Bellah or Goebel contain any reference by plaintiff to house foundation problems as a source of her depression and anxiety.

The trial court considered the medical evidence and the credibility of the plaintiff. Based upon this record, we cannot say the trial court was clearly wrong in finding that plaintiff failed to satisfy her burden of proving that she sustained psychic trauma as a result of the drainage pipe leak which caused the property damage. Consequently, the trial court did not err in declining to award plaintiff damages for emotional distress. Thus, the assignments of error lack merit.

Loss of Enjoyment

The plaintiff contends the trial court erred in failing to award her damages for loss of enjoyment of life. Plaintiff argues that because of the property damage caused by the City, she felt embarrassed and was less able 17to participate in school and church activities with her children.

Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alterations of a person’s life or lifestyle, or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed. McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770; Day, supra. Loss of enjoyment of life is a compensable component of general damages under LSA-C.C. art. 2315 and the jurisprudence. McGee, supra. A plaintiff is entitled to recover damages for loss of enjoyment of life if she proves that her lifestyle was detrimentally altered or that she was forced to give up activities because of her injury. McGee, supra; Day, supra.

Initially, we note that the plaintiff cannot recover damages for loss of enjoyment of life because, as stated above, she failed to prove the necessary element of a personal injury resulting from the property damage. Even if we were to assume there was an injury, the testimony of plaintiff and her daughter did not demonstrate that the City’s act caused any detrimental alteration of the plaintiffs lifestyle or an inability to participate in activities as before. Thus, the record does not support an award of damages for loss of enjoyment of life. The assignment of error lacks merit.

Economic Loss

The plaintiff contends the trial court abused its discretion in failing to award sufficient damages for the repair of all property damage. Plaintiff argues that the damage award was inadequate to compensate her for lost economic value of the house based on the evidence of major structural | sdamage.

The factfinder’s choice between two permissible views of the evidence cannot be manifestly erroneous. Willis v. Safeway Insurance Company of Louisiana, 42,665 (La.App.2d Cir.10/24/07), 968 So.2d 346. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole v. State Department of Public Safety & Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134; Willis, supra.

Dean Cole, vice-president of Interstate Foundation (“Interstate”), testified that he had inspected the plaintiffs property five times from 1987, when an addition was stabilized for a prior owner, to August 2005. Cole stated that in 2000, someone else from Interstate visited the property in response to a call from plaintiff. Cole testified that the minor cracks observed in the interior walls at the time had resulted from slight movement of the foundation caused by expansion and contraction of the soil due to moisture changes. Cole stated that in June 2004, the plaintiff called about a 2-feet deep hole that had developed near the chimney at the rear of her house and he sent workers to pack the hole with clay. He testified that when plaintiff called in October 2004, the hole needed to be filled again and he learned there was a drainage pipe underground that apparently was leaking and washing away the soil. Cole stated that plaintiff called again in August 2005, and he saw that the addition at the rear of the house had resettled in the same location as in 1987. Cole testified that in 2005, the extent of movement was approximately one-half to three-fourths of an inch and that |9the original footings would need to be replaced at a cost of $3,250, plus $500 for an engineering report. He stated that the settlement of the addition after 17 years indicated that something significant had occurred, other than the normal expansion and contraction of the underlying soil. However, Cole testified that the extent of the addition’s movement was “not major” and that the slab under the original house had remained level.

Plaintiffs expert in structural engineering, Dr. Austin Pan, reviewed the report prepared by NTB Associates (“NTB”), which had been hired by the City, describing certain problems with the condition of the house, such as cracking of the exterior brick veneer, cracks in the interior walls and ceilings and hairline cracks in the foundation. The report also noted various other damage, including separation between the window framing and the wall and between the brick veneer and the siding. Pan stated that the three holes observed in the front yard by Interstate in 1991 could have been caused by a leak in the City’s drainage pipe at the time. Pan testified that the drainage pipe “might have been leaking” before 1987, based on the two inches of settlement found by Interstate that year. He did not agree with NTB’s conclusion that the observed damage in the exterior and interior of the residence was consistent with minor movement of the slab and materials caused by changes in temperature and moisture. Pan testified that the report showed extensive damage to the house that more likely than not was due to major soil loss from under the house’s foundation caused by the leaking pipe. Pan opined that given such major damage, the cost to repair the structure outweighed the value of the house and he recommended tearing | indown and rebuilding the house. The plaintiff also presented the testimony of Evora Morrison, a real estate broker, who testified that if there was a problem with the foundation of the house, she would not list the property for sale and the house could not be sold at the price plaintiff wanted.

The trial court heard conflicting testimony regarding the extent of damage caused to plaintiffs house and the cost of repair. The court considered the evidence and weighed the credibility of the witnesses. The trial court found that Cole was the most credible witness because his estimate of the cost to stabilize the structure was not prepared for litigation, but was based upon his substantial experience, and his testimony was consistent with the factual situation shown by the evidence presented. The court’s decision to give greater weight to Cole’s testimony is supported by this record. Thus, we cannot say the trial court erred in awarding damages based upon Cole’s estimate.

In its answer to the appeal, the City argues that the trial court’s award of $6,000 exceeds the cost of the repair work proven at trial and should be reduced. In making the damage award, the trial court noted that Cole had given his estimate in 2005, approximately 4 years before the date of trial, and that costs could be expected to have increased during that period. The Interstate estimate provided for excavation of the site, pumping of slurry to fill voids and stabilize the subsoil, lifting the structure to a level point, and the removal and replacement of concrete footings to support the structure. In light of the work proposed and the passage of time since the estimate was prepared, we cannot say the trial court abused its discretion in awarding an Inamount sufficient to provide for an increase in the cost of labor and materials that could reasonably be anticipated in the interim between the date of the estimate and the date of judgment. Consequently, the City’s argument lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Eureka Demery.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Robert Bradley WOMACK, Appellant.
    No. 45,626-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Paula C. Marx, Louisiana Appellate Project, Walter W. Gerhardt, Indigent Defender Board, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Edward C. Jacobs, Assistant District Attorneys, Springhill, LA, for Appellee.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   BROWN, Chief Judge.

| defendant, Robert Womack, entered a guilty plea to one count of armed robbery and was sentenced to 30 years at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant now appeals in an effort to have his guilty plea vacated. Finding that the guilty plea was valid, we affirm.

Facts and Procedural History

On January 10, 2001, defendant and two other individuals robbed William Ledger while he was working at the Corner Store located at 6511 Highway 80 East in Bossier Parish. Defendant took both cash and cartons of cigarettes from Ledger’s immediate control through the use of threats and intimidation while armed with a .22 caliber pistol.

On September 12, 2001, defendant pled guilty to armed robbery in reliance on a plea agreement that provided that the state would recommend defendant serve a 80-year hard labor sentence. On that same date, defendant was sentenced to 30 years at hard labor with the first five years to be served without the benefit of parole, probation, or suspension of sentence.

On November 14, 2003, defendant filed an application for Post Conviction Relief (“PCR”) alleging ineffective counsel and that his guilty plea was not voluntary in that he suffered from a medical disorder. Although this PCR was not timely filed, the trial court heard the claims and denied relief as not being supported by the law and evidence.

Several years later, on May 28, 2009, defendant filed a PCR application to correct an illegally lenient sentence. It was denied by the trial |2court. The sentence had been already corrected by the Department of Corrections to show no parole eligibility as defendant was a 3rd offender and that armed robbery carries no parole eligibility. La. R.S. 14:64(B). Inadvertently, this court granted a writ application and remanded for resentencing. The trial court resentenced defendant to 30 years at hard labor without the benefit of parole, probation, or suspension. Defendant has appealed.

Discussion

The sole assignment of error asserted is whether the record of appeal demonstrates defendant’s plea of guilty was entered knowingly and voluntarily with full understanding that the entirety of his sentence would be without parole eligibility. As noted, the voluntariness of the guilty plea had been ruled on in defendant’s first PCR application in 2003, and defendant’s guilty plea was found to have been entered freely and voluntarily.

Knowingly and Voluntarily — Boykinization

A guilty plea is valid if the defendant is advised of and waives a triad of constitutional rights, including his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. State v. Myers, 43, 105 (La.App.2d Cir.03/19/08), 978 So.2d 595, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant’s waiver of his rights must be made expressly and knowingly and the waiver must be apparent from the record. State v. Myers, 43,105 (La.App.2d Cir.03/19/08), 978 So.2d 595, citing State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992).

Anent this case, defendant knowingly, voluntarily, and expressly entered his plea of guilty before the trial court. During a thorough plea colloquy, defendant was advised of his constitutional rights per Boy-kin, and it was determined that defendant knowingly and voluntarily waived his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. In addition, defendant acknowledged that he understood the nature of the charge of armed robbery and that he had the opportunity to discuss the matter with his attorney. Defendant acknowledged that no one, including the district attorney or any police officer, made any promises to him in an effort to persuade him in pleading guilty.

Reliance on Plea Agreement

The Louisiana Supreme Court interpreted State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982), by stating that “a guilty plea has been found to be constitutionally infirm when the state does not fulfill an express or implied part of the plea bargaining agreement which precipitated defendant’s decision to so plead.” State v. Hayes, 423 So.2d 1111 (La.1982). In LaFleur the record showed that defendant would not have pled guilty if he had known of his ineligibility for parole or probation.

Here, the opposite is apparent from the record. The trial judge, taking note of the plea agreement, offered the following question during the plea colloquy:

|4It is my understanding, Mr. Womack, that there’s a plea offer in this matter. And in exchange for your plea, the state is recommending that you receive a thirty (30) year hard labor sentence. You understand that?

Mr. Womack answered in the affirmative. The trial court judge then allowed for defendant to be sure of his answer by asking, “Is that your understanding of the agreement?” and Mr. Womack, again, responded in the affirmative.

This was not an agreed to sentence but only involved a recommendation by the prosecution that was not binding on the court. Defendant, during the plea colloquy and under oath, acknowledged twice that he understood the sentencing recommendation as being 30 years at hard labor. Defendant’s final sentence was for 30 years at hard labor without the benefit of parole. Therefore, defendant does not have a meritorious argument for vacating his plea agreement based on his reliance on a plea agreement as seen in LaFleur.

Failure to Inform of Parole Eligibility

La. C. Cr. P. art. 556.1 requires that the trial court inform defendant of the nature of the charge(s) to which the plea is offered and the minimum and maximum penalties provided by law. However, any variance from the procedure required by La. C. Cr. P. art. 556.1 that does not affect the substantial rights of defendant shall not invalidate the plea. State v. Warren, 42,699 (La.App.2d Cir.10/24/07), 968 So.2d 909, writ denied, 07-2485 (La.05/16/08), 980 So.2d 707, citing La. C. Cr. P. art. 556.1(E); State v. Honeycutt, 41,601 (La.App.2d Cir.02/28/07), 953 So.2d 914; State v. 5Goins, 40,364 (La.App.2d Cir.01/25/06), 920 So.2d 375, writ denied, 06-1097 (La.11/09/06), 941 So.2d 38.

In this case, the trial court judge informed defendant that by pleading guilty he may be subjecting himself to a 99-year sentence. Defendant assured the trial judge that he understood the nature and consequences of the offense and that he had spoken with his attorney regarding the charged offense. Furthermore, the prosecutor’s recommendation of a 30-year sentence at hard labor was discussed and understood by defendant through his own admission.

The trial court’s failure to inform defendant of any potential parole ineligibility associated with his sentence was not a material factor in defendant’s decision to plead guilty. First, defendant’s decision to plead guilty cannot be said to have been induced by the expectation of parole. In fact, the eligibility of parole seems to only have entered defendant’s mind as a method to avoid the untimeliness of a PCR application.

By pleading guilty defendant avoided a possible additional 69 years in prison. The evidence is overwhelming against defendant; in addition to defendant’s confession, there are surveillance tapes showing defendant committing the crime. Based on the above, defendant’s rights were not substantially harmed and the eligibility of parole does not appear to have been a material factor in defendant’s choice to plead guilty. Therefore, the guilty plea will not be vacated on those grounds.

| fi Conclusion

Under the facts and circumstances of this case, we do not find that defendant’s guilty plea should be vacated.

AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Roy Anthony SINCLAIR, Appellant.
    No. 45,625-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Louisiana Appellate Project, by Mark 0. Foster, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Hubert Russell Davis, Tammy Lenn Gantt Jump, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

|, Ray Anthony Sinclair was convicted of second degree murder and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals. We affirm in all respects.

FACTS

In the early evening of July 19, 2001, Charles Smith was violently attacked in the small store he operated next to his Arcadia home. A neighbor, Lenest Roberson, saw the defendant leaving Smith’s store. As she approached the store, she began screaming when she saw Smith bleeding profusely from his head. Another neighbor, Mary Wilks Kilgore, heard the commotion, and could see Smith holding his head. She called 9-1-1 while Roberson stayed with the victim. She then joined Roberson and Smith, asking him who had hurt him. Smith identified his assailant only as the grandson of Mary Louise Sampson. This defendant is her grandson.

The victim was transported to Lincoln General Hospital by paramedics where he was treated by Dr. Benson A. Grigsby for approximately two hours. During his treatment, Dr. Grigsby determined that Smith had suffered blunt force trauma to the head, resulting in the fracture of most of his facial bones. Because of the severity of the injuries and the limited capabilities of Lincoln General Hospital, Dr. Grigsby had Smith transported to LSU Health Sciences Center in Shreveport. Just before arriving at LSU, Mr. Smith suffered a cardiac arrest and registered no vital signs. The trauma team at LSU was able to resuscitate him, but he never regained consciousness or cognitive function. He underwent a tracheotomy 12to facilitate breathing on a ventilator and for the insertion of a percutaneous endoscopic gastros-tomy (PEG) tube into his stomach for feeding with liquids. His demolished left eye was surgically removed.

Two weeks later, Smith was transferred to the Health South Rehabilitation Hospital in Ruston, where he remained in a vegetative state until his discharge on October 11, 2001, to the Town and Country Nursing Home in Minden, Louisiana. Seven days after arriving at the nursing home, Smith developed pneumonia and was admitted into the Minden Hospital, where he died on October 27, 2001. According to Dr. Frank Peretti, a forensic pathologist, Smith’s death was the result of “multiple medical complications” related to the attack.

Michael Wright, a member of the Arcadia Police Department, was the first officer on the scene and had been able to briefly speak to the victim before his departure by ambulance. Wright indicated that the victim had identified his assailant only as Mary Louise’s grandson, but that other witnesses claimed he had specifically identified the defendant.

Early on July 20, 2001, Sinclair turned himself in. He was booked by Gary White, an officer with the Arcadia Police Department, who read Sinclair a Miranda rights form. Sinclair signed the document, confirming his understanding of his rights, and indicating that no pressure, promises, threats, or inducements had been applied. No interrogation followed at that time.

| sHours later, Deputy Randy Price of the Bienville Parish Sheriffs Office interviewed Sinclair, first explaining to him his rights. Sinclair provided a written exculpatory statement, denying having been in the store on the date of the attack.

Arcadia Chief Victor Rogers, and Arcadia Police Officer Wright, testified that they interviewed Sinclair on the morning of Monday, July 23, 2001. Both testified that Chief Rogers recited Sinclair’s rights to him, that he understood and waived them. They also denied that any promises or threats were made to Sinclair in an effort to coerce a statement. Both officers testified that at this time there was no discussion of the crime’s penalties. Sinclair admitted his involvement in the crime. Rogers terminated the interview and advised Price that Sinclair was ready to give a statement.

Price explained Miranda, after which Sinclair signed a rights form acknowledging his understanding of those rights, and his willingness to proceed. Sinclair confessed, admitting beating Smith with his hands and then with a pistol.

On January 31, 2002, a Bienville Parish Grand Jury indicted Sinclair for the first degree murder of Charles Smith, alleging a crime date of July 19, 2001.

|4On January 27, 2003, Sinclair filed a motion seeking appointment of a sanity commission. Following a sanity hearing on August 19, 2003, the trial court determined that Sinclair was competent to stand trial.

On December 7, 2004, Sinclair filed a motion to suppress the statements given by him on July 20 and 23, 2001. The motion came for hearing on January 11 and 17, 2006.

After hearing the testimony, defense counsel conceded that Sinclair had no basis for seeking exclusion of the July 20, 2001, written statement since he had been properly advised of his rights and the statement was not inculpatory.

As to the July 23, 2001, confession, the trial court found that Sinclair’s confession was lawful, predicated upon the testimony of Rogers and Wright, as well as defendant’s own signature on the rights form. Accordingly, the trial court denied the motion to suppress. At the conclusion of the hearing and after consulting with counsel, the court set the matter for trial on May 15, 2006.

This trial date somehow went away, and on March 30, 2006, the state filed a motion and order setting the matter for trial on August 21, 2006. On July 26, 2006, the trial court granted Sinclair’s motion for a continuance.

■ On January 29, 2007, the state sought and obtained another order setting the matter for jury trial, this time on May 21, 2007. Defense counsel filed yet another motion to continue the trial. The trial was reset for August 13, 2007.

|sOn May 30, 2007, Sinclair filed a letter in the district court informing the court that he had “fired” his counsel, Joseph Clark, for ineffectiveness. The letter also informed the court he could not afford retained counsel and asked that new counsel from the Indigent Defender’s Office be appointed to represent him. On June 11, 2007, Sinclair filed a pro se motion to quash the prosecution for the state’s failure to abide by the time limitations for commencement of trial after institution of prosecution. Judge Fallin denied the motion that same date on the basis that he would not entertain pro se motions so long as the defendant had counsel of record.

On the same day he denied the motion to quash, Judge Fallin issued an order setting a hearing for July 10, 2007, on the defendant’s request to terminate counsel. At the hearing, the court was informed by defense co-counsel, Clay Carroll, that Sinclair had agreed that Carroll would handle the guilt phase of the case and Clark would handle the sentencing phase, should there be one. Sinclair then withdrew his motion to terminate Clark.

On February 19, 2008, the court once again set the matter for jury trial, this time on June 16, 2008. On March 4, 2008, the state amended the indictment to reduce the charge to second degree murder. On the day trial was set to commence, defense counsel filed a motion to continue and a motion to quash on the basis that the state .failed to timely commence trial after the institution of prosecution. The trial date was continued and the motion to quash came for hearing on July 9, 2008. After argument by counsel, the trial court found that the time limitation for commencing trial had not run and denied the motion to quash.

IfiThe jury trial was then rescheduled twice, first on September 15, 2008, and then on February 17, 2009, each trial date later being continued at the defendant’s request. Sinclair was finally tried before a jury on September 21 through 24, 2009. After hearing all the evidence, the jury found Sinclair guilty of second degree murder.

Sinclair filed motions for post-verdict judgment of acquittal and new trial, both of which were denied. Sinclair was sentenced on November 4, 2009, to life imprisonment at hard labor without benefits. This appeal followed.

DISCUSSION

Did the trial court err in not granting defendant’s motion to quash, which motion was based upon the state’s alleged failure to timely commence trial?

Argument

Sinclair argues that the trial court erred in considering two of his actions as “preliminary pleas,” which served to suspend the time limitations found in La. C. Cr. P. art. 578.

Sinclair argues that a defendant’s efforts to secure counsel do not toll the time limitations of La. C. Cr. P. art 578. In addition, while motions to quash do customarily suspend the time limitation, his motion was not considered on its merits and thus could not have legitimized a delay in prosecution.

The state argues only that at no point after the expiration of the three years for bringing Sinclair to trial did more than a year elapse after ^disposition of defense-filed preliminary pleas, each of which interrupted prescription. The state does not argue the merits of whether Sinclair’s pro se efforts to terminate his counsel or quash the prosecution should be deemed as preliminary pleas.

Law

Our law on temporal limitations on trial is well settled.

\xAnalysis

The only period at issue in the present case is the one year and one month that elapsed between the trial court’s May 9, 2007, order granting the defendant a continuance of the May 21, 2007, trial date and defense counsel’s filing of motions to quash and for a continuance on June 16, 2008. During this period, the only potential prescription-interrupting events were: (1) Sinclair’s May 24, 2007, filing of a letter informing the court that he had terminated his court-appointed counsel and was seeking the appointment of new counsel, and (2) Sinclair’s June 11, 2007, filing of a motion to quash |9based on the state’s failure to bring him to trial within the delays set forth in La. C. Cr. P. art. 578.

Sinclair argues that neither of these events served to suspend the running of the Article 578 delay. As to the motion to quash, Sinclair concedes that Article 580 expressly identifies such motions as preliminary pleas which interrupt prescription, but argues that because his motion was not considered on its merits and was denied on the same day it was filed, it is an exception to the rule.

The proffered authority for this proposition is State v. Van Dyke, 03-437 (La.App. 3d Cir.10/1/03), 856 So.2d 187, writ denied, 03-2777 (La.2/13/04), 867 So.2d 689, though this case actually makes no such assertion. In Van Dyke, the defendant was originally indicted on a charge of first degree murder in October of 1996. That indictment was quashed on May 23, 2002, on the basis that one of the grand jurors was not qualified to serve. The defendant was re-in-dieted on a charge of second degree murder, which he sought to quash on the basis of an Article 578 time violation. In granting the motion to quash, the trial court erroneously conducted a review of the elapsed time since the original 1996 indictment, making the following observation:

On March 27th, defendant filed several motions, discovery motion, a Motion for Production of Exculpatory Evidence, and a Motion and Order for Disclosure of Police Report, the initial report. The Code of Criminal Procedure provides suspension of prescription during the time it takes for the Court to rule on these motions. Under Article 580 suspension of time and time limitations where defendant files a Motion to Quash, or other preliminary plea, to run a period of limitation established by 578 shall be suspended until the ruling of the court thereon; but | inin no case shall the State have less than one year after the ruling to commence the trial.
The motions listed above should not be construed as “preliminary pleas” for the purposes of suspension. In addition to the Motion to Quash, Motions for Continuance or for hearings by the defendant are the common examples of defense actions that bring about suspension under that article. Here a judge signed the order the same day the motions were filed, thus suspension did not occur.

The appellate court reversed the trial court on the basis that the state had two years from the defendant’s re-indictment to bring the defendant to trial, barring any interruption or suspension of the time delay. The appellate court neither agreed nor disagreed with the trial court’s statement about whether the signing of a preliminary plea on the same day that it is filed serves to suspend prescription.

We find no authority that the denial of a pro se motion to quash (on the basis that it was not filed or adopted by enrolled counsel) fails to suspend prescription. The trial could not have started with this motion pending.

In any event, this issue is mooted by the substitution of counsel on July 11, 2007, less than two months from the previously continued trial date of May 21, 2007 (a continuance sought by defense counsel). The fact that the matter was resolved on July 11, 2007, and the trial court informed of the resolution on that date, does not change the fact that at least until the request for new counsel was withdrawn, prescription had been suspended and the state had a year to bring the defendant to trial. The state tried to do just that by having the matter set for trial on June 16, 2008, which date was also continued at the request of the defendant.

InA review of the record in this matter clearly indicates that during any periods in which Sinclair did not have a pending motion for a sanity commission, a motion to suppress evidence, or a motion to quash the prosecution, the state consistently moved to set the matter for trial, but all settings were continued at Sinclair’s request. Since all of these filings are preliminary pleas which suspend the running of the time limitation, the state had one year from July 11, 2007, to proceed to trial. La. C. Cr. P. art. 580. The trial commenced timely, and the trial court properly refused to quash the prosecution.

Did the trial court err in not suppressing Sinclair’s July 23, 2001, statement?

Argument

Sinclair argues that the trial court erred in denying the motion to suppress his confession because:

• he had invoked his right to remain silent with two different law enforcement officers before making inculpato-ry statements to Chief Rogers; and
• Chief Rogers never determined whether the right to remain silent was invoked.

The state argues that the defendant mis-characterizes the record and that the defendant never invoked his right to remain silent.

Law

Our law on the admissibility of confessions is well settled.

_[¿2Analysis

The boilerplate motion to suppress raises the claim that the confession was obtained under the “influence of fear, duress, intimidation, menaces, threats, inducements and or promises, and/or without the defendant having been properly advised of his rights to remain silent and to have counsel appointed to represent him, and or without sufficient understanding of his rights in order to make an intelligent waiver of those rights[.]” Neither this motion nor any objection at trial raised the claim that the confession should be suppressed because it was obtained after the defendant had invoked his right to remain silent.

11sThis is a new basis for the motion to suppress, urged for the first time on appeal, contrary to La. C. Cr. P. art. 841. It should not even be considered.

Even if reviewed on the merits, however, this assignment of error is not supported by the record. Sinclair relies on the testimony of Officer White and Deputy Price, mischaracterizing their testimony as evidence that Sinclair “made it clear he did not want to talk to them” and that his actions in this regard were constitutionally sufficient to invoke his right to remain silent.

White testified at the suppression hearing that he had just started his shift while booking Sinclair, and was unaware of the details of the crime. While he noted that Sinclair did not “appear” to want to make a statement, he never attempted to interview him because he was not familiar with the case.

Price interviewed Sinclair later that morning, again reading the rights to defendant, who signed, agreeing to questioning. Sinclair provided a written statement as to his whereabouts at the time of the crime, denying any involvement. Never did Price testify that Sinclair had “refused to speak about the ease.”

To the extent a defendant’s negative reply to a question about whether he had anything to say about a crime “could not plausibly be understood as an invocation, ambiguous or otherwise, to cut off police questioning in all respects,” as per State v. Robertson, 97-177 (La.3/4/98), 712 So.2d 8, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 |14(1998), then a fortiori, an officer’s subjective belief that a defendant is reluctant to talk about his conduct would also not constitute an invocation of the right to remain silent. Sinclair never said he did not want to speak to the police. When interrogated on three separate occasions, he spoke voluntarily after being advised of his right to remain silent. Accordingly, we reject Sinclair’s argument that he had unequivocally invoked his right to remain silent.

Sinclair also argues regardless of whether the right was invoked, Chief Rogers’ failure to ascertain whether the right had been invoked before questioning him on the morning of July 23, 2001, was a constitutional violation sufficient to warrant suppression of the confession. This argument is rooted in the requirements in Miranda, supra, that statements stemming from custodial interrogation cannot be used unless the prosecution “demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Sinclair argues that an officer must ascertain from sources other than the suspect whether the right against self-incrimination had been invoked. Miranda, however, provides for a reasonable application of this requirement.

11SA defendant’s invocation of his right to silence must be unambiguous. Berghuis v. Thompkins, — U.S. -, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).

Here, Chief Rogers indicated that these safeguards were complied with when he recited Sinclair’s rights to him, and Sinclair waived them. While Sinclair did not confirm this fact due to a failure to “recall,” he did not deny it. Furthermore, Sinclair admitted that on three other occasions he had been informed of his rights and signed statements agreeing to questioning. Sinclair has cited no authority that the failure by a police officer to verify someone else’s recollection that the defendant did not invoke his right against self-incrimination is fatal to the state’s use of a confession. This record does not support a conclusory allegation that Rogers made no efforts to determine whether Sinclair had invoked his right to remain silent. Neither Rogers nor Wright was ever asked whether they had inquired or had any reason to know whether Sinclair had invoked his right to remain silent. While both denied having inquired whether Sinclair had been appointed counsel, which he had not, they both never stated they had any reason to know whether he had invoked his right against self-incrimination. This assignment is meritless.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

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

      . Not surprisingly, Sinclair disagrees with the state’s version of what transpired on the morning of July 23, 2001, when he was interviewed by Rogers and Wright, claiming that Rogers told him that the victim had died and that he would be charged with murder. Sinclair claimed that, conditioned upon his confessing, Rogers offered to lobby for a light sentence on his behalf. Based on these representations, Sinclair asserts that he confessed to a crime he did not commit in order to get a lighter sentence.

      .The July 23, 2001, statement was subsequently admitted into evidence at trial without objection from Sinclair regarding the manner in which it was obtained.

      . Specifically, Sinclair's May 30, 2007, letter attempting to terminate representation by his counsel and his June 11, 2007, pro se motion to quash.

      . La. C. Cr. P. art. 578 provides:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      B. The offense charged shall determine the applicable limitation.
      La. C. Cr. P. art. 580 provides:
      When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.
      For purposes of Article 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Cranmer, 306 So.2d 698 (La.1975); State v. Elfert, 247 La. 1047, 175 So.2d 826 (1965). These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). Joint motions for a continuance fall under the same rule. See State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284.
      In Elfert, supra, the Louisiana Supreme Court held that the delays occasioned by the defendants’ attempts to secure counsel justified continuing trial set only two weeks before prescription was due to expire, whether the defendants themselves moved for a continuance or the court upset the trial date ex pro-prio motu for purposes of effectuating the defendants’ Sixth Amendment right to counsel.
      In State v. Carr, 271 So.2d 871 (La.1973), however, the court qualified its decision in Elfert by holding that a defendant’s efforts to secure counsel do not constitute grounds for suspension of the time limits for trial specified by La. C. Cr. P. art. 578 when they have not "affected the State's efforts to prosecute in any respect.” State v. Carr, at 872. While Carr does not reference Elfert, the main factual distinction appears to be that the Elfert trial was set for two weeks from the time defendant sought to secure new counsel, while the Carr trial was scheduled more than six months out.
      In State v. Brooks, 02-0792 (La.2/14/03), 838 So.2d 778, 783-4, the Louisiana Supreme Court elaborated on the proper considerations to be made in determining whether a defendant’s efforts to secure counsel affect the State’s efforts to prosecute:
      Although a formal motion may not have been filed on that date, and it is not clear from the record when [present counsel] formally enrolled as counsel for respondent, it is clear that the trial court continued the status conference and arraignment set for that day for purposes of providing respondent with the opportunity to substitute counsel for the missing [prior counsel]. The continuance on that date, solely for purposes of effectuating respondent’s Sixth Amendment right to counsel and to accommodate the confusion in the defense caused by [prior counsel’s] baffling disappearance, suspended the running of the time limits because the state’s ability to prosecute the case was actually affected until the matter of representation was settled and respondent again had counsel. Louisiana imposes on a prosecutor the ethical duty to "[m]ake reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel, and has been given reasonable opportunity to obtain counsel ...La. State Bar Ass’n Rules of Professional Conduct, Rule 3.8(b) (emphasis added); see also Model Rules of Prof’l Conduct R. 3.8(b). As a matter of that ethical constraint, the state could not push this case forward until the question of respondent's representation by counsel was settled. [The prosecutor] could not have communicated or bargained directly with respondent regarding her open plea offer while he was ostensibly still represented by [prior counsel] although attempting to retain other counsel, La. Rules of Professional Conduct, Rule 4.2; ... nor, finally, could she have unilaterally set a trial date with any reasonable likelihood it would take place as scheduled to justify the issuing of subpoenas for the state’s witnesses and preparing them for trial....
      Under these circumstances, we conclude that the continuance of the status hearing on June 20, 2000, on respondent's behalf, for purposes of allowing him to substitute other retained counsel for the inexplicably missing [prior counsel], constituted a preliminary plea within the scope of La. C. Cr. P. art. 580 and gave the state at least until June 20, 2001, to bring the case to trial. The trial court therefore properly denied respondent's motion to quash the prosecution.

      . La. R.S. 15:451 provides that before a purported confession can be introduced in evidence, it must be affirmatively shown to be free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. C. Cr. P. art. 703(D) provides that on the trial of a motion to suppress, the burden is on the defendant to prove the grounds of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant. A defendant bears the burden of asserting the basis for his motion to suppress in order to give the state adequate notice so that it may present evidence and address the issue. La. C. Cr. P. art. 703(E); State v. Jackson, 04-1388 (La.App. 5th Cir.5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162.

        When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272. A trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746.
      Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Brown, 434 So.2d 399 (La.1983). See also State v. Johnson, 07-1040 (La.App. 4th Cir.9/10/08), 993 So.2d 326, writ denied, 08-2649 (La.6/5/09), 9 So.3d 868; State v. Jackson, supra. Moreover, articulating a new basis for the motion to suppress for the first time on appeal is prohibited under La. C. Cr. P. art. 841, since the trial court would not be afforded an opportunity to consider the merits of the particular claim. See State v. Cressy, 440 So.2d 141 (La.1983).
      In State v. Robertson, 97-177 (La.3/4/98), 712 So.2d 8, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998), the defendant claimed the trial court erred in admitting his confession because it was the result of police coercion after he had invoked his right to remain silent. The defendant argued that he invoked his Fifth Amendment right to remain silent when he responded “uh uh” to questioning about whether he wanted to say anything more about his involvement. The Louisiana Supreme Court found that the defendant’s indication he had nothing further to say about the crimes did not reasonably suggest a desire to end all questioning or to remain silent. Rather, the defendant’s negative reply, "uh uh,” could not plausibly be understood as an invocation, ambiguous or otherwise, to cut off police questioning in all respects. Instead, the defendant’s willingness to talk to authorities even after the "uh, uh” response was indicated by his continuing to respond to questions and to assert his innocence. The court noted that the defendant never indicated he did not want to speak to the police at all, only that he had nothing to say about the murders. The fact that the defendant continued to speak to police reflected an intent to continue the exchange. Robertson, at 31.

      . "As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Miranda, 384 U.S. at 444-5, 86 S.Ct. at 1612.