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    STATE of Louisiana v. Joel T. BAILEY.
    No. 11-1003.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2012.
    David W. Burton, District Attorney, Richard Alan Morton, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Joel T. Bailey.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Defendant, Joel T. Bailey, shot his parents, Eugene and Dorothy Bailey. Defendant fled and was apprehended four days later in Woodville, Mississippi.

Mr. Bailey died at the scene as the result of a shotgun blast to the head fired at contact range. However, Ms. Bailey was transported to the hospital and survived her injuries.

Defendant was charged with first degree murder, a violation of La.R.S. 14:30, and attempted first degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30. Defense counsel stipulated that Defendant, who was a diagnosed schizophrenic, was competent to stand trial and entered a plea of not guilty and not guilty by reason of insanity. The trial court found Defendant incompetent to stand trial.

Three-and-a-half months later, the trial court again found Defendant lacked the capacity to proceed and ordered an assessment at the East Feliciana Forensic Facility to restore him to competency. At a hearing five months later, the trial court found Defendant competent to proceed to trial.

After a jury trial, Defendant was found guilty as charged on both counts. A Motion for New Trial was denied. Defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for first degree murder. For the offense of attempted first degree murder, Defendant was sentenced to forty years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court ordered the sentences to be served concurrently.

Defendant is now before this court asserting two assignments of error: First, he contends the trial court erred in finding him guilty of the crimes charged. |2Second, he argues the trial court erred in denying his Motion for New Trial. We find the evidence was sufficient to support Defendant’s convictions.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends the trial court erred in finding him guilty of the crimes charged. Defendant does not allege that he did not shoot his parents on September 9, 2007, but contends he should have been found not guilty by reason of insanity.

Under La.Rev.Stat. 14:14:

If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.
However, in Louisiana there is a legal presumption that the defendant is sane and responsible for his actions. La.Rev. Stat. 15:432; State v. Poree, 386 So.2d 1331 (La.1979). Therefore, to overcome this presumption of sanity, the defendant has the burden of proving by a preponderance of the evidence that he suffered a mental disease or a mental defect which prevented him from distinguishing between right and wrong with reference to the conduct in question. La.Code Crim. Pro. art. 652; State v. Armstrong, 94-2950, pp. 4-5 (La.4/8/96), 671 So.2d 307, 309; State v. Silman, 95-0154, p. 7 (La.11/27/95), 663 So.2d 27, 32; State v. Peters, 94-0283, pp. 8-9 (La.10/17/94), 643 So.2d 1222, 1225-26. Sanity is a factual matter for the jury, to be determined from all of the evidence, both lay and expert, along with circumstances surrounding the events and testimony relating to the defendant’s behavior before, during, and after the crime. State v. Price, 403 So.2d 660, 663-64 (La.1981); State v. Claibon, 395 So.2d 770, 772 (La.1981); State v. Roy, 395 So.2d 664, 668-69 (La.1981). A determination of the weight of the evidence is a question of fact that rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and if rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. State v. Silman, 95-0154, p. 12, 663 So.2d at 35.
In reviewing a claim for insufficiency of evidence in an action where the affirmative defense of insanity is raised, the appellate court, applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence most favorably to the prosecution, could Isconclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. Peters, 94-0283, p. 8, 643 So.2d at 1225; State v. Armstrong, p. 4, 671 So.2d at 309; State v. Nealy, 450 So.2d 634, 639 (La.1984).

State v. Williams, 07-1407, pp. 7-8 (La.10/20/09), 22 So.3d 867, 875-76, cert. denied, — U.S. —, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010).

There is no dispute that Defendant is mentally ill and has been for many years. The law, though, requires that Defendant show that he was not only mentally ill, but also that the nature of his illness was of such a kind and quality that it “prevented him from distinguishing between right and wrong” at the moment he shot his parents.

If the standard was that we consider this record in a light most favorable to Defendant, we would be hard-pressed to affirm the conviction. Every single witness, be they lay or expert, called Defendant’s sanity into serious question. In fact, it took three hearings and the better part of a year to “restore” Defendant’s competency to stand trial. Furthermore, only one of three doctors believed that he knew right from wrong, and even that doctor believed Defendant was suffering from paranoid schizophrenia.

We must consider the evidence in the light that most favors the State, which the jury found convincing. We accord great weight to the jury’s verdict, and we may not alter it unless it there is no reasonable factual basis for its finding. We must affirm Defendant’s convictions because there is a rational basis for the jury’s finding that Defendant was not legally insane at the time he shot his parents.

Fact Witnesses

Detective Mark Herford testified that Defendant was not present when police arrived at the Bailey residence on the date of the offenses. Defendant left the scene without his wallet, drove until he ran out of gas, and left his vehicle on 14the side of the road. He was subsequently located under a bridge in Woodville, Mississippi. When Defendant was found, he was only wearing boxer shorts.

The report of Officer Adam Speeg, the officer who found Defendant on September 13, 2007, recounted Defendant’s interaction with him and was read to the jury as follows:

When I first made eye contact with Mr. Bailey he was walking underneath the southbound side of the Homochitto River Bridge wearing nothing but boxer shorts. After walking to and making physical contact with Mr. Bailey, he seemed to be nervous at first but got more relaxed as we started to converse. When asked what he was doing underneath the bridge, he stated that he was scared to walk on the roads because somebody might be looking for him. I asked who would be looking for him and he said he didn’t know. When asking him what his name was, he did not hesitate to tell me. When asked about where his truck was, he said he wasn’t sure. I asked about his clothes and he stated he took them off to swim the night before, and when the river got high, the water took his clothes. After seeing my patrol car, Mr. Bailey asked if I was a Mississippi Policeman. After asking him if he was cold and hungry, I told him that I would get him something to eat and something to wear if he came with me. He agreed to wear handcuffs and come with me. While we were on our way back to Woodville, Mr. Bailey did most of the talking. He would ask common questions about direction of travel. He asked how far to the nearest town, where was the closest road back to Louisiana. Mr. Bailey stated that after he left, he was thinking about going back to Louisiana. He would ask about my family and where I was from. He also asked little questions about the town of Woodville, such as what kind of jobs were there here, what was there to do on the weekends. When we got into jail the conversation slowed and Mr. Bailey stopped talking all together. During my entire contact with Mr. Bailey, he made no comments about his family or showed any remorse towards anything. He stayed relatively calm throughout our time together and did not demonstrate any signs of aggression or anger.

Deputy Joanne Farris went to Mississippi to pick up Defendant on September 14, 2007. Deputy Farris testified that Defendant was calm, polite, and happy he was going home. He responded appropriately when she asked him to do something. Deputy Farris testified that Defendant did not complain of hearing voices.

| ^Detective Herford interviewed Defendant on September 14, 2007. Summarized portions of that statement follow.

When asked why he shot his parents, Defendant said he did not “shoot them or murder.” Defendant stated he was walking in the hall with a gun, his father asked if it was loaded, Defendant proceeded to check, and somehow touched the trigger. Defendant reported holding the pump shotgun at his waist.

Defendant admitted throwing the gun over the bridge because he knew he would have to make a statement, and he did not want to “get in too much pressure and not make the right statement.” Defendant further stated that he had to try to run a while to get it straight in his head because he thought he murdered them and had done it on purpose because it happened so quickly.

Defendant went on to tell police that the gun used to shoot his parents was in his room, and he loaded it while in the room. His father was leaving his own bedroom and asked Defendant if the gun was loaded. Defendant checked the gun and bumped the trigger. Defendant then stated he shifted the gun. He noted that he forgot that the gun was still loaded. He then stated he backed up and did not know what happened after that.

Defendant did not know where his father had been shot and did not look at him afterward. Defendant stated that he got scared, blacked out, and ran. He then grabbed the keys from his room. He did not check on his father and did not think or know his father was dead.

Police told Defendant his father had been shot in the side of the head, and the bullet exited through the top of his head. When asked how this occurred, Defendant said he once struck his father and had a knife. He then called police because he needed help.

IfiDefendant stated that it might be possible that he aimed the gun at his father. He then stated it might have happened exactly like police were saying. Defendant said he was having “bad voices” at the time. He also informed police that he was waiting on his medication to be increased. Defendant told police he was hearing voices that night. He further indicated he was “numb feeling.” He said he did not feel angry.

Defendant did not know how close he was to his father when he shot him. Defendant said he did not put the gun to his father’s head and pull the trigger. When asked if he raised the gun and shot his father, Defendant said: “That bound to have been what happened. That, that sounds like what happened.”

Defendant stated that after he shot his father, he shifted the gun, walked back, turned his head, saw someone in the kitchen whom he did not know, and “shot 'em.” When he looked down, it was his mother. Defendant stated he realized it was his mother after he fired the gun. Defendant said he intended to shoot the person but did not know it was his mother. Defendant further stated he did not say anything to her because he could not get his thoughts together.

Defendant told police he thought about his parents lying there and figured he would get away from the family long enough “cause his family is strong about killing.” Defendant then laughed. He agreed that at that point, he knew what he had done was wrong. He knew if he waited for his family to get there “they might go in an outrage.” Defendant further agreed that he knew he messed up and had done something bad. He said he wanted to get out of the way until police got there and saw what happened. He thought his brother would report the events to police when he got home from work at midnight.

17Pefendant denied picking up the spent shells from the floor. He stated he went into his room and got all his stuff. He further stated he grabbed all his shells and threw them over the bridge.

Defendant told police he went driving around to wait until the case was written up. When he went outside, he shifted the gun to make sure it did not have any shells in it. He then drove to Woodville and threw the gun and shells. He said he threw the gun where someone would find it. He then stated “when I got my mind clear.”

Defendant said he was afraid to call 911. When asked if he was afraid of getting in trouble, he said, “I guess.” Defendant wanted someone to be at the house when he came back so, if it was murder, he would not harm anyone else.

Defendant stated that while driving, he passed Angola, looked back, and said he might go back there. A few miles later, he ran out of gas. He then ended up at a creek. Defendant stated he drank river water. While under the bridge, a thunderstorm washed away his clothes. He later saw police and asked for a ride home. Defendant stated it was possible he was under the bridge hiding to try to gain time to get his story straight. He then stated he did not go in public because he did not have clothes on.

Defendant said he knew not to talk back to the voices he heard because no one was around. He described the voices as constant. He then stated he could not understand the voices. He indicated the voices did not tell him what to do. Defendant told police he was schizophrenic and took medication. He stated the medication made him slap himself.

Defendant was again questioned about the offenses. He said his father came out of the room yelling. Defendant stated he must have thought his father had his guns. He then stated “they’ heard him shift the gun, and “they” came out. He said 18it was loud, but nobody came out, then somebody came out. He then said, “[T]hey was [sic] coming out and they heard me shift the gun and gonna [sic] come out and find out who I was and shoot me.” He further said his parents were not there when “they” came out. He said he thought someone was after him. He then said “it was like they was [sic] coming, it was like voices coming out with guns.”

Defendant indicated he thought his mother was dead. He then admitted gathering things in the home and stepping over his father a couple of times. When asked if he went back in the kitchen to see if his mother was moving, Defendant began talking about his uncle firing an automatic weapon at Defendant’s home. Defendant was then told his mother was alive. In response, he asked where she was hit. Defendant subsequently said he did not plan the events, but they did happen.

Detective Herford testified that police had received earlier reports involving Defendant. On April 19, 1995, police were called to Welcome Pentecostal Church by Hank Cooley who informed police that Defendant was inside the church threatening suicide and was not acting normal. Deputy Hall spoke to Defendant. Defendant told Deputy Hall that he was dead. When asked what he meant by dead, Defendant said he did not fit in “here.” When asked if he would like to get help, Defendant stated he would like to go to Hopewell Cemetery. Defendant further told Deputy Hall that Billy the Kid was buried in his back yard and that Jesse and Frank James visited him the other day. Defendant spoke of going to cemeteries and seeing people that were not there. Defendant was transported to the emergency room at Beauregard Memorial Hospital. Dr. Coley Duncan diagnosed Defendant with acute psychosis. Defendant agreed to be transported to Crossroads Mental Health Facility in Alexandria.

IsOn February 24, 1998, Dorothy Bailey made a missing persons report. She informed police that in the morning hours, Defendant advised her and her husband that he was going to the First United Pentecostal Church in DeRidder and had not returned home. Dorothy informed police that Defendant had been admitted to Charter Hospital in Lake Charles two years before. Dorothy was worried Defendant may be having mental problems similar to those that occurred in 1995. On March 1, 1998, Dorothy informed police that Defendant called home from Texas on February 27, 1998. Dorothy did not wish to reveal where Defendant called from and what had happened to his car. She further stated her son and husband had gone to pick up Defendant, and he was home and well.

On July 7, 1998, Defendant called police and told them he needed some help before he killed his father. Two deputies contacted Eugene Bailey who stated Defendant had mental issues, and his medication had been changed. Defendant told police he did not want to stay with his parents and wanted to leave. He further stated that if he stayed with his parents, he would kill them. Defendant was transported for evaluation.

Dr. Charlotte Fowler worked at Beauregard Mental Health Clinic in 2007. She treated Defendant on three occasions. Dr. Fowler testified that Defendant had been diagnosed with schizophrenia. She saw Defendant on September 6, 2007. At that time, he denied having hallucinations and homicidal tendencies. Defendant was worried about a job he was starting and wanted Dr. Fowler to increase his medication, which she did.

Deputy Terry Ray, an LPN, administered medication to Defendant at the Beauregard Parish Jail. Deputy Ray testified that at the time of trial, Defendant was taking three milligrams of Risperdal twice a day. Deputy Ray testified that during the three years she worked at the jail, Defendant never reported hearing Invoices, and she never saw him respond to voices. Deputy Ray worked Monday through Friday from 6:00 a.m. until 4:30 p.m. She saw Defendant twice a day when she gave him medicine.

Deputy Ray testified that Defendant was taking the following medications until approximately three-and-one-half years before trial: 1) Atenolol — 50 milligrams once a day for blood pressure; 2) Diovan 80/12.5 milligrams once a day for blood pressure; 3) Haldol — twice in the morning and three times in the afternoon for psychosis; 4) Cogentin — 2 milligrams twice a day for psychosis; 5) Lexapro — 10 milligrams twice a day for depression; 6) Tra-zodone — multiple uses; 7) Zyprexa — 5 milligrams once a day for psychosis.

Deputy Ray was asked to read from Defendant’s “Mental Health” records dated January 29, 2008, which stated: “ T have been struggling with the voice. I don’t want to be around ‘something’ people.’ ” Deputy Ray took that to mean that Defendant had been struggling with hearing voices.

Dorothy Bailey testified regarding the offenses as follows:

When I seen [sic] Joel first, he was in the living room walking kind of in an angle that way, and he was crouched down in a position, you would think it was like a — a somebody in combat hunting an enemy, you know. And I — when he swung, I heard a click and I never saw the gun to my knowledge — I don’t— I didn’t see the gun, but I heard it click when he turned, and I saw his eyes, and that’s all I saw. And — then I remember my husband’s feet and legs, I saw them and undoubtedly I crawled to him, because I remember shaking his legs and I knew, you know, he was — had died, you know. So, and the next really clear memory I have is my brother was shaking me while we were riding.

Dorothy did not remember seeing Defendant run from the house. Additionally, she did not recall if a commotion was occurring or seeing Defendant with a gun right before he fired it. Dorothy testified that the night before Defendant shot her, she saw his eyes. She testified “that was not Joel. That was not Joel. I know, that was not my Joel.”

_[nDorothy testified regarding Defendant’s behavior and mental condition. She testified that in the beginning, Defendant was depressed and had a nervous breakdown. Prior to Defendant being admitted to Crossroads, he was “exhibiting symptoms of you know restlessness like pacing, really just pacing and — and snapping fingers just over and over for — this for long periods of time. Starting to see and hear things that wasn’t [sic] there....” He was also mumbling and talking to himself a lot. He told his parents he was hearing voices and noises. Additionally, he saw people in trees in the woods. Dorothy testified that this behavior was erratic.

Dorothy related that in 1998, Defendant held a barbecue fork and told his father, “Now, daddy, don’t try to stop me, cause I’m going to call them and let them come get me.” Dorothy testified that Defendant had received new medicine three days before that incident, and he was subsequently taken to Moss Regional Hospital. Dorothy said there was no conflict or altercation at that time. When questioned about a report indicating she said there was an altercation between Defendant and his father, Dorothy testified as follows:

Joel — I was there when my husband gave the statement. He told the deputy that Joel stood with a barbecue fork, not a knife, and he said, “Daddy, I need to call them, I don’t [sic] to ever hurt anybody. I don’t want to hurt no one.” So he called them himself. My husband said he sat down across the room, and said It’s okay, Joel. It’s going to be okay.” Now what that is, I don’t know. But that’s what he told.

She again stated there was no altercation at that time.

Dorothy was asked how Defendant’s symptoms were during the “time period prior to when this incident occurred.” She testified his symptoms were getting more pronounced. Dorothy indicated that a month to two months before the offenses, Defendant was a little more agitated, and she and her husband were getting concerned. Defendant was showing signs of schizophrenia returning. Two 112weeks before, he was starting to really hit himself and mumble. Dorothy testified that at her urging, Defendant told the doctor at Mental Health on September 6, 2007, that he needed more medication. The prescription for the increased dosage of medication was left at the pharmacy but not filled. Dorothy testified that Defendant had all the signs of an oncoming episode.

She further testified about Defendant’s condition as follows:

He was starting to have more signs of his illness, and we could hear in his room, he was really starting to hit himself a lot and jerk chairs, and he was talking a lot to himself, seeing things and he said hearing voices. So I told him, you tell them to put your medicine back up.

Dorothy testified that she did not believe Defendant knew what he was doing when he shot her and her husband.

Numerous other family members testified regarding Defendant’s long-standing history of mental illness and provided detailed facts of bizarre incidences involving Defendant.

Dr. James Anderson was qualified as an expert in forensic psychiatry. Dr. Anderson testified that he kept records of the cases that he had been involved in since 1998. He was asked to give an opinion as to sanity in fifty-three cases, and, in ten of those cases, he felt the defendant was mentally ill at the time of the offense.

Dr. Anderson first became involved with Defendant when the trial court requested that he evaluate Defendant’s competency to stand trial. He initially interviewed Defendant for sixty-five minutes at his office on October 18, 2007. At that time, he determined Defendant was competent to stand trial. Dr. Anderson was later hired by the defense to determine Defendant’s sanity at the time of the commission of the offenses.

11sDr. Anderson reviewed letters and maps found in Defendant’s bedroom trash can; medical records from Beauregard Parish Mental Health Center Institute for Neuro-Psychiatry and the Beauregard Parish Jail; legal records including statements made by Defendant, Dorothy Bailey, Landry Bailey, Thomas Gray, Stuart Bailey, Lena Bailey, and Joanne Farris; and other legal records including the warrant, the arrest report, the arrest register, offense report, criminal history report, property receipt statement, probable cause statement, waiver of legal rights, and the answer to Defendant’s motion for discovery and inspection. He also reviewed his previous competency evaluation, miscellaneous records such as notes Defendant had written on an inmate request form, the supplemental incident report, the Beauregard Parish Jail Complex incident report, and a Woodville Police Department report. He also interviewed Dorothy Bailey for one hour.

Dr. Anderson interviewed Defendant a second time on September 26, 2008, for ninety minutes. Neither of the interviews was recorded. During those interviews, Defendant never indicated he shot his parents because he was mad at them.

Dr. Anderson diagnosed Defendant with disorganized or undifferentiated schizophrenia. Dr. Anderson explained that schizophrenia is a psychotic disorder of thought process and thought content. He explained that Defendant had auditory, visual, and command hallucinations and delusions. Dr. Anderson testified that it was more common for an individual with a psychotic thought disorder to fake wellness than it was for a criminal to fake illness. He further explained that people with psychotic thought disorders want to be well and will not tell people they are hearing voices and seeing things. Dr. Anderson testified that even though a person is maintained on medication, that person can have exacerbations and remissions or periods of time when the disease is worse or better.

114Pr. Anderson testified regarding Defendant’s sanity as follows: “It’s my opinion that he has a serious mental disease or defect; that disease is schizophrenia, and that as a result of his mental disease at the time this event occurred, he was not capable of distinguishing right from wrong, with reference to his conduct.” Dr. Anderson further testified that it was his opinion, based on reasonable agreeable medical certainty, that it was more probable than not that Defendant’s symptoms that rendered him insane existed at the time he shot his mother and father.

Dr. Anderson stated that a person could be actively psychotic and be legally sane. Dr. Anderson further stated he thought Defendant knew killing was not right. Dr. Anderson was asked about Defendant knowing right from wrong and testified as follows:

[D]id he know that he was shooting his father and then his mother and did he know that he was doing something wrong? No, I don’t believe he did. I believe he was in a psychotic state of mind and he didn’t cognitively consciously murder his father. At some point did he recognize some horrid terrible thing had happened and he left? Yes. But he’s never given a clear description of what — what that was. Why he did it? What the circumstances were around it? I don’t think he knows. I think what happened after that was his response to something terrible happening. And I think the records are consistent and bare [sic] that out. Knowing what I know of psychotic thought disorders.

Dr. Anderson was questioned about Defendant’s statements during the mental health examination conducted on September 26, 2008, as follows:

Q Okay. I mean he tells you that I put 2 shells in the gun, 1 for mom and 1 for dad. That’s what he told you.
A Yep.
Q I mean that’s — he was — how—how can we — how can we interpret that any other way than his recollection to you is he was going to kill his mom and dad.
A I agree. I think this case is fraught with inconsistencies. And I know what he said. And — and I — he also said—
Q Okay. Let me just stop you just for a second if you don’t mind. “I — I—I didn’t have no real motive for it. I just done it.”
A Yes.
Q “When you ain’t [sic] feeling good about your own life, you put it out on your mom and dad.” He told you why he did it; didn’t he?
A He told me how he’s putting it together at that point in time. I think it’s fair to say that I certainly didn’t leave this kind of information out-of my report. I know that this raises questions. It raised questions in my mind. I have to put it together. This is what he said and this is after the fact. After the fact an individual who shot and killed someone, if they’re psychotic and delusional at the point in time and they clear some, they have to put it together in their own mind, too. He’s put it together in a number of different ways. And this was one of the ways he — he told me one thing, he told other — you know professionals other things. This is what he said at that point in time. I agree. Then he said “I thought I would be a warrior. I’m going to shoot mom and dad, maybe it was a movie I was watching. I didn’t have no real motive for it.” Maybe it’s a movie he’s watching? What does that have to do with anything? And it’s — but—that—it’s in that same statement. Maybe it’s a movie I was watching. But — but—so he’s been consistent in his inconsistencies. I — I don’t know how else to put it. He’s either inconsistent because he’s manipulative, lying and malingering in his own best interest in trying to get out of. But if that’s the case wouldn’t look like this. He’s not doing a very good job of it. It’s in the context of Psychosis. He’s so disorganized he’s not able to give a coherent history of the events that occurred. It’s changed what in this evaluation, in the account of the incidents with the detectives. I’m sorry I — prognosticate.

Dr. Anderson agreed that leaving the crime scene and disposing of the weapon were behaviors that one would expect from an individual who knew what he did was wrong.

Dr. Charles Vosburg, an expert in forensic psychology, evaluated Defendant to determine whether he was competent to proceed to trial and determined Defendant was competent to proceed. He reassessed Defendant after he returned from the forensic hospital and again found Defendant competent to proceed. Dr. Vosburg used the same records as Dr. Anderson in determining Defendant’s sanity at the time of the offenses. He testified that Defendant is a “very, very fragile schizophrenic.” Dr. Vosburg met with Defendant on March 21, 2011, to evaluate [ 1fihis sanity at the time of the offenses. Dr. Vosburg testified that during the three times he met with Defendant, Defendant never said he shot his mother and father because he was angry with them.

Dr. Vosburg testified that:

it’s not a clear cut 100 percent but I err on the side that he did not know right from wrong at that time, because in my opinion the preponderance of the evidence indicates me to lean that way — or suggests that the data that I have seen would suggest that given my experience with similar cases and my history of evaluating these individuals and what he presented to me.

He indicated his opinion was based on a reasonable degree of psychological certainty and rose to the level of more probable than not. Dr. Vosburg agreed that at some time after the offenses occurred, Defendant realized something happened.

Dr. Vosburg stated that during the interview, Defendant’s thoughts were disorganized; he was naive, gullible, and easily-led. Defendant could be “slightly pressed into agreeing with a variety of things because of his childlike orientation.” Dr. Vosburg testified that he believed a person could be actively psychotic and still be legally sane.

Dr. George Seiden was accepted as an expert in forensic psychiatry. Dr. Seiden was employed by the State a month or two prior to September 2009 to render an opinion as to Defendant’s sanity at the time of the offenses. Dr. Seiden diagnosed Defendant with paranoid schizophrenia. Dr. Seiden opined that despite Defendant’s psychotic illness, he was capable of distinguishing right from wrong at the time he shot his parents; thus, he was sane at that time. Dr. Seiden testified that a person can be psychotic and still meet the standard for sanity.

Before making his determination, Dr. Seiden interviewed Defendant for two hours at his office in Shreveport. Dr. Seiden noted Defendant had a flat affect, as schizophrenics do not display emotion in their faces. Dr. Seiden also noted 117Pefendant had occasional derailment of thought, which meant he put thoughts together that did not seem to go together. He further noted paranoid delusions. Dr. Seiden testified that Defendant’s ability to recall and relate facts pertaining to his actions and whereabouts was impaired. Dr. Seiden stated that Defendant provided varying versions of the events of the night in question. Further, he was not capable of testifying. At the time of the evaluation, Dr. Seiden was not sure Defendant could be restored to competency in the foreseeable future.

Dr. Seiden relied on the statements Defendant made during the interview to determine he was sane at the time of the commission of the offenses. Defendant told Dr. Seiden he was angry at his father, angry enough that he wanted to kill him. Further, he shot his mother because he felt she was at fault, too. Dr. Seiden was aware that Defendant never told police he was mad at his parents.

Dr. Seiden testified that Defendant assaulted his father and threatened to kill his parents in 1998. His mother stated it was “yet one more time that Joel was trying to leave and his father intervened.” Defendant’s father tried to stop him, and it resulted in a physical altercation in which Defendant threatened to kill his parents. Dr. Seiden testified there were similar periodic episodes.

Dr. Seiden testified Defendant gave various versions of his confrontation -with his father. However, Defendant was consistent in stating that he shot his father then his mother. As soon as he did that, he grabbed the keys, the shotgun, the shells, and ran. In Woodville, he told police he was not walking on the road because he was afraid someone would see him, which was another indication he knew he had done something wrong.

Dr. Seiden testified that Defendant was always schizophrenic and was variably psychotic, but how psychotic he was could change from time-to-time but not moment-to-moment. Dr. Seiden testified there would be a gradual | ^deterioration and a gradual improvement. He said, “it is over days that mental status changes.”

Dr. Seiden further testified regarding what he considered in making his determination as follows:

A Well, what has been described is that he shot his father and then shot his mother. Immediately ran and got his keys, the shells to the shotgun, and left the house, got in the truck, drove to the first bridge where he could throw the gun — the gun and the shells away and threw them over the bridge into a creek and then left. And he made a statement — he explained that by — behavior by saying that he left because he — you know wanted to call 911 but he knew that he would be in trouble. And that if anyone showed up and saw what he did they would — they would bé — they would be in outrage. And so he knew, he wanted to go back, but he knew that he couldn’t because of — because of the potential consequence to him if he returned to the scene of what he at some point described as a massacre.
Q He also expressed some fear of retribution by family members; did he not?
A Well — well that’s what I meant by the — the consequences.
Q I’m sorry. Okay. Now after he left, throws the gun away, what — what are your thoughts about what he ended up doing from there on?
A Well then he kept driving and he— he at some point made the statement he knew he couldn’t come back again because of the consequences. And he drove till he ran out of gas, and then got out and walked off the road as I said before. And he was off the road because he was afraid that people were looking for him. And he didn’t want to be found. And so again that — there’s this consistent pattern that — that for me is hard to explain any other way. Even with his psychotic disorder.

Dr. Seiden testified that his opinion was pretty strong: more likely than not, with reasonable medical certainty, Defendant knew right from wrong at the time of the offenses.

In support of his argument that he was not sane at the time of the offenses, Defendant contends the State failed to rebut the testimony of Drs. Anderson and Vosburg, finding that he did not know right from wrong at the time of the commission of the offenses. Defendant contends that if he left home trying to 119evade authorities, he would have taken his wallet and money with him, would not have given the Woodville police officer his correct name, and would not have' drawn a map to where the shotgun and shells were disposed of. Further, if he knew he killed his mother and father, he would not have sat down and tried to write them a letter.

The State contends the most compelling evidence against Defendant was his own words and actions following the crimes. The State asserts that after Defendant shot his parents, he took the gun and some shells and left the scene. He then threw the items over a nearby bridge and drove to Mississippi, where he hid out for several days. In support of its claim that Defendant’s actions indicated he knew right from wrong, the State cites State v. Armstrong, 94-2950, p. 13 (La.4/8/96), 671 So.2d 307, 313, in which the supreme court noted, “Indeed, the most significant evidence of ability' to distinguish right from wrong in many insanity defense cases is evidence of the accused’s attempts to hide evidence of the crime.” The State maintains that Defendant’s own expert, Dr. Anderson, testified that things done by Defendant such as leaving the scene and throwing away the gun were behaviors that indicated he knew right from wrong.

The State notes that following his arrest, Defendant gave a statement wherein he indicated he knew he had done something wrong. The State further notes this admission came after Defendant first attempted to explain the shooting of his father as accidental.

The State points out that another expert called by Defendant, Dr. Vosburg, admitted that the sanity issue was a close question, and he chose to err on the side of finding that Defendant was insane. The State contends the jury chose to believe the testimony of Dr. Seiden, who testified that Defendant knew right from wrong at the time of the offenses.

_[2gThere is no question that Defendant had been suffering from schizophrenia for a long time and took medication for that illness. Several lay witnesses testified regarding his mental health history and his actions prior to and after September 6, 2007.

Dr. Anderson opined that Defendant did not know right from wrong when he committed the offenses. However, Defendant’s behavior after the offenses was what one would expect from an individual who knew right from wrong. Dr. Vosburg also opined that Defendant did not know right from wrong at the time he committed the offenses. However, Dr. Vosburg testified that the issue was not one hundred percent clear cut, and he erred on the side that Defendant did not know right from wrong. He further stated that data he reviewed placed his determination slightly over the line toward insanity, but there were some factors that would indicate that Defendant was sane.

Despite Dr. Seiden’s failure to view the video of Defendant’s statement to police and review the letters that Defendant wrote prior to committing the offenses, he opined that Defendant was sane at the time he committed the offenses.

In State v. Sharp, 418 So.2d 1344, 1348 (La.1982), the supreme court stated:

In the present case, the evidence (particularly the medical evidence) was in substantial conflict, and there was ample evidence to support either verdict the jury decided to render. When there is conflicting evidence on the issue of insanity at the time of the offense, the reviewing court should accord great weight to the jury’s resolution of the conflicting evidence (as long as the jury was properly instructed and no evidence was prejudicially admitted or excluded), and the jury’s verdict should not be overturned unless no rational juror could have found, on the evidence viewed in the light most favorable to the prosecution, that defendant failed to prove by a preponderance of the evidence his insanity at the time of the offense.

As in Sharp, 418 So.2d 1344, there was conflicting evidence regarding Defendant’s sanity at the time he committed the offenses. We cannot conclude that the evidence was insufficient for the jury to reject the opinions of Drs. |21Anderson and Vos-burg that Defendant was insane when he shot his parents. The burden of proof was upon Defendant, and the jury’s finding that that he failed to carry that burden was not without support in the record. Thus, this assignment of error lacks merit, and Defendant’s convictions are affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant contends the trial court erred in denying his motion for new trial. In his motion for new trial, Defendant asserted the verdict was contrary to the law and the evidence.

The denial of a new trial based upon La.Code Crim.P. art. 851(1) is not subject to review on appeal. State v. Giles, 04-359 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied, 04-2756 (La.3/11/05), 896 So.2d 62.

DECREE

Defendant’s convictions are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GREMILLION, Judge. PAINTER, J.,

license: Public Domain

text:
    Kenneth N. HAWKINS v. UNUM LIFE INSURANCE COMPANY OF AMERICA.
    No. 11-1156.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2012.
    Richard E. McCormack, Kelly G. Juneau, Irwin, Fritchie, Urquhart, & Moore, New Orleans, LA, for Defendant/Appellee, UNUM Life Insurance Company of America.
    Kenneth N. Hawkins, In Proper Person, Shreveport, LA, for Plaintiff/Appellant, Kenneth N. Hawkins.
    Court composed of ULYSSES GENE THIBODEAUX, Ghief Judge, JOHN D. SAUNDERS, J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

hThis matter involves the timeliness of payments of the proceeds of two long-term disability policies. Plaintiff/appellant, Kenneth N. Hawkins, appeals a summary judgment granted in favor of defendant/appellee, UNUM Life Insurance Company of America. Hawkins also complains of the trial court’s refusal to grant a motion for summary judgment of his own.

FACTS

Hawkins maintained a law practice in Lafayette, Louisiana. His practice mainly consisted of litigation. On October 3,1998, Hawkins was involved in an automobile accident. He experienced neck and lower back complaints for which he was treated by several physicians, including Dr. John Cobb, a Lafayette orthopedic surgeon, who initially treated Hawkins conservatively, including medications and physical therapy. The medical records, particularly those of the physical therapist, indicate that Hawkins continued to practice — or attempted to practice — law until closing his practice for good in May 1999.

Hawkins had purchased two long-term disability insurance policies from UNUM, both through the group created by the members of the Louisiana State Bar Association and offered by Gilsbar, Inc. The first policy was issued with an effective date of November 1, 1994, although Hawkins maintains the policy was purchased in 1988; for purposes of this appeal, the effective date of the policies is of no moment. This policies bears policy number RXN 1019, and will be referred to simply as the “'94 policy.” The second policy (the '98 policy), bears an effective date of July 20, 1998, and is numbered RXN634480. Hawkins initiated claims against both policies.

UNUM requested an independent medical examination (IME) of Hawkins by Dr. Jack E. Hurst. Dr. Hurst opined that Hawkins suffered no objective deficits 12and was not disabled. Later, though, a discogram performed on Hawkins demonstrated that he had a herniated disc at the C5-6 level. On November 2, 1999, Dr. Cobb performed a cervical fusion.

UNUM had Hawkins’ medical records reviewed by Dr. Richard D. Corzatt. Dr. Corzatt opined that a typical patient would take three to six months to recover from a cervical fusion. He felt that Hawkins would probably be able to return to at least part-time law practice after that. If Hawkins’ recovery lasted longer, UNUM should consider another IME and activity analysis. There is no indication that either of these courses was considered by UNUM.

Hawkins also underwent a lumbar fusion in July 2000.

Under the conditions of both policies, a claimant has thirty days from the date of disability to notify the company of a disability, and ninety days within which to provide proof of his claim. The '94 policy provides that “‘disability’ and ‘disabled’ mean that because of injury or sickness the insured cannot perform each of the material duties of his or her regular occupation.” “ ‘Partial disability’ and ‘partially disabled’ mean that because of injury or sickness the insured, while unable to perform all the material duties of his or her regular occupation on a full-time basis, is: 1. performing at least one of the material duties of his or her regular occupation or another occupation on a part-time or full-time basis; and 2. earning at least 20% less per month than his or her indexed pre-disability earnings due to the same injury or sickness.” The amount of a partial disability benefit is calculated by subtracting the insured’s current income from his pre-disability monthly income, as determined by the insured’s W-2 from the calendar year before the disability arose minus his current earnings, and dividing that number by his pre-disability income, then multiplying that number times the policy’s monthly benefit amount.

|sThe '98 policy does not provide for “partial disability,” but rather for “residual disability,” which is defined as “Your [the insured’s] inability due to Injury or Sickness to perform: 1. one or more of the substantial and material duties of Your occupation; or 2. the substantial and material duties of Your occupation for as much time as is normally required to perform them.” The policy also requires that a residually disabled insured must be receiving regular care from a licensed physician other than the insured. A residual disability is not deemed to exist when the insured’s income loss is less than 20%. That loss is calculated by employing a formula that compares the insured’s income over the twenty-four months immediately before the disability arose with his income for each month he is claiming residual disability. If the resulting comparison shows that the insured’s income decline is less than twenty percent, no residual disability benefits are owed; conversely, if the decline is greater than eighty percent, it is deemed to be 100 percent.

Both policies provide defined benefit amounts in the event of total disability.

Hawkins initiated his claim for benefits in August 1999. He completed a claim form and forwarded same to Gilsbar. He filed suit against UNUM on December 23, 1999, alleging that he received no benefits and asserting his entitlement to total disability benefits and double indemnity penalties and attorney fees for UNUM’s failure to pay his disability benefits. During the pendency of the litigation, UNUM made two payments to Hawkins: $30,400.00 in total disability benefits for the period of January 31 through July 2, 2000; and $78,000.00 in total disability benefits for the dates of January 2, 2004 through March 2, 2006. However, the letter by which this draft was sent to Hawkins’ attorney indicated that this payment was for residual disability benefits at a rate of 100 percent for the period of October 5, 1998 through November 2, 1999.

|4The litigation proceeded at a snail’s pace until UNUM filed a motion for summary judgment in March 2007. Hawkins, who had posed his own motion for summary judgment in 2000, which was denied, filed a motion to re-urge summary judgment in his favor. Both parties supported their motions with affidavits and other attachments. The motions were heard on February 14, 2011. The trial court granted summary judgment in favor of UNUM and denied Hawkins’ motion. ' It is from this judgment that Hawkins appeals.

ASSIGNMENTS OF ERROR

Hawkins assigns the following errors:

1. The trial court erred in denying his motion for summary judgment.

2. The trial court erred in not referring the matter to trial on the merits.

3.The trial court erred in granting UNUM’s motion for summary judgment.

We will treat Hawkins’ second and third assignments of error as a single assignment because we view the outcome of the second assignment of error as dependent upon the third. We will address these issues first.

ANALYSIS

Courts of appeal review grants of summary judgment de novo, applying the same tests as do trial courts. Schroeder v. Bd. of Suprs. of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce ^factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

UNUM’s motion for summary judgment asserted that Hawkins’ claims should be dismissed because it had reasonable grounds to suspect that Hawkins was only residually or partially disabled, as defined in the two policies. This required comparing Hawkins’ pre-disability income with his post-disability income. UNUM maintained that it sought Hawkins’ 1999 federal income tax returns, but was not supplied with them until 2005. After it received Hawkins’ tax returns, it promptly paid him the benefits due under the two policies. These facts were all asserted in the affidavit of Mr. Jeffrey Denault, UNUM’s Assistant Vice President in its Benefits Operations division.

Hawkins, on the other hand, maintains that he sent UNUM his 1997 and 1998 income tax returns. He points out that the '94 policy provided that his benefits were to be based upon his tax returns for the calendar year preceding his disability, and the '98 policy benefits were derived from an analysis of the twenty-four months preceding disability. Accordingly, Hawkins maintains, delaying payment because he failed to promptly deliver his tax returns from 1999 was arbitrary and capricious, and violated La.R.S. 22:1821 because his 1999 tax returns were not germane to any determination of his benefits.

We find that a genuine issue of material fact does exist that precludes summary judgment. If, as UNUM claims, it needed Hawkins’ 1999 tax returns before it could analyze his claim, why did it make the 2000 payment to him for total disability for the period of January 31 through July 2, 2000? This payment was made at least four years before Hawkins supplied UNUM with his 1999 return. Another troubling issue is raised by the 2000 payment: Dr. Corzatt told UNUM | (¿hat Hawkins would be disabled for three to six months after his surgery. This payment was made for a period beginning almost two months after Hawkins’ cervical surgery, and ending before Hawkins had his lumbar fusion surgery. We find no record that Hawkins received any benefits for the period of disability that UNUM’s own medical examiner stated he could be expected to suffer after a fusion surgery. The record only reflects that Hawkins was paid benefits for October 5, 1998, through November 2, 1999, and for January 31 through July 2, 2000. No payments are reflected for the rest of November 1999 through January 31, 2000, nor for the disability period that Dr. Corzatt predicted would accompany the lumbar fusion surgery in July 2000.

There is no question that Hawkins was or is due benefits under these two policies. UNUM paid them. The question is whether they were paid timely and completely. These questions of material fact are not answered by UNUM’s submissions, and summary judgment was not appropriate.

The questions of material fact that preclude summary judgment in favor of UNUM also preclude Hawkins’ motion for summary judgment. Accordingly, Hawkins’ first assignment of error is without merit.

CONCLUSION

There exist genuine issues of material fact concerning the timing of the payments by UNUM to Hawkins and whether he is still owed additional payments. There is also an issue of material fact regarding UNUM’s potential liability for penalties and attorney fees and this issue is dependent upon the resolution of the former questions. The summary judgment in favor of UNUM Life Insurance Company of America is reversed. All costs of these proceedings are taxed to defendant/appel-lee, UNUM Life Insurance Company of America.

REVERSED IN PART AND AFFIRMED IN PART.

PAINTER, J., dissents and assigns written reasons.

PAINTER, J.,

dissenting.

[,I would affirm the trial court’s grant of summary judgment in favor of UNUM Life Insurance Company of America, finding that UNUM timely paid Hawkins under the long-term disability policies once it received satisfactory proof of loss. The record is clear that UNUM requested income information from Hawkins on April 14, 2000, and June 19, 2000, but the information was not received until April 12, 2005. The claim was paid in full on May 11, 2005, within the statutory period. Thus, summary judgment was appropriate pursuant to La. Code Civ.P. art. 966.


author: GREMILLION, Judge.

text:
    Michael & Kimberly D. McMILLIAN v. WESTWOOD MANOR NURSING HOME, INC.
    No. 12-54.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2012.
    Rehearing Denied July 18, 2012.
    Robert Justin Gáron, Silbert & Garon, LLP, New Orleans, LA, for Plaintiffs/Appellants, Michael & Kimberly D. McMilli-an.
    David Richard Sobel, Provosty, Sadler, Delaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellee, Westwood Manor Nursing Home, Inc.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

| tPlaintiffs/appellants, Michael McMillian and Kimberly D. McMillian, appeal the trial court’s grant of the exception of prematurity filed by defendant/appellee, Westwood Manor Nursing Home, Inc. (“Westwood”). The trial court maintained Westwood’s exception because the McMil-lians had not first submitted their claim to a medical review panel as required by the Medical Malpractice Act (“MMA”), La.R.S. 40:1299.47. For the reasons that follow, we affirm.

FACTS

Michael McMillian was a patient at Westwood following surgical procedures on his skull. The McMillians alleged in their petition that on January 15, 2011, two attendants arrived to transfer Mr. McMillian from his geri-chair to his bed. One attendant allegedly watched the other attempt to move McMillian. The working attendant lost his balance, and McMillian struck the wall with his head. The McMil-lians allege that Mr. McMillian had to undergo immediate surgery as a result of this incident and that he sustained severe and permanent injuries. The McMillians specifically alleged that Westwood failed to provide Mr. McMillian with the appropriate degree of care when transferring him from his chair to his bed, allowing only one aide to transfer Mr. McMillian, failing to properly train its employees in the appropriate methods of transferring a patient from chair to bed, allowing Mr. McMilli-an’s head to strike the wall, and other acts or omissions to be learned through discovery. They also alleged that Westwood was vicariously liable under respondeat superi- or (Master-Servant liability).

Westwood filed an exception of prematurity in response to the petition. Because Westwood is a “qualified Healthcare provider” for purposes of the act, it maintained that all such claims as the McMilli-ans’ must first be submitted to a |2medical review panel before suit can be filed. The trial court maintained Westwood’s exception. This appeal ensued.

ASSIGNMENT OF ERROR

The McMillians argue that the trial court .erred in finding that Westwood met its burden of proving that the alleged acts are governed by the Medical Malpractice Act.

ANALYSIS

Louisiana Revised Statute 40:1299.47(B)(l)(a)(i) requires that all claims against health care providers covered by the MMA must first be submitted to a medical review panel. The exception of prematurity is the appropriate procedural device to urge that a medical malpractice claim must first be submitted to a medical review panel before suit can be filed. Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116. The burden of proof rests with the exceptor. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782. The question before us is whether the McMillians’ claims are for medical malpractice.

The Medical Malpractice Act defines “malpractice” as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.R.S. 40:1299.41 (Emphasis added). The McMillians argue that the acts alleged do not satisfy the test for determining whether an act is “malpractice” for purposes of the MMA set forth by the Louisiana Supreme Court in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303. In Coleman, the supreme court established a six-part test to determine whether alleged acts are governed by the MMA: [1] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill; [2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; [3] whether the act or omission involved assessment of the patient’s condition; [4] whether the incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; [5] whether the injury would have occurred had the patient not sought treatment; and [6] whether the tort was intentional. Id.

We note that the allegations in the petition assert facts that fall squarely within the definition of “malpractice” in La.R.S. 40:1299.41(A)(13). As a civilian jurisdiction, we look first to the plain language of the statute, and only resort to interpretive analysis when there is some ambiguity. La.Civ.Code art. 9. We find no ambiguity in La.R.S. 40:1299.41(A)(13). Claims involving the handling of a patient, including loading and unloading, are covered by the MMA and must be submitted to a medical review panel.

CONCLUSION

The act of handling Mr. McMillian to transfer him from his geri-chair to his bed is covered by the Medical Malpractice Act. Their claims must be submitted to a medical review panel.

The judgment of the trial court is affirmed. Costs of this appeal are taxed to plaintiffs/appellants, Michael McMillian and Kimberly D. McMillian.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Michelle SHEFFIE v. WAL-MART LOUISIANA, LLC and Wal-Mart Real Estate Business Trust.
    No. 11-CA-1038.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Rehearing Denied July 19, 2012.

      H. Edward Sherman, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Sidney J. Hardy, Lou Anne Gwartney, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| gPlaintiff appeals the granting of summary judgment in favor of defendants, Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust. Because we find the trial court improperly considered evidence not officially offered and introduced, we vacate the judgment on appeal and remand the matter for further proceedings.

Factual and Procedural Background

On December 14, 2006, Plaintiff, Michelle Sheffie, filed suit in the Twenty-Fourth Judicial District Court against Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust (hereinafter collectively referred to as “Wal-Mart”) for damages resulting from personal injuries sustained when she slipped while shopping at the Harahan location store on December 27, 2005. After preliminary discovery was conducted, Wal-Mart filed a Motion for Summary Judgment |3asserting that Plaintiff cannot satisfy her burden of proof against Wal-Mart under La. R.S. 9:2800.6. Specifically, Wal-Mart asserts that Plaintiff cannot prove that the liquid substance she alleges caused her to slip was in fact present or that Wal-Mart had constructive or actual notice of the substance; further, Wal-Mart claims Plaintiff cannot show any temporal element demonstrating a specific period of time during which the liquid substance remained on the floor prior to the accident as required under La. R.S. 9:2800.6. Plaintiff filed an Opposition to Wal-Mart’s Motion for Summary Judgment attaching several exhibits including a video surveillance recording of the accident considered by the trial judge in rendering his judgment. Plaintiff also attached to her opposition a document titled “Customer Statement” completed by Plaintiff on the date of the accident, a claim form or accident reported completed by Wal-Mart on the date of Plaintiffs accident, an affidavit of a private investigator with an attached report analyzing the video |4surveillance, and excerpts from the depositions of Plaintiff and various Wal-Mart employees. Following the hearing on the motion, Plaintiff filed a supplemental opposition attaching additional exhibits including Wal-Mart’s written discovery responses and the declaration page from Wal-Mart’s commercial liability insurer. Based upon the record before us, it is unclear whether the trial judge considered any of this evidence in rendering his judgment.

On March 23, 2011, the trial court conducted a hearing on Wal-Mart’s Motion for Summary Judgment. The hearing consisted of entirely oral argument by counsel; no evidence was officially offered or introduced. The trial judge took the matter under advisement.

On March 30, 2011, the trial court granted summary judgment in favor of Wal-Mart. In its Reasons for Judgment, the trial court discusses the untimeliness of Plaintiffs opposition as follows:

As explained above, the plaintiff failed to file an opposition until the day before the hearing on the summary judgment motion. Defendants requested that this Court refuse to consider the opposition or any of the attachments. Because the plaintiff attached surveillance video of the incident and the area prior to the incident, the Court decided to allow the plaintiff some leniency to determine whether this video provided evidence to support the plaintiffs case.

The trial judge reviewed the video surveillance recording provided at hearing by Plaintiffs counsel and subsequently found that the video did not show whether any water was present on the floor prior to Plaintiffs accident. Thus, the trial court found that Plaintiff failed to meet her burden of proof under La. R.S. 9:2800.6. On April 12, 2011, Plaintiff filed a Motion to Extend the Deadline to file a Motion for New Trial. On April 14, 2011, Plaintiff filed a Motion for New Trial, asserting | Bthat she obtained new evidence in the form of an affidavit of a former Wal-Mart employee who monitored the video surveillance at the store location where Plaintiffs accident occurred. Plaintiff asserted that Wal-Mart purposefully withheld contact information for the former employee and further argued that the trial court’s granting of summary judgment in favor of Wal-Mart was clearly contrary to the law. Plaintiffs Motion for New Trial was denied by the trial court on June 17, 2011. This timely appeal follows.

We do not reach the merits of this appeal because we find the trial court erroneously considered evidence not properly before the court. Specifically, the videotape surveillance considered by the trial judge and referenced as a determining factor in rendering his judgment was never offered or introduced into evidence at hearing. Therefore, we find the judgment of the trial court must be vacated and this matter remanded for further proceedings.

Law and Analysis

On a motion for summary judgment, the burden of proof is on the mover. If the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C)(2). A motion for summary judgment is properly granted when the pleadings, depositions, answers to | (¡interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Audubon Trace Condominium Ass’n, Inc. v. Brignac-Derbes, Inc., 05-715, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1131, 1134.

When ruling on a motion for summary judgment, the trial court may consider “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any[,]” presented by the parties in support of or in opposition to the motion; those specifically enumerated documents need not be formally introduced into evidence at hearing if they are already “on file” or physically placed into the record prior to the hearing on the motion. See Newsome v. Homer Memorial Medical Center, 10-0564 (La.4/9/10), 32 So.3d 800, 802-03 (per curiam) (holding that depositions and affidavits considered must be “on file” prior to the hearing on the motion for summary judgment); Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 232 (holding that “[ajffidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal.” (Emphasis added)); Aydell v. Sterns, 98-3135 (La.2/26/99), 731 So.2d 189 (holding that information contained in affidavits and depositions submitted as attachments to a memorandum were properly before the trial court and appellate court for purposes of a motion for summary judgment); and Serv. One Cable T.V., Inc. v. Scottsdale Ins. Co., 11-1470 (La.App. 1 Cir. 2/10/12), 2012 WL 602209 (finding that “Article 966B specifically authorizes consideration of depositions ‘on file,’ even if simply attached to a memorandum.”).

|7The court may also consider other documents or things which do not fall within the specifically enumerated categories of documents listed in La. C.C.P. art. 966(B). However, this Court has held that “unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence.” Drury v. Allstate, Inc., et al, 11-509 (La.App. 5 Cir. 12/28/11), 86 So.3d 634; Mitchell v. Kenner Regional Medical Center, 06-620 (La.App. 5 Cir. 1/30/07), 951 So.2d 1193, 1197. Further, although La. C.C.P. art. 966(B) provides an exception for specific documents a court may consider on a motion for summary judgment without the need to formally introduce such documents into evidence at hearing, generally all other documents or things not enumerated in the article but relied upon by the parties must be verified or authenticated and officially offered and introduced into evidence. See Denoux v. Vessel Mgmt. Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88; Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277; and Drury v. Allstate, Inc., et al, 11-509 (La.App. 5 Cir. 12/28/11), 86 So.3d 634.

In this case, the trial judge apparently viewed and considered the video surveillance tape capturing Plaintiff’s alleged accident. The video at issue does not fall within a category of the enumerated exceptions provided in La. C.C.P. art. 966(B) and was never officially offered and introduced into evidence. As such, we find the trial judge erroneously considered evidence not properly offered and introduced at the hearing on Wal-Mart’s Motion for Summary Judgment and relied [«upon that evidence in rendering his judgment. Accordingly, we vacate the March 30, 2011, trial court judgment granting summary judgment in favor of Wal-Mart and remand this matter for a new hearing on defendant’s Motion for Summary Judgment.

JUDGMENT VACATED; MATTER REMANDED

      . Wal-Mart initially filed its Motion for Summary Judgment on January 23, 2009. However, the trial court granted Plaintiff's ex parte motion to continue the hearing on Wal-Mart's summary judgment motion to allow additional time for discovery. On February 3, 2011, Wal-Mart filed a Motion to Reset its previously filed Motion for Summary Judgment.

      . La. R.S. 9:2800.6 provides:
      A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
      C. Definitions:
      (1) "Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
      (2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
      D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

      . Plaintiff did not file her Opposition to Wal-Mart's Motion for Summary Judgment until March 22, 2011, one day before the hearing on the motion. At the hearing on their motion, Defendants urged the trial judge to refuse to consider Plaintiff's Opposition because it was not filed timely.

      . Plaintiff further makes a spoliation argument asserting that Wal-Mart, who had possession and control of the surveillance recordings, purposefully saved only twenty minutes of recording prior to Plaintiff's incident. We do not, however, reach this argument raised by Plaintiff.

      . Plaintiff filed a Motion for Leave to File a Supplemental Opposition to Wal-Mart’s Motion for Summary Judgment. On March 25, 2011, the trial court ordered that Plaintiff's supplemental opposition and the attachments thereto be accepted and filed in the record.

      . As previously stated, it is unclear whether the trial judge considered any other exhibits attached to Plaintiff’s untimely Opposition to Wal-Mart's Motion for Summary Judgment in rendering his judgment. Because it is unclear if the trial judge considered these documents, we do not reach a determination of whether such documents were properly before the court.

      . It is noted that the Customer Statement completed by Plaintiff, the Claim Form or Accident Report completed by a Wal-Mart employee, and the declarations page from Wal-Mart's commercial liability insurer also do not fall within any of the enumerated exceptions provided in La. C.C.P. art. 966(B).