author: PICKETT, Judge.

text:
    Judy LYONS v. Ann KNIGHT, Mark Knight, Kelly Knight, and Knight Oil Tools, Inc.
    No. 10-1470.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, Lafayette, LA, for Plaintiff-Appellant, Judy Lyons.
    Cliffe E. Laborde III, Cliff A. Lacour, Lafayette, LA, for Defendants-Appellees, Ann Knight, Mark Knight, Kelly Knight Sobiesk, Knight Oil Tools.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

hThe appellant, Judy Lyons, appeals the judgment of the trial court dismissing her claims against the defendants Ann Knight, Mark Knight, Kelly Knight Sobiesk, and Knight Oil Tools, as prescribed and as an exercise of the defendants’ rights pursuant to La.Code Civ.P. art. 971, and awarding attorney’s fees to the defendants.

STATEMENT OF THE CASE

Judy Lyons was contracted by Ann Knight and Kelly Knight Sobiesk to do interior design work in their primary homes and other residences. This work involved making home improvements and purchasing furnishings and accessories for their homes. Rather than pay Ms. Lyons directly, they instructed her to submit invoices to Knight Oil Tools, Inc., a family corporation that had previously been run by Mrs. Knight’s late husband but was now managed by her son, Mark Knight. In order to keep Mark Knight from knowing that personal work for Mrs. Knight and Mrs. Sobiesk was being paid for by the Knight Oil Tools, Mrs. Knight instructed Ms. Lyons to alter invoices so that they looked like business expenses. Ms. Lyons would turn in invoices to the company’s accounts receivable department, and they would give her an unsigned check for Mrs. Knight to sign. At some point, Ms. Lyons, with or without the permission of Mrs. Knight, began signing Mrs. Knight’s name on the checks. While there is no dispute that Ms. Lyons signed some of the checks, there is no claim that Ms. Lyons did not do the work for which the checks were issued, though there is some dispute about the amounts she charged. Between 2002 and 2005, Ms. Lyons submitted invoices totaling over $600,000.00 for goods and services.

|2In 2005, Mark Knight discovered the payments made to Ms. Lyons. He initiated a criminal complaint with the Lafayette Police Department, alleging that Ms. Lyons had forged signatures on thirty-five checks issued by Knight Oil Tools. In addition to the complaint from Mark Knight, Mrs. Sobiesk swore out an affidavit stating that she had personally paid for furniture invoiced by Ms. Lyons to Knight Oil tools. She also stated that Ms. Lyons had received payments for goods that she never delivered. In addition, Mrs. Knight signed an affidavit stating that Ms. Lyons had forged her signature on thirty-six checks issued by Knight Oil Tools. Based on these allegations, the Lafayette City Police arrested Ms. Lyons on September 13, 2005, and charged her with thirty-two counts of forgery and thirty-two counts of theft by fraud.

The criminal prosecution of Ms. Lyons went to trial on August 25, 2009. At the close of the prosecution’s case, the trial court entered a directed verdict of acquittal. It relied on the fact that Mrs. Knight, in her trial testimony, could not identify any checks that she did not sign. Also, the trial court found that there was no intent to defraud as required for a criminal conviction for forgery.

On February 2, 2010, Ms. Lyons filed a Petition for Damages against Mrs. Knight, Mark Knight, Mrs. Sobiesk, and Knight Oil Tools, Inc., alleging malicious prosecution and defamation. In response, the defendants filed an Exception of Prescription and Special Motion to Strike. A hearing on the exception and the motion to strike were held on April 26, 2010. At the hearing, the trial court indicated that it would grant the exception of prescription as it related to the claims of defamation. The court found that the statements Ms. Lyons claimed were defamatory were made in 2005, and the one-year prescriptive period had clearly run. The trial court took the issue of the special motion to strike under La. Code Civ.P. art. 971 under advisement. IsOn May 11, 2010, the court issued written reasons granting the motion to strike. In a judgment rendered on August 23, 2010, the trial court signed a judgment dismissing Ms. Lyons’ claims of defamation on the basis of prescription; striking the claims for malicious prosecution pursuant to La. Code Civ.P. art. 971; and awarding attorneys’ fees pursuant to La.Code Civ.P. art. 971(B) in the amount of $10,000.00.

Ms. Lyons appeals this judgment.

ASSIGNMENT OF ERROR

Ms. Lyons asserts two assignments of error:

1. The trial court erred in granting the Special Motion to Strike, dismissing the claim for malicious prosecution, and awarding attorneys’ fees and costs to the defendants.

2. The trial court erred in granting the Exception of Prescription and dismissing the defamation claims.

DISCUSSION

Are the Defamation Claims Prescribed?

In her second assignment of error, Ms. Lyons argues that the trial court erred in granting the peremptory exception of prescription. An exception of prescription is a peremptory exception. La. Code Civ.P. art. 927. Defamation is a delictual action subject to a one-year liber-ative prescription. La.Civ.Code art. 3492. Here, the claims for defamation were based on the information provided by Mark Knight to the Lafayette Police Department in August and September 2005, an affidavit executed by Mrs. Sobiesk on September 7, 2005, and an affidavit executed by Mrs. Knight on September 8, 2005. Mrs. Lyons filed her petition for damages on February 2, 2010. Thus, on the face of the pleadings, the claims for defamation have prescribed. The supreme court discussed the burden of proof for prescription claims in Carter v. Haygood, 04-646, pp. 8-9 (La.1/19/05), 892 So.2d 1261, 1267:

|4Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo, 01-2702 at p. 7, 828 So.2d at 508; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993). If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-83.

As Ms. Lyons’ claim for defamation was prescribed on the face of her petition, the burden shifted to her to show that her defamation claims did not prescribe. To satisfy this burden, Ms. Lyons argued in the trial court that the prescriptive period was suspended during the pendency of the criminal action initiated by the defamatory statements made by the defendants. The trial court found that the criminal action against Ms. Lyons did not suspend prescription, and dismissed her defamation claims.

Louisiana courts have consistently held that an action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553, 561 (1959); Nolan v. Jefferson Parish Hasp. Serv. Dist. No 2, 01-0175, p. 8 (La.App. 5 Cir. 6/27/01), 790 So.2d 725, 730; Ballex v. Naccari, 95-0057, p. 2 (La.App. 4 Cir. 6/7/95), 657 So.2d 511, 512; Grant v. Politz, 575 So.2d 915, 917 (La.App. 2 Cir.1991); Thomas v. Mobley, 118 So.2d 476, 483 (La.App. 1 Cir.1960). See also Justice Watson’s concurrence in Union Serv. & Maint. Co., Inc. v. Powell, 393 So.2d 94, 99 (La.1980). This rule allows the underlying litigation to proceed in an orderly manner, without the issue of defamation present. Ortiz v. Barriffe, 523 So.2d 896, 898 (La.App. 4 Cir.), writ denied, 531 So.2d 273 (La.1988); Calvert v. Simon, 311 So.2d 13, 17 (La.App. 4 Cir.1975).

Simpson v. Perry, 08-116, p. 3 (La.App. 1 Cir. 7/14/04), 887 So.2d 14, 16 (footnote omitted).

|fiIn this case, the statements which Ms. Lyons claims are defamatory were made by the defendants to law enforcement officers for the purpose of initiating a criminal prosecution. These statements became the basis of a criminal prosecution filed by the state against Ms. Lyons. While acknowledging that prescription would be suspended if the statements were made during a civil case, the defendants argue that the statements were not made in connection with a judicial proceeding, or that the defendants were not a party to the criminal prosecution, and thus prescription was not suspended or interrupted. In support of their position, they cite Doughty v. Cummings, 44,812, (La.App. 2 Cir. 12/30/09), 28 So.3d 580, writ denied, 10-251 (La.4/9/10), 31 So.3d 394.

In Doughty, the plaintiff, a former bank employee, sued his former employer bank and its president for defamation and malicious prosecution. The president of the bank had reported to an insurance adjuster and later federal authorities that the plaintiff had colluded in a fraud scheme with a bank client’s employee in 2003. The plaintiff was indicted in 2006, but the charges were dismissed on April 1, 2008. The plaintiff filed his suit on June 13, 2008. The second circuit held that the claim for defamation had prescribed, stating:

The defamation claim is prescribed on the face of the petition. The statement to the insurance agent was made in 2003, and although the petition does not announce precisely when applicants made federal authorities and bank regulators aware of their accusations of fraud and defalcation by Doughty, presumably this occurred well prior to the 2006 indictment.
Doughty contends that prescription on the defamation claims was interrupted during the pendency of the federal criminal proceedings. An action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. Waguespack v. Judge, 04-137 (La.App. 5th Cir.6/29/04), 877 So.2d 1090; Nolan v. Jefferson Parish Hospital Service District No. 2, 01-175 (La.App. 5th Cir.6/27/01), 790 |fiSo.2d 725. However, that principle is not applicable in this matter as the statements were not made in a judicial proceeding, but prior to any proceeding.
The trial court found that the indictment had the effect of republishing the defamatory statements. Even if we accept this premise, we note that the suit was filed more than one year after the indictment was handed down. Accordingly, Doughty’s defamation claims have prescribed, and the trial court erred in concluding otherwise.

Id. at 584.

In Union Service & Maintenance Co., Inc. v. Powell, 393 So.2d 94, 98-100 (La.l980)(footnotes omitted), Justice Watson penned a concurrence that explained the state of the law as it relates to defamation in a judicial proceeding:

There is a conflict in the circuits on the question of whether a party allegedly libeled in the pleadings of a lawsuit can sue for that libel prior to termination of the suit. Marionneaux v. King, 331 So.2d 180 (La.App. 1 Cir. 1976); Coleman v. Kroger Co., 371 So.2d 1186 (La.App. 1 Cir.1979), writ refused 372 So.2d 1041; Lees v. Smith, 363 So.2d 974 (La.App. 3 Cir.1978); Calvert v. Simon, 311 So.2d 13 (La.App. 2 Cir. 1975); and Viera v. Kwik Home Services, Inc., 266 So.2d 732 (La.App. 4 Cir.1972), writ refused, judgment not final, [263 La. 368,] 268 So.2d 258 [ (1972) ].
Because LSA-C.C.P. art. 1061 does not require connexity between the principal and reconventional demands, Viera decided that a libel claim can be brought by reconventional demand in the suit containing the alleged libel. Viera is not without precedent. Sabine Tram Co. v. Jurgens, 143 La. 1092, 79 So. 872 (1918) allowed a reconventional demand for libel in a suit alleging fraud without discussion of the termination requirement. There the question of fraud was apparently decided by judgments in separate suits before the reconventional demand was considered. See also Pelletier v. Pugh, 16 La.App. 693, 132 So. 769 (1931) and Story v. Martin, 217 So.2d 758 (La. App. 4 Cir.1969). However, most of the Louisiana authorities state that the suit alleged to contain the libel must be brought to a conclusion before damages can be claimed by a party to the suit. See, for example, Manuel v. Deshotels, 160 La. 652, 107 So.2d 478 (1926); W.B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663 (1911); Loew’s, Incorporated v. Don George, Inc., 237 La. 132, 110 So.2d 553 (1959); Marionneaux v. King, supra; Coleman v. Kroger Co., supra; Lees v. Smith, supra; Calvert v. Simon, supra. In a per curiam denial of rehearing, the Viera court indicated that its ruling does not discourage |7valid claims because relevant statements in judicial proceedings “... cannot form the basis of a libel action.” 266 So.2d at 737.
Every other jurisdiction in the United States recognizes an absolute privilege for relevant defamatory matter published in judicial pleadings when the court has jurisdiction of the suit. The privilege allows prospective litigants access to courts of justice with no fear of a counterclaim for libel. See 38 A.L.R.3d 272, § 3; 50 Am.Jur.2d § 238; Prosser Torts 4th Ed. pp. 777-781; and 53 C.J.S. § 104.
Some Louisiana cases indicate an absolute privilege for pertinent matters published in a judicial proceeding by one of the parties but these are in the minority. Gardemal v. McWilliams, 43 La. Ann. 454, 9 So. 106 (1891) is an example of the genre and shows common law influences. This view was rejected in later cases: Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708 (1906) specifically repudiated the idea that material matters are necessarily privileged. Cotonia v. Guglielmo, 176 La. 421, 146 So. 11 (1933) points out that: “... litigants must be careful to see that they have probable cause.” [H.R. Hayes Lumber Co. v. McConnell, 176 La. 431,] 146 So. 14 [ (1932) ].
The Louisiana rule is unique. In Louisiana, alone, relevant written allegations in judicial proceedings can form the basis for a libel action, if false, malicious and made without probable cause. Gosserand v. Gumbel, 154 La. 537, 97 So. 852 (1923); Oakes v. Alexander, 135 So.2d 513 (La.App. 2 Cir.1961), writ denied; Wimbish v. Hamilton, 47 La.Ann. 246,16 So. 856 (1895); Sunsen v. Shapiro, 138 So.2d 661 (La.App. 4 Cir.1962); Waldo v. Morrison, 220 La. 1006, 58 So.2d 210 (1952). Allegations may be material but false and actionable. Lescale, supra; Cotonio, supra.
The distinction drawn in Viera between suits for malicious prosecution and those for libel is unsound. See Giordano v. Tullier, 139 So.2d 15 (La. App. 4 Cir.1962); the comment by Professor Wex S. Malone at 15 La.Law Rev. 314; Acme Stores, Inc. v. Better Business Bureau, 225 La. 824, 74 So.2d 43 (1954); and 12 Stone-La. Tort Doctrine, p. 238. Both actions are based on fault produced damage under Civil Code art. 2315. There is little to distinguish them.
Opinions prior to Viera had noted the appeal of the arguments favoring simultaneous trial of the merits and contingent libel issues. Robinson Mercantile Co. v. Freeman, 172 So. 797 (La.App. 1 Cir.1937). However, Judge Boutall’s dissent in Viera states the better view: “... it is an essential ingredient to the cause of action that there be a termination of the case in which the allegedly libelous statements appear ...”. 266 So.2d at 736.
Well summarized in Calvert v. Simon, supra, is the reason for the rule:
1 ¿‘Louisiana law permits recovery by a party damaged by libelous statements made without probable cause and with malice by another party in a judicial proceeding, but consistent with orderly procedure and the concept of unhampered expression in the course of litigation, requires the party claiming such damage to await the determination of the original proceeding. Although the outcome of the original proceeding may not necessarily determine the issue of whether a party thereto can subsequently recover for libelous statement made therein, in most cases the outcome of the original suit will have a strong bearing on determination of that issue.” 311 So.2d 17.
Allegations of fraud may be proven at trial, incidentally deciding the question of defamation. See, for example, Russo v. Kelly, 228 So.2d 736 (La.App. 4 Cir. 1969), writ denied, 255 La. 472, 231 So.2d 392. Compare Dunn v. Southern Ins. Co., 116 La. 431, 40 So. 786 (1906). Premature trial of such thorny issues should be avoided. It may develop that
trial is never necessary. The truth of defamatory statements is a statutory defense. LSA-R.S. 13:3602.
The Louisiana Constitution of 1974 guarantees redress for defamation injury in Art. 1, § 22:
“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”
Louisiana has an exceptional approach to defamation in judicial pleadings. The protection extended to a libeled party is broader than that in any other jurisdiction. The only limitation is termination of the suit containing the libel, and this requirement only prevails when the injured person is also a party to the suit. Monier v. Fontenot, 165 So. 481 (La. App. 1 Cir.1936); Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708 (1906). A party to a suit can insist that it be brought to trial, move for summary judgment or otherwise protect himself against delay. It is only when the complainant is a party to the proceeding and has “... a voice in bringing it to its termination,” that a defamation action must await that termination. Monier v. Fontenot, 165 So. 481 at 483.
Viera erred not in allowing the demand by reconvention but in allowing it at all prior to termination of the suit. The purpose of requiring an end to the initial litigation is obvious. A trier of fact who is trying to resolve conflicting claims should not have the further burden of deciding at the same time whether defamation is involved in the pleadings of one party or the other.
1 ¡/Those who labor daily in the law often do not realize the impact of a suit on the average layman. John Citizen when named a defendant usually reacts with a desire to sue for the insult. However, by the conclusion of trial, his temper has generally cooled and he is happy to be free of the court system. Encouraging a countersuit for defamation in each and every lawsuit discourages legitimate claims and burdens the courts unnecessarily.

We note that defamation is only actionable if it is made in affidavits or in pleadings before the court. Louisiana Revised Statutes 14:50(2) affords a witness in a judicial proceeding absolute immunity from prosecution for defamation where the statement is “reasonably believed by the witness to be relevant to the matter in controversy.” In the instant case, though, the testimony of the defendants at trial, especially Mrs. Knight, conflicted in part with her original affidavit. These inconsistencies led, in part, to Ms. Lyons’ acquittal. Ms. Lyons is suing for the alleged libel contained in the affidavits of the defendants which were confected for the purpose of initiating a criminal prosecution.

We find that prescription was suspended during the pendency of the criminal trial against Ms. Lyons. The defendants published the allegedly defamatory statements in affidavits directed to the Lafayette Police Department, which affidavits resulted in Ms. Lyons’ criminal prosecution. To the extent that the second circuit in Doughty relied on the fact that the statements made to an insurance adjuster outside of the context of a judicial proceeding, we find that case distinguishable. The trial court erred as a matter of law in finding the claims for defamation prescribed, and the defamation claims against the defendants are reinstated.

Are the provisions of La.Code Civ.P. art. 971 applicable?

Louisiana Code of Civil Procedure Article 971 states:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech launder the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(8) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.
C. The special motion may be filed within sixty days of service of the petition, or in the court’s discretion, at any later time upon terms the court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.
D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
| n(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) “Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in reeonvention.

“Because the granting of a special Motion to Strike Pursuant to La.Code Civ.P. art. 971 involves issues of law, we will conduct a de novo review of the trial court’s application of the law.” Aymond v. Dupree, 05-1248, p. 5 (La.App. 3 Cir. 4/12/06), 928 So.2d 721, 726, writ denied, 06-1729 (La.10/6/06), 938 So.2d 85.

The language of the article clearly states that the special motion to strike is applicable only to a petition or reconven-tional demand against a person “arising from any act of that person in furtherance of the person’s right of petition or free speech.... in connection with a public issue[.]” The article further clarifies the issue by defining an “[a]et in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” in subsection F(l). We note that the speech must be on a matter of “public concern.” As noted by our supreme court in footnote six in Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 9 (La.7/10/06), 935 So.2d 66% 677:

|12The Supreme Court has described speech on matters of public concern as speech “relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Whether speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the entire record. Id., 461 U.S. at 147-148, 103 S.Ct. at 1690.

This case is not about any issue of public concern. It involves a person with whom a private corporation and private citizens had a business relationship allegedly failing to perform work or provide services in exchange for the money she received. In Kennedy, the employees of a fast food restaurant believed that a patron tried to pay with counterfeit currency, and the supreme court held that “the suspected distribution of counterfeit currency in the community is a matter of public concern, as it is an issue about which information is appropriate and needed, and in which the public, and particularly the business community, may reasonably be expected to have a legitimate interest.” There is no similar public interest involved in this case. It is a private matter between private interests that does not implicate the public.

Similarly, Darden v. Smith, 08-1144 (La.App. 3 Cir. 6/30/04), 879 So.2d 390, writ denied, 04-1955 (La.11/15/04), 887 So.2d 480, is distinguishable. In that case, the plaintiff alleging defamation was a public official, a police juror, and the statements at issue in the plaintiffs suit related to the decision-making process of the police jury.

We find that there is no public issue in this case as required for the special motion to strike under Article 971 to be applicable. We therefore reverse the judgment of the trial court striking Ms. Lyons’ claims for malicious prosecution and awarding attorney’s fees and costs.

| ^CONCLUSION

For the reasons assigned, the judgment of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion. Costs are assessed to the defendants-appellees.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Mary Lu Doucet HARDEE v. CITY OF JENNINGS.
    No. 10-1540.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    See also, 961 So.2d 531.

      Michael B. Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Mary Lu Doucet Hardee.
    Joy C. Rabalais, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendant/Ap-pellee, City of Jennings.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 This appeal arises out of a judgment rendered in conjunction with a motion to compel discovery filed by the defendant, the City of Jennings (the City), ordering the plaintiff, Mary Lu Doucet Hardee (Hardee), to pay the City $750.00 in attorney fees. Hardee appeals, arguing that the workers’ compensation judge (WCJ) erred in awarding attorney fees as part of its grant of the motion to compel. The City answers, asserting that Hardee’s appeal is frivolous. For the following reasons, we reverse the portion of the trial court judgment awarding the City attorney fees. We decline to award the City damages for frivolous appeal under the circumstances of this case.

FACTS AND PROCEDURAL HISTORY

This workers’ compensation matter stems from injuries Hardee sustained in January 1993, while working as a police officer for the City when she attempted to restrain a prisoner. The current dispute arose in March 2010, when the City noticed that Hardee had filed a 1020 statement reporting that she was receiving $234.99 per week of “unemployment insurance benefits.” The City propounded several discovery requests to Hardee’s counsel on March 3, 2010, to clarify what benefits Hardee was receiving. Counsel for the City wrote to Hardee’s counsel on March 29, 2010, seeking a Rule 10.1 Conference. When no responses were received by April 6, the City filed a motion to compel; the motion included a request for $1,500.00 in attorney fees and reasonable expenses. The motion was set for May 10, 2010. Hardee’s counsel did not appear at the hearing. According to the hearing transcript, counsel for the City told the WCJ that she and opposing counsel had discussed the matter one |2week prior and that opposing counsel had verbally answered some of the City’s discovery requests, but she had requested that opposing counsel answer the discovery in verified form. Counsel for the City explained that she had again spoken with opposing counsel earlier that morning and that he expressed to her his understanding that she had agreed to “pass” on the hearing. Counsel for the City denied that she had made any such representation and went forward with the motion to compel.

A written judgment was rendered on May 14, 2010, granting the City’s motion to compel, directing Hardee to answer the discovery within ten days of the hearing and awarding the City $750.00 in attorney fees for having to file the motion. Hardee timely filed a motion for new trial on the issue of attorney fees, asserting that the judgment was contrary to the law and the evidence presented at the hearing because her counsel “understood that the motion was being passed, as defendant was given the answers to the interrogatories over the telephone.”

Hardee’s motion for new trial was heard on August 5, 2010. Counsel for Hardee called opposing counsel to testify at the hearing. Counsel for the City admitted that she had spoken to Hardee’s counsel prior to the May 10, 2010 hearing and that he had explained that the amount Hardee had listed as unemployment benefits was actually her weekly compensation benefits, less a ten percent attorney fee. The City’s counsel further admitted that she had the answers to all of the outstanding interrogatories, albeit not in verified form, prior to the hearing. With regard to the City’s request for production of documents, Har-dee’s counsel had explained to her that because Hardee lived in the State of Washington, it would take a while for him to get the form for release/authorization of employment and personnel records to Har-dee for signature and back to the City for review. She admitted that Rduring that first telephone conference, she had told Hardee’s counsel something to the effect of, “if I get the answers before the hearing, I am going to make it go away.” Finally, when asked whether there was any question in her mind as to whether she thought Hardee’s counsel believed the hearing was going to be passed or continued, counsel for the City responded, “I don’t believe you blew off the hearing. I do believe that you thought it was passed.”

In argument to the WCJ, Hardee’s counsel stated that he told opposing counsel to proceed with getting an order to compel since she was at court but that he had not consented to her seeking an award for attorney fees and that she had not indicated that she was going to press the WCJ to make such an award.

At the end of the hearing, the WCJ stated that it had not heard anything that it had not already heard at the original motion to compel hearing. He then remarked that in order to reverse its prior attorney fee award, it “would almost have to find that [counsel for the City] is just not telling the truth.” Thereafter, the WCJ denied Hardee’s motion for new trial. Hardee now appeals, alleging that it was error for the WCJ to award attorney fees under the circumstances and that counsel for the City failed to present proof of her expenses so as the justify the $750.00 award. The City answered the appeal, alleging that Hardee’s appeal is frivolous and requesting that the judgment be affirmed; that she be awarded additional attorney fees for defending this appeal; and that Hardee be cast with costs of the lower court and of this appeal.

DISCUSSION

Were Attorney Fees Properly Awarded?

In Garza v. International Maintenance Corp., 97-317, pp. 2-3 (La.App. 3 Cir. 10/29/97), 702 So.2d 1021, 1023, this court stated:

14A party to litigation may apply to a court for an order compelling discovery when another party fails to answer properly propounded interrogatories or requests for production. La.Code Civ.P. art. 1469(2). The discovery articles grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or to obey an order compelling discovery. The decision whether to grant relief against a recalcitrant party rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. LeJeune v. Lafayette Tower Service, 94-1240 (La.App. 3 Cir. 4/5/95), 653 So.2d 112.
If the motion is granted, the court shall “after opportunity for a hearing,” require the party whose conduct necessitated the hearing or his attorney or both to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. La.Code Civ.P. art. 1469(4).

In support of her claim that the WCJ erred in awarding the City attorney fees in conjunction with the motion to compel, Hardee relies on Crowell v. St. Paul Fire & Marine Insurance Co., 490 So.2d 288 (La.App. 3 Cir.1986). In Crowell, this court held that it was premature to award attorney fees against a party who fails to appear at a motion to compel hearing until a subsequent hearing can be held “to afford the opportunity to present facts which may enable the court to find circumstances which ‘make an award of expenses unjust.’” Id. at 290. Hardee also cites Garza, 702 So.2d 1021, in support of her claim that the attorney fee award was premature.

Hardee additionally contends that the award of attorney fees was improper because counsel for the City failed to offer any proof of the expenses and costs incurred as a result of her having to file the motion to compel. In support of this argument, Hardee cites Corumia v. Broadhurst, 584 So.2d 377 (La.App. 3 Cir.1991), wherein this court held that even though the trial court did not err in concluding that 1 .^expenses and attorney fees were due from a party who failed to provide discovery, the trial court’s award must be set aside for lack of proof. Hardee submits that because the City offered no evidence to support her request for attorney fees and costs at either the original hearing or the hearing on the motion for new trial, the $750.00 award was not justified.

The City submits that the attorney fee award should be affirmed because the record is void of any indication that “the conduct of the party who necessitated the motion [to compel hearing] was substantially justified,” or that the award of attorney fees was unjust. The City acknowledges Crowell, but adds that this court went on to note that such premature assessment of attorney fees was cured by the hearing afforded to the party in the motion for a new trial. The City avers that Har-dee was given the same opportunity at the motion for new trial hearing and failed to raise prematurity or lack of proof at the trial court level. The City distinguishes Garza on the basis that the trial court in that case did not grant the motion to compel, but merely awarded attorney fees and dismissed the recalcitrant party’s intervention.

In the matter before us, there is no dispute that the opposing attorneys communicated prior to the hearing on the-City’s motion to compel. Counsel for the City does not dispute that she had the substance of the answers to the outstanding interrogatories before the hearing and that she knew that opposing counsel was working on getting her the signed authorization from his client. Simply put, Har-dee’s counsel believed that they had a “gentleman’s agreement” to pass on the hearing. Given the entirety of the circumstances, including the age and posture of this case and the fact that Hardee resided in Washington state, coupled with the aforementioned undisputed facts, we are convinced that the award of attorney fees made in this case | fiwas unjust. The WCJ abused its discretion in awarding the City attorney fees at the motion to compel hearing. The portion of the May 20, 2010 judgment awarding the City $750.00 in attorney fees is reversed.

Should a New Trial Have Been Granted?

Louisiana Code of Civil Procedure Article 1972 provides, in pertinent part, that a new trial shall be granted when the “judgment appears clearly contrary to the law and the evidence.” A new trial may also be granted “in any case if there is good grounds therefor.” La. Code Civ.P. art. 1973. When a motion for new trial is filed, “it is the mover’s burden to prove to the trial court that he is entitled to a new trial for one of the grounds listed in the Code of Civil Procedure.” Dragon v. Schultz, 97-664, p. 4 (La.App. 5 Cir. 1/14/98), 707 So.2d 1274, 1276. An appellate court will only reverse a trial court’s determination on a motion for new trial when there is an abuse of discretion. Henderson v. Sellers, 03-747 (LaApp. 3 Cir. 12/17/03), 861 So.2d 923.

In the motion for new trial, Hardee asserted that the award of attorney fees was contrary to the law and the evidence presented at the hearing because her counsel thought that the motion to compel was being passed, as the City had been given the answers to its discovery over the telephone prior to the hearing. In denying the motion for new trial, the WCJ indicated that Hardee had not presented any new evidence at the hearing on the motion for new trial. Our reading of the transcript from the May 10, 2010 motion hearing leads us to a different conclusion. At the hearing, counsel for the City stated that opposing counsel “did try to explain some of what we were trying to seek in our discovery.” (Emphasis added.) She further stated that although opposing counsel thought that she had agreed to pass on the hearing, she had “made no such representation.” On the other hand, at the new trial hearing, 17counsel for the City admitted that she had the answers to all of the outstanding interrogatories and that she was willing to wait for the signed release/authorization. She also stated that she had indicated to opposing counsel that if she had the answers before the hearing, she would make the hearing “go away.” Those discrepancies certainly shed light on the situation and, in our view, constituted good grounds for reconsidering the attorney fees issue. The WCJ abused its discretion in failing to grant Hardee’s motion for new trial.

The City’s Answer to Appeal

Characterizing Hardee’s appeal as frivolous, the City asserts that it should be awarded damages pursuant to La. Code Civ.P. art. 2164. Hardee strongly disagrees with that characterization. “Appeals are always favored ... and the slightest justification for an appeal precludes damages for frivolous appeal.” Bankston v. Alexandria Neurosurgical Clinic, 94-693, p. 4 (La.App. 3 Cir.12/7/94), 659 So.2d 507, 511 (citation omitted). Because we have reversed the judgment of the WCJ, we deny the City’s request for damages for frivolous appeal.

DECREE

For the foregoing reasons, we reverse the portion of the May 20, 2010 judgment awarding the City $750.00 in attorney fees. The City’s request for damages for frivolous appeal is denied. Costs of this proceeding are assessed to the City.

REVERSED IN PART.

      . A 1020 statement or "Employer’s Monthly Report of Earnings” is a form that must be submitted by an employee to his/her workers' compensation insurer every thirty days as long as he/she is receiving indemnity disability benefits.

      . See Uniform Rules — District Court, Rule 10.1.

      . In Garza, we cited our earlier decision in Crowelt with approval.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Justin F. COLLINS and Marion Taylor.
    No. 2010-KA-0757.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2011.
    Rehearing Denied June 29, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, the State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Justin Collins.
    John Harvey Craft, Louisiana Appellate Counsel, New Orleans, LA, for Defendant/Appellant, Marion Taylor.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

1 j Defendants Justin Collins and Marion Taylor were jointly indicted for second-degree murder in the shooting death of Jerome Sparkman. Defendants were found guilty and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendants timely appeal.

We find that the trial court did not err in allowing the testimony outside the presence of Defendants. We find that the evidence was sufficient to support Defendant Collins’ conviction. We find that the admission of the 911 recordings did not implicate the Confrontation Clause. Additionally, we find no merit in Defendant Taylor’s argument that the trial court erred in admitting evidence of firearms and ammunition. Nevertheless, we conclude that any error in their admission would be harmless.

We further find that the trial court did not err in admitting Defendant Collins’ statement. We find that the trial court did not abuse its discretion in denying Defendant Taylor’s motion to sever. Lastly, we find no error in the trial court’s decision not to declare a Louisiana statutory scheme unconstitutional, and we conclude that even if the trial court erred, such error was harmless.

^PROCEDURAL HISTORY AND FACTS

In 2008, the State jointly indicted Defendants Justin Collins and Marion “Little Daddy” Taylor (“Defendant Collins” and “Defendant Taylor”) for second-degree murder in the shooting death of Jerome Sparkman. Defendants pled not guilty and filed pre-trial motions, including motions to suppress evidence, statement, and identification, which were denied.

Defendant Taylor filed a motion to sever his trial from that of his co-defendant, which the trial court denied. Defendant Taylor filed an application for supervisory writ in this Court, seeking review of the trial court’s denial of the motion to sever; this Court declined to exercise its supervisory jurisdiction. Defendant Taylor then filed a writ of certiorari with the Louisiana Supreme Court, which was denied. During trial, the motion to sever was renewed and denied.

Defendant Taylor filed a motion to have Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital cases declared unconstitutional, and the trial court denied the motion. Defendant Taylor also filed three (3) motions in li-mine: 1) to exclude the statement made by Defendant Collins to the police; 2) to prevent the State from introducing evidence of firearms and ammunition found during the search of 2125 Annunciation Street; and, 3) to prohibit the State from introducing the 911 calls in this matter at trial. The trial court denied the motions.

The State filed a motion to present the testimony of a child witness by closed-circuit television, which the trial court denied. The State applied for supervisory writ; this Court granted writ and ordered the trial court to conduct a hearing on the motion in accordance with La. R.S. 15:283. State v. Taylor, unpub. 2009-1157 (La.App. 4 Cir. 8/25/09). The trial court conducted that hearing, |3granted the motion, and allowed the witness’ testimony to be presented by closed-circuit television.

At the conclusion of trial, the jury returned a verdict of guilty as charged as to both defendants. Thereafter, the trial court sentenced Defendant Taylor to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant Taylor moved for a reconsideration of the sentence, which was denied. Defendant Taylor appealed.

Defendant Collins filed motions for post-verdict judgment of acquittal, new trial, and in arrest of judgment, all of which were denied. The trial court sentenced Defendant Collins to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant Collins moved for reconsideration of the sentence, which was denied. Defendant Collins appealed.

In 2008, Dionne Sparkman (“Ms. Spark-man”) accompanied the victim (her brother, Jerome Sparkman) to a car wash. At approximately 12:15 p.m., the two left the car wash en route to the victim’s home, but the victim received a phone call that caused him to instruct Ms. Sparkman to drive to Juanita (“Peewee”) Davis’ house. Justin Collins (“Defendant Collins”) was seated on Peewee’s porch, and the victim exited the vehicle to speak to Defendant Collins. Ms. Sparkman could not hear the conversation between the victim and Defendant Collins, but stated that they spoke only briefly before she and the victim entered the house. Shortly thereafter, the victim went back onto the porch.

Ms. Sparkman went onto the porch to call Peewee’s daughter to come inside. While on the porch, Ms. Sparkman noticed the victim talking to Defendant Taylor, Defendant Collins, and other friends that she did not recognize. While Ms. Spark-man recognized Defendant Taylor as one of the victim’s friends, she had only seen Defendant Collins for the first time on that day. After Peewee’s daughter entered the house, Ms. Sparkman went back into the house.

|4Ms. Sparkman and the victim remained at Peewee’s house for approximately two hours. Approximately ten minutes before he was murdered, the victim entered the house to tell Peewee that someone at the front door wanted to speak to her. Ms. Sparkman observed that the victim was angry because he loaned Defendant Collins his vehicle (a white Impala) to drive to the store, and Defendant Collins had not yet returned with the vehicle. The victim spoke to Peewee again briefly and then left the house.

Not long thereafter, someone from the neighborhood came to Peewee’s house and stated that the victim had been shot. Ms. Sparkman panicked when she heard the news and stayed in the house, worrying about how to tell their mother that the victim was dead. A few minutes thereafter, Ms. Sparkman ran from Peewee’s house to the intersection of Annunciation and Laurel Streets, where she found the victim dead in the driver’s seat of his white Impala.

Ms. Sparkman later spoke to investigating detectives and identified photographs of Defendants Taylor and Collins as the men she last saw with the victim; she also made an in-court identification.

Tawanka Sparkman (“Tawanka”) and the victim were married and had four children at the time of the victim’s death. The victim owned a carwash, and on the day of the murder, the victim left their home with his sister, Ms. Sparkman, and drove to his business in Algiers, Louisiana. On the day of his death, the victim was driving a white Impala. When the victim left Algiers, he telephoned Tawanka and stated that he and Ms. Sparkman were going to the Tchoupitoulas Street area to see his friend Marion “Little Daddy” Taylor. Tawanka called the victim thereafter and heard him arguing with someone; he told Tawanka that he would call her back. When he did so, she asked him if he was okay, and he replied that he was fine. Tawanka told the victim that she was going home and that she would call him | slater. That was the last conversation that Tawanka had with the victim. Ta-wanka later received a call from Ms. Sparkman telling her that the victim had been shot.

Tawanka told the investigating detectives that the last time she spoke to the victim, he was with Defendant Taylor. Ta-wanka met with Detective Gernon and identified a picture of Defendant Taylor; she also identified Defendant Taylor in court as the man she knew as “Little Daddy.” Although the victim carried two cell phones — one for business, the other for personal use — the only items she retrieved from the coroner’s office were a cigarette lighter and some change.

At the time of the incident, Ms. Andrea Taylor was an Assistant Police Communications Supervisor with the NOPD. Ms. Taylor was responsible for overseeing 911-call operations, and identified State’s exhibits twelve and thirteen as the incident recalls and audio recordings, respectively, of the 911 calls received in this case. One of the 911 calls gives the description of persons running from the scene; the next is someone yelling that someone had been shot; and, another reports an accident and that someone has been shot. All of the calls referenced a white vehicle in the area of Josephine and Laurel Streets.

In accordance with La. R.S. 15:440.1 et seq., D.T.l testified that he lived in the neighborhood when the shooting occurred and would walk around the corner to buy candy from a store. On the date of the incident, D.T.l, his sister, D.T.2, and his cousin walked to the store. While walking, they observed a passing white vehicle containing three people — one person was in the driver’s seat, another man was seated next to him, and another man was in the back seat. As D.T.l was entering the store, he observed Defendant Taylor and Defendant Collins each shoot |fithe driver, and he heard two gunshots come from the vehicle. Thereafter, D.T.l observed Defendants, who he knew from the neighborhood, exit from the back of the white vehicle and run. D.T.l also observed Defendant Collins, who was sitting in the front passenger seat, getting into the back of the vehicle with Defendant Taylor; Defendants then exited the back of the vehicle.

Defendants were armed with black guns when they exited the vehicle. D.T.l testified that the gun held by Defendant Collins was “big like an AK machinegun” and the other was “little,” like the kind police officers carry. As D.T.l ran from the scene, he observed Defendant Collins jump over a black fence; D.T.l ran home and told his mother what he observed. D.T.l spoke to Detectives Gernon and Williams and identified pictures of Defendants as the men he observed exiting the white vehicle. D.T.l identified pictures of Defendants Collins and Taylor and the shooting scene.

Detective Nicholas Gernon responded to a call received involving a homicide at Laurel and Josephine Streets and led the investigation of the shooting death of Jerome Sparkman. When he arrived on the scene, Det. Gernon noted that the area was a residential neighborhood with a corner store and retirement community in close proximity. A white Impala, with the deceased victim sitting in the driver’s seat, had hit a blue truck. The Impala’s driver, front passenger, and left rear doors were open. Det. Gernon directed police personnel in photographing and collecting evidence from the scene, interviewing the victim’s family members and canvassing the neighborhood for potential witnesses. The police investigation indicated that the shooters were inside the vehicle when the victim was shot. While inspecting the white Impala, police recovered three cell phones from the vehicle. The police determined that two of the phones belonged to the victim and the third, a black Boost phone that was found on the floor of the front passenger seat, belonged to Defendant Collins.

17Pet. Gernon spoke to Christopher Meis (“Mr. Meis”), who Det. Gernon learned was in the store when the shooting began. Mr. Meis ran outside of the store and saw two suspects fleeing from the white vehicle. Mr. Meis described the suspect who exited from the front passenger seat as approximately 5'7" tall with light skin complexion and the beginnings of a goatee and a fresh abrasion on his face. Mr. Meis also described the suspect in the rear driver’s side seat as approximately 5'10" tall, lighter skinned than the other suspect, with the beginning of twists in his hair. However, Mr. Meis could not identify either suspect from a photo lineup compiled by Det. Gernon.

Det. Gernon then spoke to D.T.2, who stated that on her way to the store, she witnessed the shooting and the car accident that ensued. D.T.2 identified Defendant Collins from a photo lineup as the suspect who was seated in the front passenger seat at the time of the shooting. Det. Gernon also interviewed D.T.2’s younger brother, D.T.l, who accompanied her as she was en route to the store and also identified Defendant Collins as one of the shooters.

Det. Gernon obtained an arrest warrant for Defendant Collins, and Defendant Collins’ mother turned him in to the police. After advising Defendant Collins and his mother of their rights, they agreed to be interviewed by Det. Gernon. Initially, Defendant Collins told Det. Gernon that he and Defendant Taylor were together on the day of the shooting. They went to Defendant Taylor’s Aunt Irene’s (“Irene”) house in the morning and then back and forth to Defendant Taylor’s mother’s house.

Later that afternoon, they went to Peewee’s house, and the victim allowed Defendant Collins to use his vehicle for a trip to the store to buy cigarettes. That afternoon, he learned that the victim had been shot. During further questioning, Defendant Collins admitted that he was in the front passenger seat of the victim’s vehicle when the shooting occurred; however, Defendant Collins stated that a | sperson in the back seat shot the victim. Defendant Collins stated that he could not identify the shooter and that he ran from the shooting and stashed his bloody clothing at Irene’s house.

The search of Irene’s house yielded the recovery of a fully loaded assault rifle from a crawl space in the garage; three boxes of ammunition for the rifle; a box of .45-caliber ammunition; a 9-millimeter handgun, which was stashed underneath the mattress in the master bedroom; 9-mil-limeter ammunition; and, magazines for the weapons. Fingerprint testing on the weapons and ammunition produced negative results. The 9-millimeter gun was registered to Irene and testing excluded it as the murder weapon.

Continuing the investigation, Det. Ger-non compiled a photo lineup and presented it to D.T.l and D.T.2. D.T.l identified the picture of Defendant Taylor as the man he observed shooting the victim in the head, and D.T.2 recognized the picture of Defendant Taylor as the man she saw seated in the back of the white vehicle, who ran from the scene.

After Det. Gernon retrieved the bullet recovered from the victim’s head during autopsy, he searched the victim’s vehicle again and located a spent bullet casing under the driver’s seat. He also discovered a Sprite can, a T-shirt, hat and water bottle. Testing of the objects revealed no fingerprints on the water bottle, and ham and fiber samples from the other objects were not able to be used. However, the Sprite can contained two fingerprints that were matched to Defendant Collins’ fingerprints. Det. Gernon obtained a search warrant for Defendant Taylor’s last known address, and that search produced Defendant Taylor’s social security card, birth certifícate, paperwork from traffic court, several boxes of shotgun shells and pictures of Defendant Taylor. However, information gleaned from the autopsy indicated that the victim was not killed by a shotgun.

|c|New Orleans Police Department (NOPD) fingerprint analysis expert, Officer Joseph Jackson, analyzed fingerprints taken in the investigation of this case. No fingerprints were identified as belonging to Defendant Taylor, but one fingerprint tested positive as to Defendant Collins.

Sergeant Byron Winbush, NOPD expert in ballistics and firearms identification, determined that the bullet retrieved during the victim’s autopsy was either a .38 caliber or a .357 Magnum caliber. Because there was no weapon retrieved during the investigation, Sgt. Winbush made his determination by measuring the base diameter of the bullet. However, when he compared the bullet to the bullet casing retrieved from the scene, he determined that the bullet jacket and the bullet were fired from the same weapon. Sgt. Winbush concluded that the bullet could not have been fired from a .38 caliber or 9-millimeter weapon.

D.T.2, D.T.l’s older sister, lived with her family at the time of this shooting. When walking to the store on the date of the incident, as she turned the corner near the store, she saw Defendant Collins shoot a man seated in the driver’s seat of a white vehicle. In addition to the victim and Defendant Collins, D.T.2 saw Defendant Taylor seated in the back seat of the white vehicle, behind the victim. After the victim was shot, Defendants Collins and Taylor jumped from the vehicle and ran. D.T.2 observed a gun in Defendant Taylor’s hand and a gun in Defendant Collins’ hand. After the shooting, D.T.2, D.T.l and Melvin ran toward home. Melvin warned D.T.l and D.T.2 not to look back, but D.T.2 did. When D.T.2 arrived home, she told her mother what she had seen. Later that day, D.T.2 relayed what she had seen to Det. Gernon. The detective showed her a photo lineup from which she identified Defendant Collins as one of the shooters. A few days later, from another photo lineup, she identified Defendant Taylor as the other shooter. When D.T.2 initially spoke to the Det. Gernon, she told him that Defendant Taylor Imshot the victim because she was afraid of Defendant Collins. Later, however, she stated that both Defendants Collins and Taylor shot the victim.

Dr. Samantha Huber, forensic pathologist for the Orleans Parish Coroner’s Office, performed the autopsy on the victim’s body. The victim suffered three gunshot wounds to the head and a bruise on the nose. One of the gunshot wounds was a close-contact wound to the right, back of his head. The area around the wound bore a muzzle imprint from the murder weapon, soot, and searing. That wound caused extensive brain damage. Two bullet fragments were retrieved from this wound. The second wound was to the left, back of the victim’s head. The shot traveled forward and exited the victim’s right cheek, causing extensive brain damage. The third wound was a shallow, penetrating injury to the victim’s hand. That wound was not through-and-through, and appeared as if the bullet ricocheted or had passed through something prior to entering the victim’s hand. Either of the head wounds would have been fatal and probably killed the victim almost instantly.

During his testimony, Mr. Meis also explained that in 2008, he was a member of the Guardian Angels, a volunteer crime fighting organization. Mr. Meis exited the store when he heard a shot and a crash, and he noticed a white vehicle pushing a blue truck through the intersection. Mr. Meis saw children running and two men exit the vehicle and run down Laurel Street toward Jackson Avenue. He did not notice whether either man was armed when exiting the vehicle. Mr. Meis observed the victim in the vehicle, and, after determining that he needed medical assistance, Mr. Meis called 911.

ERRORS PATENT

A review for errors patent reveals there are none.

CLOSED-CIRCUIT PRESENTATION OF TESTIMONY

| nIn one of several assignments of error, Defendants argue that the trial court improperly allowed D.T.l to testify by closed-circuit television rather than in the court room.

La. R.S. 15:283 provides, in pertinent part:

A. On its own motion or on the motion of the attorney for any party, a court may order that the testimony of a protected person who may have been a witness to or victim of a crime be taken in a room other than the courtroom and be simultaneously televised by closed circuit television to the court and jury, when the court makes a specific finding of necessity based upon both of the following:
(1) Expert testimony that the child would be likely to suffer serious emotional distress if forced to give testimony in open court.
(2) Expert testimony that, without such simultaneous televised testimony, the child cannot reasonably communicate his testimony to the court or jury.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This right provides “two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). However, public policy considerations and necessities may take precedence over “face-to-face” confrontation. Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990).

In Maryland v. Craig, supra, the United States Supreme Court reviewed a Maryland statute that allowed a child abuse victim to testify by one-way closed circuit television where it was shown that the child witness would suffer serious emotional distress such that the child could not reasonably communicate. Craig, 497 U.S. at 840-42. The Court held that if the state makes an adequate showing of necessity, the state’s interest in protecting child witnesses from the trauma of | ^testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant. Id., 497 U.S. at 855. According to the Court, although the Maryland statute, when invoked, prevented a child witness from seeing the defendant as he or she testified against the defendant at trial, the procedure preserved all of the other elements of the confrontation right: “The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.” Id., 497 U.S. at 851. The Craig court noted that although it was aware of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation — oath, cross-examination, and observation of the witness’ demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. Id.

Further, in Craig, the Court stated that the requisite finding of necessity must be a case-specific one. Id., 497 U.S. at 855. The trial court must hear evidence and determine whether use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. Id. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Id., 497 U.S. at 856. Denial of face-to-face confrontation is not needed to further the state’s interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. Id. Finally, the trial court must | iafind that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness, excitement or some reluctance to testify. Id. The Court concluded that, where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective communication. Id., 497 U.S. at 857.

In the matter sub judies, on the morning of trial, the State filed a motion to allow the closed-circuit presentation of the testimony of D.T.l under La. R.S. 15:288, arguing that D.T.l would likely suffer serious emotional distress and be unable to effectively communicate his testimony. In support of the motion, the State offered sworn letters from Drs. Richard Richoux and Rafael Salcedo, who interviewed D.T.l and opined that requiring D.T.l to testify live in the courtroom “would be extremely traumatic and stressful for him [and] would ... likely ... exacerbate what appeared to be pre-existing symptoms of a post-traumatic stress disorder.”

Dr. Sarah Deland, accepted as an expert in the fields of general and forensic psychiatry, testified for the State that if D.T.l were required to testify in open court, he would likely suffer extreme emotional distress and be unable to reasonably communicate his testimony to the jury. Contesting Dr. Deland’s testimony, the defendants argue that the factors Dr. Deland gave in support of her opinion were generalities, none of which was sufficient to support the trial court’s finding that D.T.l would be able to testify if not in the defendants’ presence. Dr. Deland’s testimony regarding D.T.l’s ability to testify in the presence of 114Pefendants supported the trial judge’s finding. Dr. Deland testified in part as follows:

[DIRECT EXAMINATION OF DR. DELAND]
A. My findings were that overall I found [D.T.l] to be a ... fairly intelligent child. He did not present any overt symptom of ongoing mental illness. However, he was ... anxious about his situation.
He was able to tell me his version of the events that he witnessed very clearly without any difficulty. However, when it came to talking about coming into court, he became very, very anxious. He pretty much completely shut down, started drawing, did not want to talk about it, talked about other things, got up and down out of his chair, asked to leave the room.
And so based upon my ... observations [of his behavior], it was my opinion that it would cause him extreme emotional distress to come into open court.
Q. And, in your opinion to believe if he were to testify in open court, would he be able to communicate with the court ... express what he experienced?
A. I think that’s — I mean — in open court, I have my doubts about whether or not he would be able to do that. * * *
[CROSS EXAMINATION]
Q. Doctor, let me ask you something if you don’t mind. Anyone that’s called as a witness, who’s appearing for the first time, whether they’re 10 or 44, there’s a degree of anxiousness, nervousness?
A. Yes, I’d agree with that. * * *
Q. And there’s no obvious — you said [D.T.l] is intelligent?
A. Yes.
Q. And he recalled everything to you without any problem?
A. That’s correct.
Q. And you said that when you mentioned about going to court he showed some reluctance, as most witnesses do, is that correct?
A. Well, I wouldn’t really say so much reluctance as extreme anxiety.
| ,-Q. Now, how would you categorize extreme anxiety?
A. Like I said, he pretty much — he had been talking to me fairly regularly before, when once that happened, he really just shut down, meaning he broke eye contact, he looked down and just started drawing. He started asking me about extraneous things like Sponge Bob or how do you spell Sponge Bob, things like that, getting up and down out of his chair, and then when I asked to talk to his Mom, he was very eager to leave. He asked, “So I can leave?”
Q. And my problem is trying to understand that this natural fear — as a new attorney is fearing going to trial for the first time, or a witness being called no matter what the age, is very reluctant, and fearful, and has anxiety — that this is basically what he’s feeling right now because he’s never been in the courtroom. Would you agree with that?
A. Yes.
Q. ... it would cause him extreme emotional distress?
A. Yes, it would.
Q. Okay. And, in your opinion, would part of that be because he was placed in the same room with the defendants?
A. I’m sure that has — yes. That has something to do with it. He is scared.
Q. And you mentioned, when you started speaking about actually coming into the courtroom and testifying, he exhibited behavior such as shutting down, losing eye contact, going off topic. Would you expect that that would be his behavior if he were brought into court?
A. Yes. That’s one of the things that I based my — based my opinion upon.
Q. And that would cause him to not reasonably be able to communicate what he experienced?
A. Yes.

We find that Dr. Deland’s expert testimony conforms to the Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990) standard that the emotional distress suffered by the child witness in this case in the presence of the defendant is more than de minimis, ie., more than mere nervousness or | lñexcitement or some reluctance to testify. The trial court did not err in allowing D.T.l to testify outside the presence of the defendants.

ADMISSION OF EVIDENCE

ADMISSION OF 911 TAPES

Defendants Collins and Taylor argue that the trial court erred in allowing the 911 tapes into evidence. Defendants contend that because the callers did not testify, and were thus not subjected to confrontation, Defendants’. Sixth Amendment rights were violated.

In support of Defendants’ contention that their right to confront their accusers was violated, Defendants cite Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in which the U.S. Supreme Court found that certain ex parte examinations, while admissible under hearsay rules, are the type of testimonial evidence against the accused that the Confrontation Clause is supposed to prevent. The Supreme Court held that the Sixth Amendment bars admission of testimonial statements by a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity to cross examine the witness. Id. In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), specifically in the context of 911 calls, the Supreme Court declared that “[statements are nontestimonial when made in the course of police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Conversely, statements are “testimonial when the circumstances objectively indicate that is no such ongoing emergency, and that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions.” Id., 547 U.S. at 822.

In the matter before us, the 911 calls ranged from descriptions of suspicious persons running with guns to people reporting the shooting. Defendants | ^specifically object to the call from a caller identified only as “Tashia,” who identified Defendants Collins and Taylor by name and provided the path they were running.

Applying Davis to the facts before us, we find that the 911 calls were non-testimonial and, therefore, the admission of the recording did not implicate the Confrontation Clause. The primary purpose of the callers’ statements and of the questioning by the 911 operator was to address and resolve an ongoing emergency. At the time the 911 calls were initiated, gunshots had been fired, and the callers feared for their safety and the safety of others. The questions posed by the operator were necessary to evaluate the situation, locate the perpetrators and to dispatch the required assistance.

ADMISSION OF FIREARMS AND AMMUNITION

Defendants argue that the trial court erred in admitting firearms and ammunition that were unrelated to the offenses charged in the indictment into evidence. Pursuant to search warrants issued in this case, the police confiscated guns and weapons from Defendant Taylor’s home on Annunciation Street and from his Aunt Irene’s house, where Defendants were seen running to with guns after the shooting. However, ballistics testing indicated that the guns and ammunition seized were not used to commit the murder. Defendants argue, therefore, the weaponry had no probative value and was introduced simply to prejudice Defendants by painting them as dangerous, armed persons.

Defendants cite several cases in support of their argument that it is error to admit a weapon into evidence when the weapon was not the weapon used in the commission of the offense. However, we do not find support for Defendants’ argument therein.

In State v. Manieri, 378 So.2d 931 (La. 1979), the trial court admitted into evidence three knives which were “similar” to the murder weapon but which were 11snot used in the slaying. The Supreme Court held that the trial court erred in admitting the knives into evidence. Id., 378 So.2d at 933. However, such error was harmless because no effort was made to connect the knives to the crime or to the defendant, and a State witness testified that the knives were not the murder weapon. Id.

In State v. Landry, 388 So.2d 699 (La. 1980), the trial court admitted into evidence a pocketknife found on the defendant when he was arrested for a stabbing death. The Supreme Court found that the trial court erred in admitting the knife into evidence. Id., 388 So.2d at 704. However, because the State made no attempt to connect the knife with the killing or exploit the admission of the knife in argument, the Court held that the error was not reversible. Id.

In State v. Villavicencio, 528 So.2d 215 (La.App. 4 Cir.1988), the trial court admitted a .22 caliber rifle and bullets, .357 caliber bullets, and photographs of the defendant’s car showing these items in the interior of the vehicle. The defendant was charged with shooting the victim with a handgun. Id., 528 So.2d at 216. This Court found that the trial court erred in admitting the evidence because it was prejudicial, citing Manieri, but did not specifically find that the prejudicial effect outweighed any probative value of the evidence. Id., 528 So.2d at 217. This Court went on to find no reversible error because the State had not attempted to link the rifle and the .22 caliber bullets with the shooting. Id. No statement regarding any argument by the State concerning such evidence was made.

In State v. Richardson, 96-2598 (La. App. 4 Cir. 12/17/97), 703 So.2d 1371, the trial court allowed the introduction of a shotgun found abandoned by defendant in an incident unrelated to the armed robbery, committed with a handgun, for which he was being tried. This Court found no reversible error, in part, because the victim and a police officer testified that the shotgun had not been used in the robbery. Id., 96-2598 at p. 6, 703 So.2d at 1374.

Lain this case, the investigating officer and the State’s ballistics expert both testified that none of the guns introduced into evidence was the murder weapon, and no effort was made by the State to connect the guns to the murder or exploit the admission of the guns in argument. While the weapons were not used in the murder, one of the guns matched the description provided by an eyewitness of the gun that was observed in the possession of one of the defendants at the scene. Additionally, admission of the weapons was relevant to claims made by defendants during trial of an incomplete police investigation. Thus, we find no merit in Defendant’s assignment of error, and we conclude that any error in their admission would be harmless.

SUFFICIENCY OF EVIDENCE

Defendant Collins argues that the evidence is insufficient to support his conviction. He contends that the evidence did not preclude the possibility of misidentifi-cation.

The standard of appellate review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is to consider the record as a whole, not just the evidence favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict will be upheld. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Either direct or circumstantial evidence may prove the essential elements of the crime. With circumstantial evidence the rule is: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:488. This rule is not a separate test from the review standard established by Jackson v. Virginia, but rather it is an 12oevidentiary guideline which facilitates appellate review of the sufficiency of the evidence. State v. Jacobs, 504 So.2d 817, 820 (La.1987). Ultimately, to support a conviction, the evidence, whether direct or circumstantial or both, must be sufficient under Jackson to satisfy any rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton, 486 So.2d 471, 474 (La.1983). Credibility determinations are within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La. 1984). In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the State to negate any reasonable possibility of misidentification in order to carry its burden of proof. State v. Varnado, 1997-2825 (La.App. 4 Cir. 9/22/99), 753 So.2d 850, 857.

To determine if there is a likelihood of misidentification, the jurisprudence has applied the following five-factor test enunciated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977): (1) the opportunity of the -witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. State v. Jones, 2002-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205, 213 (citing Manson, supra).

Applying the Manson factors to this case, we find support for the reliability of the identification. D.T.l testified that he recognized Defendants Collins and Taylor from the neighborhood, stating that he saw them almost every day. D.T.l stated that he observed Defendant Collins in the victim’s car prior to the shooting, and then after the gun shots were fired, D.T.l stated he observed Defendant Collins exit the rear of the victim’s vehicle. D.T.l also stated that he and Defendant Collins ran in the same direction after the shooting, in close enough proximity to run past Defendant Collins as he (Defendant Collins) jumped a gate in the area. 1 ⅞1When presented with a photo lineup the day of the shooting, D.T.l identified Defendant Collins’ picture as one of the shooters.

D.T.l’s older sister, D.T.2, also identified Defendant Collins as one of the men who shot the victim. Sgt. Gernon interviewed D.T.2 approximately three hours after the shooting, and she identified Defendant Collins’ picture from a photo lineup as one of the men who jumped from the victim’s vehicle after the shooting. Moreover, in his statement to the police, Defendant Collins stated that he was seated in the victim’s car in the front passenger seat at the time the victim was shot.

RIGHT TO CONFRONT WITNESSES

Defendant Taylor maintains the trial court erred in admitting the statement given by his co-defendant into evidence. Defendant Taylor maintains that his Sixth Amendment right to confront witnesses against him was violated by the trial court’s action and cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), as authority.

The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” The United States Supreme Court has held that this guarantee, which is extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987).

The Supreme Court held in Bin-ton, supra, that in a trial where two or more defendants are tried jointly, the admission of a non-testifying co-defendant’s confession that expressly implicates the defendant violates the defendant’s Sixth Amendment confrontation rights, even if the district court gave the jury limiting instructions to consider the confession only against the codefendant who confessed. Bruton, 391 U.S. at 126, 88 S.Ct. 1620; United States v. Melina, 101 F.3d 567 (8th Cir.1996); United States v. Escobar, 50 F.3d 1414, 1422 (8th Cir.1995). “If a code-fendant’s confession does not incriminate the defendant on its face, but does so 122only when linked to additional evidence, it may be admitted if a limiting instruction is given to the jury and the defendant’s name is redacted from the confession.” United States v. Flaherty, 76 F.3d 967, 972 (citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). In addition, Bruton does not apply at all when a co-defendant’s statements do not incriminate the defendant either on their face or when considered with other evidence. Escobar, 50 F.3d at 1422. See also State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814. In Bruton, the codefendant’s confession expressly implicated the defendant as his accomplice. 391 U.S. at 141-142, 88 S.Ct. 1620.

Defendant Collins’ statement in this case was that he [Defendant Collins] was present in the automobile at the time of the shooting; the victim was driving; he [Defendant Collins] was in the front passenger seat; and that the person sitting in the rear driver seat of the vehicle shot the victim in the head.

Bruton is not applicable in this case because Defendant Collins’ statement does not implicate Defendant Taylor in any wrong-doing. Nowhere in Defendant Collins’ statement does he identify Defendant Taylor as the shooter, nor does Defendant Collins’ statement indicate that Defendant Taylor was in the vehicle at the time of the shooting.

In his statement, Defendant Collins specifically denied knowing who was in the back seat because he did not get a good look. Given the close relationship between Defendants Collins and Taylor as reflected in the statement (i.e., according to the statement, Defendants Collins and Taylor spent the night prior to the incident and most of the day of the incident together, and Defendant Collins referred to Defendant Taylor’s aunt, Irene, as his own aunt), the fact that Defendant Collins says in his statement that he did not recognize the back seat passenger would indicate that Defendant Taylor was not in the car at the time of the shooting. Therefore, we do not find that Defendant Taylor’s Sixth Amendment^right to confront witnesses against him was violated by the trial court’s admission of Defendant Collins’ statement. We find no error in the trial court’s admission of the statement.

MOTION TO SEVER

Defendant Taylor argues that the trial coui’t erred in denying his motion to sever his trial from that of Defendant Collins. While Defendant Taylor does not argue that his and Defendant Collins’ defenses are antagonistic, Defendant Taylor asserts that their defenses are “not sympathetic.”

La.C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried jointly unless the state elects to try them separately, or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La.1984). A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. Prudholm, 446 So.2d at 741. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Prudholm, 446 So.2d at 741.

A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. Prudholm, 446 So.2d at 741. The defendant bears the burden of proof in such a motion. Mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Prudholm, 446 So.2d at 741. Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. Prejudice must be shown if defendants are to receive separate trials. State v. Williams, 416 So.2d 914, 916 (La. 1982).

|24⅛ the case before us, both defendants denied any involvement in the shooting, but neither blamed the other for the offense. Nevertheless, Defendant Taylor argues that justice required a severance because he was blamed indirectly by Defendant Collins in his statement.

In State v. Coe, the defendant was not entitled to severance from his codefendant in a second-degree murder prosecution where defendant’s statement was that he was with the co-defendant for the entire day, but the co-defendant’s testimony and statement differed by suggesting that at the time the incident occurred, the co-defendant was not with the defendant but was at her parent’s house without him. 2009-1012, p. 14 (La.App. 5 Cir. 5/11/10), 40 So.3d 293, 302.

As we stated in the preceding assignment of error, Defendant Collins’ statement did not, directly or indirectly, implicate Defendant Taylor in the shooting. Therefore, we do not find that the trial court abused its discretion in denying Defendant Taylor’s motion to sever.

MOTION TO HAVE STATUTE DECLARED UNCONSTITUTIONAL

Defendant Taylor contends that the trial court erred in denying his motion to have Louisiana’s statutory scheme which permits non-unanimous jury verdicts in non-capital felony cases declared unconstitutional. In particular, he claims that Louisiana Article 1, § 17(A) and La.C.Cr.P. art. 782(A) violate the Sixth Amendment right to trial by jury in combination with the Fourteenth Amendment due process right.

Louisiana Constitution Article I, § 17(A) provides that a case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” Additionally, La.C.Cr.P. art. 782(A) provides in part that “[c]ases in which punishment isj^necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”

In Apodaca v. Oregon, 406 U.S. 404, 410-11, 92 S.Ct. 1628, 1632-33, 32 L.Ed.2d 184 (1972) the United States Supreme Court stated:

[T]he purpose of trial by jury is to prevent oppression by the Government by providing a ‘safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge.’ Duncan v. Louisiana, 391 U.S. 145 at 156, 88 S.Ct. 1444 at 1451, 20 L.Ed.2d 491 (1968) ... ‘Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen ... ’ Williams v. Florida, supra, 399 U.S. 78 at 100, 90 S.Ct. 1898 at 1906, 26 L.Ed.2d 446 (1970). A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant’s guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where non-unanimous juries will convict or acquit. But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served, (emphasis supplied).

In State v. Boudreaux, 2008-1504, pp. 38-39 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, 1165, this Court noted:

In State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738, the trial court found that La.C.Cr.P. art. 782(A) violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, relative to the number of jurors needed to concur to render a verdict in cases in which punishment is necessarily confinement at hard labor, the same issue raised by the defendant in the instant case. On direct appeal by the State, the Louisiana Supreme Court reversed, stating in its conclusion:
Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 | ¡^violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts. Bertrand, 2008-2215, p. 8, 6 So.3d at 743.
This Court cited and relied on Bertrand in State v. Barbour, 2009-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, to reject the argument that the trial court had erred in denying the defendant’s motion to declare La. C.Cr.P. art. 782(A) unconstitutional as violative of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.
As stated by the Louisiana Supreme Court in Bertrand, under current jurisprudence from the U.S. Supreme Court, non-unanimous twelve-person jury verdicts are constitutional, and La.C.Cr.P. art. 782(A) is constitutional.

Accordingly, we find no merit in Defendant Taylor’s assignment of error. Further, even if the trial court erred in failing to declare Louisiana’s jury statutory scheme unconstitutional, we find that such error was harmless because the jury verdict against Defendant Taylor was unanimous.

DECREE

Defendants’ convictions and sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED

      . State of Louisiana v. Marion Taylor, unpub., 2009-1035 (La.App. 4 Cir. 8/26/09).

      . State of Louisiana v. Marion Taylor., 2009-1837 (La.8/12/09), 15 So.3d 1007.

      . This witness’ testimony was taken in the judge's chambers in the presence of both defense counsels, the prosecutors and the judge and simultaneously broadcast via closed circuit television for the jury and the defendants seated in the court room.

      . Two witnesses are juveniles, and rather than their full names, their initials are used throughout this opinion. However, the initials of both witnesses are "D.T.”, therefore, "D.T.l,” is used in this opinion for the male juvenile, who was eight-years-old at the time of the incident, and "D.T.2” is used for his female sister, who was eleven-years-old at the time of the incident.

      . A "protected person” includes a person under the age of seventeen years who is a witness in a criminal prosecution. See La. R.S. 15:283(E)(1).