author: Cooks, Judge.

text:
    Donna D. JOHNSON, et ux. v. STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT.
    No. 11-826.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 2012.

      James D. Cain, Jr., Barry A. Roach, Larry A. Roach, Inc., Lake Charles, LA, for Plaintiffs/Appellants, Donna D. Johnson, et ux.
    James Caldwell, Attorney General, Patrick M. Wartelle, Lafayette, LA, for Defendant/Appellee, State of Louisiana, Dept, of Transportation and Development.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   Cooks, Judge.

■ h FACTS AND PROCEDURAL HISTORY

Seventeen-year-old Casey Johnson, (Casey) the son of Donna D. Johnson and Anthony W. Johnson (Plaintiffs), died in a one-car automobile accident on Louisiana Highway 102 in Jefferson Davis Parish. Casey was returning from a visit at his girlfriend’s home around 8:00 o’clock P.M. The road surface was wet. As Casey’s vehicle entered a curve to the right, he lost control of it leaving the roadway to the right. His vehicle struck the headwall of a cement culvert running under the roadway, rolled over into the ditch, partially ejecting Casey, and trapping his head and neck between the vehicle and the ditch. Casey died as a result of his injuries. His parents filed suit for wrongful death against the State of Louisiana, Department of Transportation and Development (DOTD) alleging DOTD was either strictly liable, negligent, or partially at fault for the death of their son. Plaintiffs alleged the roadway was maintained in a hazardous condition because the headwall of the concrete culvert was slightly above grade and because the slope of the ditch was steeper than it should have been. DOTD maintained that the accident was caused solely by the negligence of Casey in failing to maintain control of his vehicle under the conditions at the time of the accident. DOTD further maintained there was no defect in the roadway, and that the head-wall and pitch of the slope were not a cause of Casey’s fatal injuries.

The jury returned a verdict in favor of DOTD finding it was not negligent, denying recovery to Plaintiffs. Judgment was signed dismissing Plaintiffs’ claims with prejudice. Plaintiffs appeal alleging four assignments of error. In Plaintiffs’ first assignment of error it is alleged the trial court erred in allowing DOTD to introduce a document into evidence which DOTD had not produced during discovery thus subjecting Plaintiffs to trial by ambush. The second assignment of error maintains that the trial court erred in allowing DOTD’s attorney to question 12Plaintiffs’ expert, Dean Tekell (Tekell), in the area of accident reconstruction even though he had not been tendered as an expert in accident reconstruction. Tekell testified that he did not perform an accident reconstruction of this accident. Third, Plaintiffs contend the trial court erred in allowing DOTD’s expert, Dr. Joseph Blaschke, (Blaschke), to testify as to accident reconstruction given that he admitted in pretrial discovery, and traversal, that he was not retained as an accident reconstruction expert nor had he conducted an accident reconstruction analysis of this accident. Lastly, Plaintiffs assert the jury’s finding of no negligence on the part of DOTD is manifestly erroneous because the record establishes “no reasonable factual basis for the findings of the trial court.” Finding no error in the trial court’s rulings, we affirm.

DISCUSSION AND LEGAL ANALYSIS

We have frequently set forth and explained the manifest error standard of review. In Billings v. State ex rel. Dept. of Transp. and Development, 01-131 (La.App. 3 Cir. 6/13/01), 826 So.2d 1133, 1140, we stated:

We may not set aside a jury’s finding of fact in absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). In applying the manifest error-clearly wrong standard, we must determine not whether the jury was right or wrong, but whether its conclusion as factfinder was a reasonable one. Mart v. Hill, 505 So.2d 1120 (La.1987). We are compelled to review the record in its entirety to determine whether the jury's finding was clearly wrong or manifestly erroneous. Id. We may not reverse if the jury’s findings are reasonable in light of the record when reviewed in its entirety, even if convinced that if we had been sitting as the trier of fact, we would have weighed the evidence differently. Sistler v. Liberty Mututal Ins. Co., 558 So.2d 1106 (La.1990).

After a full review of this record we cannot say the jury manifestly erred in concluding that DOTD was not liable for the injuries which caused Casey’s death. The jury’s finding was reasonable under the evidence presented. The evidence showed that Casey was travelling on a wet roadway at night and lost control of his vehicle. Although there was no evidence that he was exceeding the posted speed lalimit, there was expert testimony which opined that he was travelling too fast for the roadway conditions that night. Casey’s girlfriend testified that Casey was familiar with this stretch of highway as he had travelled it several times visiting her. Additionally, there was proper signage ahead of the curve warning motorists of the approaching curve.

Plaintiffs and Defendant offered expert testimony concerning whether the roadway was properly maintained and/or properly constructed. Plaintiffs’ experts, Defendant’s expert, and State Trooper Richard Fox all agreed that Casey’s vehicle was out of control when it left the roadway due solely to his own actions and 1) even if the slope would have been a typical slope for which a 3:1 slope would be required, Casey could not have regained control of his vehicle after it left the roadway; and 2) even if Casey’s vehicle had not collided with the concrete culvert it would have entered the ditch and rolled over as it was out of control when it left the roadway. Additionally, the jury heard expert testimony that the area of roadway where the accident occurred was not a typical cross-section requiring a 3:1 slope. Don Romero testified that he measured the slope at the scene and found the actual slope at this location was a gentler 3:1.8 slope. Plaintiffs’ expert disagreed. It was for the jury to make credibility determinations regarding expert testimony. We cannot say the jury manifestly erred in concluding that the decedent’s injuries were caused by his own negligence and in assigning no fault to DOTD. These were reasonable findings of fact.

Plaintiffs also assert that there should have been a “clear-zone” or established set-back for the purpose of allowing a motorist to go off the roadway without “the threat of serious bodily harm.” The evidence shows this roadway was built in 1936 and overlaid in 1962 at which time, as both Plaintiffs’ and Defendant’s experts agreed, there was no “clear zone” concept in place. Plaintiffs’ expert, Tekell, testified there has never been a major reconstruction or new |,(alignment of this roadway which would have required DOTD to bring this roadway up to existing standards. He also testified that this roadway was built in compliance with the American Association of State Highway Transportation Officials (AASHTO) standards in effect at the time it was constructed. Tekell testified at trial that the concrete abutment was “unreasonably hazardous” but also admitted that he did not reach that conclusion in his initial report. He testified that it was after he prepared his report when he discussed this terminology with Plaintiffs’ counsel. He further testified that as an expert witness in other accident cases he had described concrete headwalls like this one as acceptable and as not being unreasonably dangerous. Most importantly, Tekell testified that in his expert opinion, even if Casey’s vehicle had not hit the portion of the concrete culvert sticking up three inches above the ground, his automobile would have flipped over once he went into the ditch. He further testified that even if the slope had been maintained at a 4:1 ratio Casey’s vehicle would not have made it back onto the roadway. He opined the vehicle left the roadway out of control and was unable to re-enter the highway.

Plaintiffs further assert that DOTD is at fault for its failure to follow standards set forth by (AASHTO). We rejected this argument in Billings, 826 So.2d at 1141, stating “[A] review of this guide shows that the AASHTO standards were only recommendations, not mandates. Rather than show that the standards were mandatory such that DOTD had to follow them, this appendix repeatedly indicates that these standards are recommendations.”

Plaintiffs’ first three assignments of error relate to issues concerning the experts’ testimony and the propriety of allowing into evidence a document which was not provided to Plaintiffs during discovery. Plaintiffs’ insist it was error for the trial judge to allow Defendant to introduce a one-page document described as a Bi-Weekly Work Order. The trial judge apparently believed the document was | .^inadvertently left out of the stack of documents produced to Plaintiffs prior to trial.

In reviewing the evidentiary decisions of a trial court, this court must consider whether the particular ruling complained of was erroneous, and if so, whether the error prejudiced the complainant’s case. Reversal is not warranted unless the error prejudiced the complainant’s case.

Johnson v. First Nat’l Bank of Shreveport, 00-870, p. 29 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, 55, (citation omitted), units denied, 01-2770 (La.1/4/02), 805 So.2d 212; 01-2783 (La.1/4/02), 805 So.2d 213.

This document dealt with a work order for a different mile marker than the location of the accident. Mark Benoit (Benoit) with DOTD testified that the location referenced in this document was two-tenths of a mile from the mile marker at the site of the accident. The work order involved grading or excavating with a backhoe and did not relate to working on the slope of the highway. Plaintiffs were given the opportunity to cross-examine the state’s witness concerning this document. Plaintiffs do not show that this document has any relevance to the case at bar nor how Plaintiffs were prejudiced by the introduction of this evidence. Louisiana Code of Evidence Article 103(A) provides in pertinent part “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”(emphasis added). We find that introduction of this document into evidence, and the examination and cross-examination relating to the contents of the document did not adversely affect any substantial rights of Plaintiffs. This document offered little if any evidentiary value on the salient facts the jury was directed to determine.

Plaintiffs’ next assignment of error asserts that the trial judge erred in allowing Defendant to examine Plaintiffs’ expert concerning what Plaintiffs describe as “accident reconstruction testimony.” He was offered and qualified as an expert in Highway Design and Traffic Engineering. Plaintiffs assert that Tekell was not offered at trial in this case as an expert in accident reconstruction. [^Plaintiffs do not assert that Tekell is not qualified to be an expert on accident reconstruction. His own testimony demonstrates that he is indeed qualified to be an expert on that subject, and has been qualified as such by courts in the past. Plaintiffs did not want to qualify him as such in this case and instead used another expert for that purpose. A review of Tekell’s testimony reveals that in his deposition, and at trial, he gave testimony that appeared damaging to Plaintiffs’ case on causation. This appears to be an effort by Plaintiffs to negate the impact of Tekell’s testimony as their own expert by identifying certain aspects of his testimony as equal to providing an expert opinion on accident reconstruction.

The questions asked to Tekell on direct and cross examination were general questions about the accident and were asked other experts and lay witnesses including the state troopers who investigated the accident. These questions attempted to examine facts concerning the accident such as the fact that Casey lost control of his vehicle negotiating the curve on a wet road; the slope of the roadway embankment; the height of the cement culvert above ground level; the points of impact demonstrated by examining the car or photos of the car; and the roll-over of Casey’s vehicle. Tekell had the expertise to testify regarding these facts and to give his opinion as an expert as to what these facts indicated to him. He verbally made it clear to the jury during his testimony that he did not conduct an accident reconstruction and that he was not testifying as an accident reconstruction expert in this matter.

Plaintiffs make similar arguments in their third assignment of error contending the trial court erred in allowing DOTD’s expert, Blaschke to testify as to accident reconstruction. Blaschke admitted in pretrial discovery that he was not retained as an accident reconstruction expert nor had he conducted an accident reconstruction analysis of this accident. He reiterated that fact to the jury.

Nevertheless in both instances the trial judge allowed Blaschke and Tekell to 17answer Plaintiffs’ and Defendant’s questions concerning the accident and offer their opinions of what caused the accident and what Casey’s car did after leaving the roadway. The trial judge acknowledged that both experts were completely qualified to answer these questions.

Plaintiffs assert that allowing these experts to testify as to matters of “accident reconstruction” violates the principals set forth in Daubert. In both of these assignments of error Plaintiffs misapprehend what was set forth in Daubert. In Cheairs v. State of Louisiana, DOTD, et al., 03-680, (La.12/3/03), 861 So.2d 536, 540-41(alteration in original) the Louisiana State Supreme Court set forth the standard for determining the admissibility of expert testimony:

Admissibility of expert testimony in Louisiana is governed by La.Code of Evid. Art. 702, which provides as follows:
If the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The above article follows Fed. Rule of Evid. 702, according to Official Comment (b) (1988) to La.Code of Evid. Art. 702. A district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Official Comment (d), citing 3 J. Weinstein & M. Berger, Weinstein’s Evidence 702[02] (1981). See also Merlin v. Fuselier Const., Inc. 2000-1862, p. 12 (La.App. 5 Cir. 5/30/01), 789 So.2d 710, 718 [‘Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the discretion of the trial court.”] A district' court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Id,.; State v. Castleberry, 1998-1388 (La.4/13/99), 758 So.2d 749, 776.
In Daubert, the United States Supreme Court set a new standard to assist district courts in evaluating the admissibility of expert testimony. The new standard required the district courts to perform a ‘gatekeeping’ function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’ 509 U.S. at 589, 113 S.Ct. 2786. See also State v. Chauvin 2002-1188 (La.5/20/03), 846 So.2d 697, 700-01.
| ^Moreover, determination of the admissibility of expert testimony under La. Code of Evid. Art. 702 “turns upon whether it would assist the trier of fact to understand the evidence or to determine a fact in issue”. Official Comment (c), citing 3 Weinstein & Berger, 702[02].

In Cheairs, the state supreme court adopted a three-prong inquiry for determining the admissibility of expert testimony which was first articulated in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998).

[T]he admission of expert testimony is proper only if all three of the following things are true:
(1) The expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
There are three intertwined bases for excluding testimony under [Federal] Rule 702: (1) if the testimony will not assist the trier of fact; (2) if scientific evidence is not sufficiently reliable; and (3) if the particular expert does not have sufficient specialized knowledge to assist the jurors, (citation omitted).

Cheairs, 861 So.2d at 542.

A review of the testimony of Tekell and Blaschke, the testimony of Plaintiffs’ expert offered and qualified at trial as an expert in accident reconstruction, and of the state troopers who testified, demonstrates that the questions asked these witnesses were similar in many respects and were all aimed at affording the jury the opportunity to understand how this accident occurred and the factors involved in reaching a decision on causation of Casey’s fatal injuries. Tekell and Blaschke made it clear to the jury that they were not testifying as accident reconstruction experts, although they both possessed the qualifications to do so, and made it clear to the jury that they had not conducted the tests they would have conducted if they were going to be testifying in that expert capacity. They 19both gave their opinions of what the evidence they observed showed them about the accident. Plaintiff called and was allowed to present the testimony of an expert qualified as an accident recon-structionist. It was for the jury to make credibility determinations regarding each of the witness’s testimony including their expert opinions on what happened in this accident. We find these assignments of error are without merit.

Finding no manifest error in the trial court’s ruling we affirm the judgment. All costs of appeal are assessed against Plaintiffs/Appellants.

AFFIRMED.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kevin McCORD.
    No. 2011-KA-0656.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Kevin McCord, Defendant/Appellant.
    (Court composed of JUDGE MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

h The defendant, Kevin L. McCord, Sr., was charged by bill of information with attempted burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2 and 14:27. Also charged in the bill of information was Michael D. Jackson, who subsequently pled guilty to the charge against him. Mr. McCord was found guilty by a jury of the lesser charge of attempted unauthorized entry of an inhabited dwelling, in violation of La. R.S. 14:62.8 and 14:27, and was originally sentenced to two years and six months at hard labor with credit for time served. The State then charged Mr. McCord as a multiple offender, and he pled guilty to that charge. The trial court vacated the original sentence, and resentenced Mr. McCord to three years and six months at hard labor with credit for time served. Mr. McCord now appeals.

On January 13, 2009, Detective Francis Jarrott of the New Orleans Police Department participated in a burglary investigation at a home located at 5419 South Ro-cheblave Street. Detective Jarrott met with the owner of the house, Andrew La-peyre, who showed him a rear door that looked as though someone had tried to pry it open with a crowbar or a flat-head screwdriver. Mr. Lapeyre told Detective Jarrott that he was unable to determine whether or not any items had | ?been taken from the house. Photographs taken at the crime scene by the NOPD crime lab were introduced into evidence. Included in these photographs were ones showing damage to the rear door of the house. Detective Jarrott testified that he learned that Mr. McCord and Mr. Jackson had been arrested for the attempted burglary, and that neither man had been given permission by the home’s owner to enter the home.

The next witness was Andrew Lapeyre, the owner of the home located at 5419 South Rocheblave Street. On January 13, 2009, Mr. Lapeyre went to his home in the middle of the day after learning that NOPD officers were in the neighborhood conducting a burglary investigation. No one in his family was at home at that time. Only the family dog was inside the home in the middle of the day. When Mr. Lapeyre arrived home, he noticed that one of the exterior doors was damaged and looked as though someone had tried to pry it open. Mr. Lapeyre testified that he did not know Mr. McCord or Mr. Jackson, and had not given either man permission to enter his home. When he left his home on the morning of January 13, 2009, there was no damage to the door that had been pried open when he returned home in the middle of the day. Mr. Lapeyre stated that there were no items taken from his home.

Detective Daniel Carter testified that he was doing surveillance in an unmarked vehicle on January 13, 2009, looking for suspicious persons in an area that had been plagued by burglaries. Another unit participating in the surveillance of this neighborhood alerted other officers by radio of a blue Suzuki vehicle circling blocks in the area, and slowing down in front of several residences. The radioed call noted that one of the men in the Suzuki exited the vehicle at several locations. Detective Carter and officers in a couple of other unmarked vehicles |skept the blue Suzuki under surveillance for over an hour. He noted that there were two men in the vehicle. When the vehicle arrived in the 5400 block of South Rocheblave Street, the passenger exited the vehicle and walked down an alleyway to an area behind the house at 5419 South Rocheblave Street, nervously glancing over his shoulder while he did so. At that time, the driver of the blue Suzuki drove off and turned onto Octavia Street to a location that Detective Carter could not see. Detective Carter saw the man who went into the alleyway reemerge several minutes later, carrying the sweatshirt he had been wearing when he walked into the alleyway. The sweatshirt appeared to be bundled around something. The man carrying the sweatshirt walked onto Octavia Street, where the blue Suzuki was now parked. He entered the vehicle on the passenger side, and the two men drove off.

Believing the passenger of the blue Suzuki had just trespassed on the property or committed a burglary, Detective Carter followed the vehicle and called for marked units to perform a traffic stop on the vehicle. The vehicle was stopped several blocks away, and when Detective Carter arrived at the scene, the two subjects had been placed under arrest. He identified Mr. McCord as the driver of the vehicle, and Mr. Jackson as the passenger. He said Mr. Jackson was not carrying anything in his hands when he exited the vehicle on South Rocheblave Street.

Detective Guy Swalm participated in the burglary investigation of January 13, 2009. His role was as a “take-down unit,” which he explained is a unit that actually makes contact with the individual or individuals being investigated. He testified that he received a radioed description from the surveillance units of the vehicle and of the subjects in the vehicle. He initiated a stop of the vehicle after being informed that the passenger had been observed by Detective Carter going |4into a side alleyway of a residence, coming out minutes later with an unknown object wrapped in a sweatshirt, walking to the vehicle that was now parked around the block and leaving the area quickly. Detective Swalm testified that a decision was made to stop the vehicle on the belief that the occupants of the vehicle had been involved in a burglary of a residence. He identified Mr. McCord as the driver of the vehicle, and Mr. Jackson as the passenger. On the floorboard of the vehicle, Detective Swalm observed a sweatshirt matching the one described by Detective Carter, a knit cap, a couple of pairs of gloves and “two hand-held, like walkie-talkie radios.” Other items in the vehicle included a screwdriver wrapped up in the sweatshirt, reflective vests, jewelry, silverware, portable memory devices used with computers, razor blades and a pocket knife. After confiscating the items in the vehicle, Mr. McCord and Mr. Jackson were placed under arrest. Photographs of the items taken from the vehicle were introduced into evidence at trial.

Detective Heather Gore testified that she participated in the burglary investigation on January 13, 2009. She had conducted surveillance in the area that day and noted the blue Suzuki with two men inside, but did not see either of the men exit the vehicle. However, she said the vehicle “passed me a few times and slowed down and looked down alleys,” which suggested to her that the occupants of the vehicle were “casing the area.” The officers involved in the surveillance radioed their observations of the vehicle to each other. Detective Gore did not participate in the stop of the vehicle. After learning that two burglary suspects had been arrested and brought to the 2nd District police station, Detective Gore went there, where she and Detective Launey Beckham interviewed Mr. McCord and Mr. Jackson after they were advised of their rights.

[sAt the interview, Mr. McCord stated that on the day in question, he took Mr. Jackson to his ex-girlfriend’s house so Mr. Jackson could retrieve his belongings. He stated that he had only known Mr. Jackson for a few months. Mr. McCord told the officers that while he waited for Mr. Jackson, he rode around the neighborhood looking at houses because he does construction work. Mr. Jackson, on the other hand, told the detectives that he had only met Mr. McCord that morning at a Burger King restaurant, and Mr. McCord had asked him if he wanted to break into some houses. He said he got into Mr. McCord’s vehicle and they drove to South Roche-blave Street. According to Mr. Jackson, Mr. McCord selected the house located at 5419 South Roeheblave. The two men agreed that Mr. Jackson would break into the house and they would share whatever Mr. Jackson retrieved from the house. Mr. Jackson told the detectives that he attempted to gain entry into the house, but was unable to do so. He said the two men communicated with each other through walkie-talkie devices.

At trial, Michael Jackson testified that on January 18, 2009, he met Mr. McCord at a Burger King restaurant. Mr. McCord told him that he was a contractor, and Mr. Jackson told him he was looking for work. Mr. Jackson told Mr. McCord that he had been involved in some criminal activities in the past. He claims he left with Mr. McCord in his vehicle without knowing where they were going, but understood that the plan was to burglarize a home. Before he exited the vehicle on South Ro-cheblave Street, Mr. Jackson said the two men talked about splitting any money they made together. He exited the vehicle with a screwdriver in his jacket pocket, and jumped two fences to get to the back of the house. He Rknew Mr. McCord was not going to break into the house with him; rather, Mr. McCord would stay in the vehicle and park nearby. He said when he dropped the screwdriver in the back yard, he became nervous and left the property. Mr. Jackson entered McCord’s vehicle and told him he was unable to break into the house. Shortly thereafter, the two men were stopped by the police.

Mr. Jackson admitted that he had prior convictions for burglaries and possession of stolen property. He also pled guilty in this case to a charge of attempted burglary of an inhabited dwelling.

Detective Launey Beckham testified that he and Detective Gore conducted the taped interview of Mr. Jackson on January 13, 2009 after Mr. Jackson was advised of his rights. Through that interview, Detective Beckham learned that Mr. McCord was the driver of the vehicle in which Mr. Jackson was a passenger on January 13, 2009. Mr. Jackson told the detectives that he met Mr. McCord that same morning for the first time at a Burger King restaurant. Mr. McCord offered him money to commit a burglary. Mr. McCord dropped Mr. Jackson off at 5419 South Roeheblave Street to burglarize the residence, and the two men had an agreement that they would split any property taken from the location. Mr. Jackson told the detectives that he went to the back of the residence with a screwdriver, but was unable to gain entry.

The defense offered the testimony of Pamela McCord, the wife of the defendant. She stated that her husband is a contractor. She also stated that her husband uses walkie-talkie radios in his work as a contractor. She identified jewelry found in her husband’s truck as belonging to her or her husband. On the day of her husband’s arrest, he conveyed to her that Mr. Jackson was going to do some work for him, and he gave Mr. Jackson a ride to the house on South |7Rocheblave Street so he could retrieve some tools he said he needed for the job. According to Mrs. McCord, her husband had no knowledge of Mr. Jackson’s plans to commit a burglary on that day. Mrs. McCord admitted that she was not with her husband in the middle of the day on January 13, 2009.

Joseph Johnson testified that he did painting and contracting work, and was supposed to work for Mr. McCord on January 13, 2009, but could not because of an illness. Mr. Johnson suggested that Mr. McCord hire Mr. Jackson for the job that day. Mr. Jackson was an acquaintance of Mr. Johnson’s brother. He said Mr. McCord did not know Mr. Jackson prior to January 13, 2009. Mr. Johnson admitted having a conviction for possession of stolen property.

Dent Hunter testified that he is a licensed contractor. He said that Mr. McCord had worked for him in that past, and was supposed to do a job for him on January 13, 2009, but he never showed up. Mr. McCord was supposed to meet him at the job location in New Orleans East between 10:00 a.m. and 12:00 p.m.

A review of the record reveals no errors patent.

In his sole assignment of error, Mr. McCord argues that the evidence presented at trial was insufficient to convict him of attempted unauthorized entry of an inhabited dwelling. Specifically, he argues that the State failed to prove that he was a principal to the attempted unauthorized entry of the house at 5419 South Roche-blave Street, and failed to prove that he had the specific intent to enter the house. According to Mr. McCord’s brief, he was unaware of Mr. Jackson’s plan to commit a burglary, but instead thought that he was merely giving Mr. Jackson a ride to a residence to pick up some tools he had left behind.

|In State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Louisiana Supreme Court set forth the standard of review for a claim of insufficiency of evidence, as follows:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

La. R.S. 14:62.3 defines “unauthorized entry of an inhabited dwelling” as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” Thus, the elements of the crime of unauthorized entry of an inhabited dwelling are (1) that the accused entered a dwelling; (2) that the dwelling did not belong to the accused; (3) that the dwelling was used in whole or in part as a home or place of abode; and (4) that the entry was not authorized. La. R.S. 14:62.8; State v. Nunnery, 04-1560, pp. 9-10 (La.App. 4 Cir. 12/8/04), 891 So.2d 67, 72. La. R.S. 14:27, which defines “attempt,” states that “[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

Because the State did not present evidence that Mr. McCord personally attempted to enter the dwelling at 5419 South Rocheblave Street on January 13, 192009, it had the burden of proving that he was a principal to the unauthorized entry attempted by Mr. Jackson. State v. Arceneaux, 05-338, p. 7 (La.App. 5 Cir. 12/27/05), 930 So.2d 44, 49. La. R.S. 14:24 defines “principals” as “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.” Accordingly, the jury in this case had to find beyond a reasonable doubt that Mr. Jackson attempted to make an unauthorized entry into the home located at 5419 South Ro-cheblave Street, and that Mr. McCord was someone concerned in the commission of that crime. State v. Arceneaux, supra at p. 8, 930 So.2d at 49.

Evidence presented at trial was sufficient to establish that Mr. Jackson attempted to enter the dwelling at 5419 South Rocheblave Street by trying to pry open the back door with a screwdriver. The testimony of Mr. Lapeyre sufficiently established that he is the owner of the dwelling located at 5419 South Rocheblave Street, that the dwelling is used as his family’s home, and that neither Mr. Jackson nor Mr. McCord were ever authorized to enter the home. Therefore, the elements of the crime of attempted unauthorized entry of an inhabited dwelling were proven in this case.

As for Mr. McCord’s main argument, that the evidence was insufficient to prove that he was a principal to the attempted unauthorized entry of an inhabited dwelling, we find no merit. The State did not need to prove that Mr. McCord personally intended to enter the house; it only had to prove that he was someone “concerned with the commission of the crime” in order for him to be found guilty as a principal to the attempted unauthorized entry. See State v. Arceneaux, 05-338 (La.App. 5 Cir. 12/27/05), 930 So.2d 44.

|10Mr. Jackson’s statement to the police and trial testimony, considered together, were sufficient to establish Mr. McCord’s participation as a planner of a burglary to be committed by Mr. Jackson, and as the driver of the getaway vehicle. Further evidence of Mr. McCord’s role as a principal in this case was presented through the testimony of Detectives Carter and Gore, which established that the vehicle driven by Mr. McCord slowed down several times while the occupants looked down alleys, and that Mr. McCord dropped Mr. Jackson off in front of the house at 5419 South Rocheblave Street before relocating around the block to wait for him before driving off. Viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient to convince a rational juror that Mr. McCord was a principal to the crime of attempted unauthorized entry of an inhabited dwelling.

For the reasons stated above, we affirm the conviction and sentence of the defendant, Kevin L. McCord, Sr.

AFFIRMED

      . His trial testimony conflicted in some respects with his earlier taped statement to police, in that he denied at trial that he and Mr. McCord had specifically discussed a burglary plan or had used walkie-talkies to communicate when Mr. Jackson was at the South Roeheblave property.


author: JAMES F. McKAY III, Judge.

text:
    Wesley C. JOHNSON v. Richard BELL, CTJ Services, Incorporated and Crum & Forester Insurance Company.
    No. 2011-CA-1348.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2012.

      James P. Johnson, New Orleans, LA, Karla Marie Baker, Metairie, LA, for Plaintiff/Appellant.
    Sidney J. Angelle, Brant J. Cacamo, Lobman Carnahan Batt Angelle & Nader, New Orleans, LA, for Defendant/Appellee, United States Fire Insurance Company.
    (Court composed of Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

L The appellant, Wesley Johnson, appeals the trial court’s judgment dismissing his claims against all parties with prejudice. For the following reasons, we reverse.

STATEMENT OF FACTS/PROCEDURAL HISTORY

On March 20, 2006, Mr. Johnson filed a petition for damages. The petition alleged that Richard Bell disregarded a red light and struck Mr. Johnson’s vehicle, causing physical injuries and property damage.

On October 12, 2007, the defendants propounded discovery through counsel of record to Mr. Johnson. After receiving no response or objection to the discovery, the defendants filed a motion to compel discovery on February 8, 2008. The court held a hearing on March 28, 2008. Neither Mr. Johnson nor his counsel appeared at the hearing. The court issued a judgment granting the motion to compel and giving Mr. Johnson fifteen days to comply with the outstanding discovery requests. The judgment stated that in the event that Mr. Johnson failed to respond to the outstanding discovery requests within fifteen days, the matter would be dismissed.

|2On May 21, 2008, the defendants filed a motion to dismiss for failure to participate and comply with discovery. On July 17, 2008, the court issued a judgment granting the defendants’ motion to dismiss for failure to participate and comply with discovery, dismissing all of Mr. Johnson’s claims with prejudice.

In response to the judgment of dismissal, counsel for Mr. Johnson filed a motion for a new trial. On October 28, 2008, the court issued a judgment granting the motion for new trial, but ordered that Mr. Johnson to provide written discovery responses to the interrogatories and request for production of documents propounded by the defendants. The court also ordered Mr. Johnson to attend a deposition and an independent medical examination. The court ordered that in the event Mr. Johnson failed to comply, Mr. Johnson’s case would be dismissed with prejudice at Mr. Johnson’s cost.

Thereafter, on March 23, 2010, the defendants filed a motion to compel supplementation of discovery. Therein, the defendants stated that they propounded a request for a supplementation to interrogatories and request for production of documents and that they had not received a response. Neither Mr. Johnson nor his counsel was present at the hearing. On May 13, 2010, the court granted the motion to compel supplementation of discovery, providing Mr. Johnson with ten days to comply with the request for supplementation. The court further stated that Mr. Johnson would be subject to sanctions for failure to comply with the request for supplementation.

On September 17, 2010, the defendants filed another motion to dismiss and/or motion to compel discovery. The defendants alleged that Mr. Johnson failed to comply with the court’s May 13, 2010 judgment by filing responses late and by filing responses that were still incomplete. Further, defendants alleged that |san additional request for admissions and interrogatories were propounded on counsel for Mr. Johnson on August 2, 2010, and that the response was deficient. Counsel for Mr. Johnson objected to the motion to dismiss, noting that an objection was lodged to certain information sought by the defendants. On November 30, 2010, the court issued a judgment ordering Mr. Johnson to provide supplemental discovery responses within fifteen days.

On January 7, 2011, defendants again filed a motion to dismiss, alleging that Mr. Johnson failed to provide complete responses to the request for admissions and interrogatories as ordered by the court on November 30, 2010.

Counsel for Mr. Johnson filed a motion to withdraw as counsel of record. The trial court denied counsel for Mr. Johnson’s motion to withdraw as moot. The court noted that it orally granted the motion to dismiss filed by the defendants. The court issued a judgment on February 10, 2011, dismissing Mr. Johnson’s claims with prejudice.

Counsel for Mr. Johnson filed a motion for rehearing and/or a motion for new trial, which the trial court denied. Counsel for Mr. Johnson timely filed the instant motion for appeal.

STANDARD OF REVIEW

Trial courts are granted wide discretion in determining appropriate sanctions for a party’s failure to comply with discovery orders. At Your Service Enterprises, Inc. v. Swope, 2007-1620, p. 4 (La.App. 4 Cir. 1/14/09), 4 So.3d 138, 141, citing Magri v. Westinghouse Elec., Inc., 590 So.2d 830, 831 (La.App. 4 Cir.1991). Appellate courts will not reverse a trial court’s decision in that regard absent a clear showing of an abuse of discretion. Id.

|4The law permits the imposition of sanctions for a party’s failure to comply with a court order compelling discovery. See La. C.C.P. art. 1471. Moreover, there is a distinction between the sanctions available for the failure to comply with discovery and those available for disobedience of court-ordered discovery. Swope, p. 7, 4 So.3d at 143 (quoting Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317, p. 4 (La.App. 4 Cir. 7/6/05), 913 So.2d 131, 134).

La. C.C.P. art. 1471(A) provides, in pertinent part:

If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying, further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

DISCUSSION

Mr. Johnson alleges that the trial court’s judgment is wrong and must be reversed. In support of his argument, Mr. Johnson cites Creppel v. Tidewater Marine Service, Inc., 94-0984 (La.App. 4 Cir.10/13/94), 644 So.2d 1071. Therein, the judgment of dismissal was reversed as this Court found the plaintiff’s failure to comply was of minimal prejudice to the defendants’ trial preparation and there were other remedies available to the trial court. Id., p. 6, 644 So.2d at 1075. Further, this Court noted that “[dismissal with prejudice is the most severe ^sanction and should be imposed only in extreme circumstances where the plaintiff is clearly aware that noncompliance will result in dismissal.” Id., p. 5, 644 So.2d at 1074 (Internal citations omitted.).

The defendants argue that the trial court provided numerous warnings to Mr. Johnson if Mr. Johnson failed to comply with discovery. The defendants cited Hutchinson v. Westport Insurance Corp., 2004-1592 (La.11/8/04), 886 So.2d 438, in support of their argument that the dismissal was warranted in this case due to Mr. Johnson’s willful failure to comply with numerous court orders compelling discovery.

In Hutchinson, the Supreme Court affirmed the four factors to be considered before the drastic action of dismissal is taken. The factors to be taken into account are:

(1) whether the violation was willful or resulted from inability to comply;
(2) whether less drastic sanctions would be effective;
(3) whether the violations prejudiced the opposing party’s trial preparation; and
(4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

Hutchinson, 2004-1592, p. 3, 886 So.2d at 440, citing Horton v. McCarty, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203.

In Hutchinson, the defendants served interrogatories and requests for production of documents upon the plaintiffs. Ms. Hutchinson represented herself and her minor son. Hutchinson, 2004-1592, p. 1, 886 So.2d at 439. Believing the answers insufficient, the defendant filed a motion to compel discovery. The court granted the motion and provided time for Ms. Hutchinson to respond. When Ms. |fiHutchinson failed to comply with the court order, the defendant filed a motion to dismiss. The trial court granted the motion to dismiss. Id., p. 2, 886 So.2d at 440. The appellate court reversed and remanded the matter to the trial court, stating that Ms. Hutchinson should be warned that her case would be dismissed if the court order was not timely obeyed. The Supreme Court granted a writ of certiorari and reversed the appellate court. The Supreme Court noted that Ms. Hutchinson was provided with an opportunity to testify prior to the dismissal. Further, the Court noted that much of the discovery was easily answered by a lay person and that Ms. Hutchinson exhibited a complete failure of a good faith effort to cooperate. The court found Ms. Hutchinson’s willful disobedience and fault sufficient to justify dismissal. Id., p. 3, 886 So.2d 440-441.

This Court recently addressed the dismissal of claims for failure to comply with court ordered discovery. In Cantuba, the plaintiffs, who filed suit in 1994, were the relatives and personal representatives of Filipino and Greek seamen who were aboard a vessel that disappeared while in international waters who filed suit in 1994. Cantuba v. American Bureau of Shipping, 2008-0497, p. 1 (La.App. 4 Cir. 6/3/09), 31 So.3d 397, 410 (on rehearing). The plaintiffs representing the Filipino seamen (Filipino plaintiffs) were ordered on February 2, 2000, to appear for depositions in New Orleans in July of 2003. The Filipino plaintiffs were unable to secure visas due to the more stringent restrictions on travel following September 11, 2001. Counsel for the Filipino plaintiffs suggested taking the depositions by video teleconferencing, but this option was rejected by counsel for the defendants. Instead, the defendants filed a motion to dismiss the Filipino plaintiffs. However, on February 4, 2005, the trial court ordered the Filipino 17plaintiffs to reapply for visas to travel to the United States. Id., p. 4, 31 So.3d at 411.

Thereafter, the defendants filed supplemental interrogatories to determine whether the applications for visas had been re-filed. The answer contained information from the first application, but there was no indication that applications for visas had been re-filed. The defendants filed a second motion to dismiss the Filipino plaintiffs’ claims in June of 2007, which the trial court granted. Id., p. 5, 31 So.3d at 411.

Counsel for the Filipino plaintiffs filed a motion for new trial, arguing that counsel’s dislocation due to Hurricane Katrina and damages suffered as a result of Typhoon Durian in the Philippines made communication with the Filipino plaintiffs difficult. Counsel indicated that the applications for visas had been re-filed on July 14, 2007. Id., p. 5-6, 31 So.3d at 412.

This Court initially affirmed the trial court’s dismissal of the claims of the Filipino plaintiffs. However, on rehearing, the court examined the four factors annunciat-ed in Horton, where were reaffirmed in Hutchinson, and determined that the trial court abused its discretion. Id., p. 8, 31 So.3d at 413.

In determining that the trial court abused its discretion, this Court noted that the record was void of any evidence that the Filipino claimants willfully or in bad faith ignored the court’s orders, but rather that forces beyond their control created obstacles in the obtaining of the visas. Additionally, this Court noted that there was no evidence that the Filipino plaintiffs were aware that dismissal could result from the failure to comply with the court-ordered discovery. Further, this Court determined that the defendant’s trial preparation was not prejudiced as it had the opportunity to depose the Filipino plaintiffs via video teleconferencing. Id. This | sCourt detailed the other sanctions available to the trial court under La. C.C.P. art. 1473. This Court noted that sanctions were warranted against counsel for the Filipino plaintiffs as a result of the counsel’s noncompliance. Id., p. 9, 31 So.3d at 414. This Court reversed the portion of the trial court’s judgment dismissing the claims of the Filipino plaintiffs, but remanded the matter to the trial court for the imposition of sanctions against the counsel for the Filipino plaintiffs pursuant to La. C.C.P. art. 1473. Id., p. 10, 31 So.3d at 415.

Similarly, in this case, there is no evidence that Mr. Johnson himself knew of any of the court orders compelling discovery. Unlike Ms. Hutchinson, Mr. Johnson never appeared in court for any of the motions to compel and/or motions to dismiss for failure to respond to the court-ordered discovery. A party who lacks knowledge of a court order cannot willfully disobey such an order.

And similar to the Cantuba case, there is no evidence that any other sanction was considered and/or imposed. While the trial court ordered expenses to be paid in the various judgments compelling discovery, there is no evidence that the court considered whether the imposition of less drastic sanctions, such as sanctions against counsel pursuant to La. C.C.P. art. 1473, would be effective. Additionally, other sanctions are available. For instance, the court can order that the request for admissions be deemed admitted. La. C.C.P. art. 1467. Likewise, the court can issue an order refusing to allow the disobedient party the opportunity to support designated claims. La. C.C.P. art. 1471.

Additionally, defendants never alleged that they were prejudiced in their trial preparation by the failure to comply with the court-ordered discovery.

| qFurther, there is no evidence in the record that Mr. Johnson participated in the violation of the court’s orders compelling discovery as there is no evidence that Mr. Johnson knew of the court orders compelling discovery.

After considering the record before us, we find that the trial court abused its discretion by dismissing Mr. Johnson’s claims against the defendants. However, we must note that although we consider the dismissal with prejudice to be a draconian sanction measure, it is clear from the record before this Court that the trial court has shown great forbearance. As such, we urge the trial court to consider alternative sanctions to the limit of the law. To insure that the plaintiff is aware of all court proceedings, a practical way around this conundrum is for the party seeking compliance with a discovery order to obtain an order of the court, directing that service of the order requiring discovery be served upon the party from whom the discovery is sought. See Raspanti v. Litchfield, 2005-1512, 2006-0331, p. 1 (La.App. 4 Cir. 11/21/06), 946 So.2d 234, 245.

CONCLUSION

Based upon the above and foregoing, the judgment of the trial court granting the motion to dismiss is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Karen HALL.
    No. 2011-KA-0931.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    John Clayton Butler, Craig J. Mordock, Butler Mordock P.L.C., New Orleans, LA, for Defendant/Appellee, Karen Hall.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

hOn 9 November 2010, the defendant, Karen Hall, was charged by bill of information with one count of possession of a firearm while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95 E, and one count of possession with the intent to distribute cocaine, a violation of La. R.S. 40:967 B(l). The defendant pled not guilty to both counts at her arraignment on 1 December 2010. On 16 March 2011, Ms. Hall filed a motion to quash based upon double jeopardy. After a hearing on 31 May 2011, the trial court granted the motion to quash and dismissed the charge of possession of a firearm while in possession of a controlled dangerous substance. This timely appeal by the state followed.

No testimony was taken at the hearing on the motion to quash. But from the record and oral argument before the trial court, it appears that Ms. Hall was one of four people arrested during the execution of a search warrant at a residence on Chef Menteur Highway in New Orleans. During the search, cocaine and weapons were found in the residence. Ms. Hall was one of four people found in the house and charged with possession of the weapons and narcotics. Oral argument at the hearing indicated that a controlled buy occurred prior to the search of the residence.

lain its sole assignment of error, the state contends that the trial court erred when it granted the defendant’s motion to quash. It argues that the prosecution of both counts does not expose the defendant to double jeopardy. Both the defendant and the state agree that the prosecution for two felonies per se does not constitute double jeopardy under the Blockburger test. However, Ms. Hall maintains that the state’s “same evidence” test is broader, and under the “same evidence” test, prosecution for both offenses constitutes double jeopardy.

In Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 28 L.Ed.2d 707 (1969), the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. Both the Louisiana and United States Constitutions prohibit placing a person twice in jeopardy of life or limb for the same offense. United States Const., Amend. 5; La. Const, art. I, § 15.

La.C.Cr.P. art. 596 states:

Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Separate statutory crimes need not be identical in constituent elements or in actual proof to be the same within the meaning of the constitutional prohibition. Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Doughty, 379 So.2d 1088 (La.1980). The test enunciated by the United States Supreme Court for determining whether two offenses are the same for double jeopardy purposes is whether each statute requires proof of an additional element which the other does not. Blockburger, supra, n. 1.

Courts have held that while the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the clause does not prohibit the state from prosecuting a defendant for both a greater or lesser included offense in a single prosecution, even though the court may not enter separate convictions or impose cumulative punishments for both offenses unless the legislature has authorized such punishment. Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); State v. Addison, 94-1423 (La.App. 4 Cir. 11/13/96), 684 So.2d 477, 480 (holding that double jeopardy applies when one is tried twice for the same offense, not when two offenses are tried together).

Louisiana has adopted the “same evidence” test, which provides broader protection against double jeopardy. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); see also State v. Didier, 262 La. 364, 263 So.2d 322 (1972). If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. See Doughty, 379 So.2d at 1091. The “same evidence test” is somewhat broader in concept than Blockburger, the central theme being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, 387 So.2d 1175, 1177 (La.1980).

|4In State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, the defendant was charged with possession of marijuana and cocaine and possession of a weapon while in possession of controlled dangerous substance. He pled guilty to possession of marijuana and subsequently filed a motion to quash the weapon charge. The Court determined that the evidence of the defendant’s alleged possession of cocaine, for which he had not been convicted, provided a proper basis to support his prosecution under the weapon charge. The evidence of the defendant’s possession of marijuana was not required in order to convict him of the weapon offense, because other evidence existed sufficient to support the charge.

In the present case, no testimony has been taken concerning the evidence upon which the state relies to support its argument that the two offenses do not constitute double jeopardy. The argument made by the state indicates that several bags of cocaine were found in the residence, and some of the cocaine was intended to provide evidence for the possession with intent to distribute charge, while the rest of the cocaine was meant to provide evidence in support of the offense of possession of a firearm while in possession of a controlled dangerous substance charge. The state also suggests that the cocaine found on the defendant after the controlled buy was meant to be used for the possession with intent to distribute cocaine charge.

The evidence in the record on appeal (none to be precise) is insufficient to determine whether Ms. Hall would be placed in double jeopardy if the state proceeded to prosecution of both offenses. An eviden-tiary hearing is required to determine whether the evidence the state intends to produce is sufficient to preclude any double jeopardy issues.

| ^Accordingly, we reverse the trial court’s ruling and remand the matter for an evidentiary hearing on the motion to quash.

REVERSED; REMANDED.

      . Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Alfred JONES.
    No. 2011-KA-0409.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for the State.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Alfred Jones.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

hln this criminal case, the defendant, Alfred Jones, appeals his conviction on two counts of first degree murder, in violation of La. R.S. 14:30, and the life sentence imposed on him on each count. His sole assignment of error is that the trial court erred in allowing the State to introduce other crimes evidence. Finding no error, we affirm.

STATEMENT OF THE CASE

In April 2007, Mr. Jones was indicted for the first degree murders of sixteen year old Damon Brooks and seventeen year old Ivan Brooks (the “Brooks Brothers”). At his arraignment, Mr. Jones pled not guilty. The trial court denied Mr. Jones’ motion to suppress identification. Following a Prieur hearing, the trial court granted the State’s motion to introduce other crimes evidence — evidence that the gun used to kill the Brooks Brothers in February 2007 was the same gun used to kill Clifford Campbell in January 2007. After a twelve-day jury trial, Mr. Jones was found guilty as charged on both counts. Adopting the jury’s recommendation, the trial court sentenced Mr. Jones on both counts to life imprisonment at hard Rlabor without benefit of probation, parole, or suspension of sentence and ordered the sentences to run concurrently. This appeal followed.

STATEMENT OF THE FACTS

It is undisputed that on February 15, 2007, Mr. Jones shot and killed the Brooks Brothers. The issue at trial was whether he did so in self-defense. The crime scene was a vehicle driven by Darryl Kiefer; the Brooks Brothers were passengers in the vehicle. The vehicle was parked in the 1000 block of Kentucky Street in New Orleans. Immediately before the shootings, Mr. Kiefer gave Mr. Jones a ride to his girlfriend’s house. After he exited the vehicle, Mr. Jones shot all three occupants. The Brooks Brothers both died at the scene; Mr. Kiefer survived.

All three occupants of the vehicle — Mr. Kiefer and the Brooks Brothers — had Young Fellows tattoos. Mr. Campbell, who was murdered in January 2007, likewise had a Young Fellows tattoo. The gun used to shoot the occupants of the vehicle was the same gun that was used to shoot Mr. Campbell. The trial court, as noted, granted the State’s Prieur motion to introduce evidence of Mr. Campbell’s murder at trial in this case.

At trial, the State called the following ten witnesses: 1) Darryl Kiefer, 2) Giselle Roussell, 3) Benja Johnson, 4) Tarez Cook, 5) Ed Delery, 6) Regina Williams, 7) Lucinda Barnes, 8) Harold Wischan, 9) Kenneth Leery, and 10) Dr. Paul McGarry.

LD Darryl Kiefer

Darryl Kiefer was the driver of the vehicle and the surviving victim. He grew up with the two deceased victims, the Brooks Brothers, in the Treme area of New Orleans. After graduating from J.F. Kennedy High School (“Kennedy”) in 2005, he went to Belen College in Texas on a basketball scholarship. He only attended college there for one year.' In August 2006, he returned to New Orleans and attended SUNO. In November or December 2006, he dropped out of school. In the fall of 2006, he worked for Maximum Staffing Temporary Service and began selling marijuana.

Mr. Kiefer stored the money he earned and the money Louis Daniels — a drug dealer — earned at his house. He was friends with Mr. Daniels and knew him from junior high school. He also played basketball with him. Mr. Kiefer met the defendant, Mr. Jones, through Mr. Daniels. Mr. Kiefer was neither a friend of Mr. Jones, nor in business with him.

In December 2006, the money Mr. Kiefer stored at his house — his and Mr. Daniels’ money — was stolen. On the day it occurred, the Brooks Brothers, Hillary Campbell, and “Pookie” (a friend) met Mr. Kiefer at his house before going to play basketball. The Brooks Brothers and “Pookie” accompanied Mr. Kiefer to play basketball, but Mr. Campbell took the bus home instead. When Mr. Kiefer returned home from playing basketball, he discovered that the money was missing. He called Mr. Daniels and asked him if he had taken the money. Mr. Daniels denied doing so and came to Mr. Kiefer’s house. Mr. Daniels questioned Mr. |4 Kiefer regarding what had occurred. According to Mr. Kiefer, Mr. Daniels told him “Don’t worry about it, it’s going to come up”; and Mr. Daniels never discussed the incident with him again.

On the day of the shootings (February 15, 2007), Mr. Kiefer began his day in Thibodaux; and he went with his dad to therapy. After therapy, his dad dropped him off at the Brooks Brothers’ house because his car was parked near then-house. Later that day, Mr. Kiefer and the Brooks Brothers drove to “Tattoo Man’s” house in the Ninth Ward. After leaving “Tattoo Man’s” house, the trio drove through the Ninth Ward to say hello to Mr. Daniels. The people who were hanging out there told them that Mr. Daniels was not there. Mr. Jones was there, and he asked Mr. Kiefer for a ride to his girlfriend’s house, which was located about five minutes away. Mr. Jones got into the back passenger seat of Mr. Kiefer’s vehicle and gave Mr. Kiefer directions to his girlfriend’s house. Ivan Brooks was in the front passenger seat; Damon Brooks was in the back seat behind the driver, Mr. Kiefer.

When they arrived at Mr. Jones’ girlfriend’s house, Mr. Jones exited the vehicle and stated: “Be cool.” Mr. Jones then pulled out a gun and shot at Mr. Kiefer and the Brooks Brothers. Mr. Jones shot Damon Brooks first. Mr. Kiefer was shot ten times; he was shot in the arm, leg, hands, and chest. After Mr. Jones fled, Mr. Kiefer called 911. Mr. Kiefer saw a woman coming out of a house and called out to her for help. When she failed to respond, he drove the vehicle forward to the front of the woman’s house. The woman ran inside stating that she was going to call the police. Shortly thereafter, the police arrived.

|sMr. Kiefer acknowledged that in 2009 he pled guilty to possession with intent to distribute marijuana and was sentenced to five years of probation. When he was arrested for the marijuana violation, there was a gun in the car in which he was riding. He also acknowledged that in July 2010 he was arrested for possession of ecstasy; he testified that there had been no discussions with the State about this open charge. Mr. Kiefer denied having a gun in his car on the date of the shootings (February 15, 2007).

Mr. Kiefer also denied murdering Mr. Campbell or having anything to do with Mr. Campbell’s murder. Indeed, he testified that he found out about Mr. Campbell’s murder (which occurred in January 2007) by reading about it in the newspaper. He also found out from the newspaper that Mr. Campbell had a Young Fellows tattoo. Mr. Kiefer testified that Young Fellows was a basketball team, not a gang. (As noted elsewhere, Mr. Kiefer, the Brooks Brothers, and Mr. Campbell all had Young Fellows tattoos.) Mr. Kiefer testified that the Brooks Brothers were not hustlers; they were not involved in anything illegal. On the other hand, Mr. Kiefer acknowledged that Mr. Daniels was a hustler and a drug dealer.

2) Giselle Roussell

Giselle Roussell, an assistant police communications supervisor, identified the tape of the 911 call received on the date of the murders.

3) Benja Johnson

Officer Benja Johnson of the New Orleans Police Department (“NOPD”) testified that he was one of the officers who first responded to the call reporting the | fishootings. When he arrived on the scene, Officer Johnson observed a white vehicle parked in the street with the passenger door open. When he approached the vehicle, Officer Johnson observed that all three of its occupants had been shot. Officer Johnson notified EMS and attempted to speak to the driver of the vehicle. The driver indicated that “Alfred” had shot them. The other two occupants, one in the front passenger seat and one in the back seat, had expired on the scene. Officer Johnson cordoned off the scene until the crime lab technicians arrived.

U) Tarez Cook

Tarez Cook, a NOPD crime lab technician, was called to process the crime scene. Ms. Cook photographed the scene, collected the evidence found at the scene, and prepared a crime scene report. Another crime scene technician prepared a sketch of the scene, which Ms. Cook identified. Ms. Cook also identified the photographs taken at the scene. No firearms were found on the victims or at the scene. Spent bullet casings were collected.

5) Ed Delery

Ed Delery, an expert in the field of latent print development and a member of the crime lab, processed the vehicle. Mr. Delery took photographs of the vehicle, searched it for evidence, and processed it for latent prints. Nineteen latent prints were found on the exterior of the vehicle, and two latent prints were found in the interior of the vehicle.

6) Regina Williams

| ./Detective Regina Williams, who participated in the homicide investigation, testified that she was sent to check on the victim, Mr. Kiefer, who was transported to Elmwood Medical Center (“Elmwood”). When Detective Williams arrived at Elm-wood, Mr. Kiefer was being prepared for surgery. She spoke with Mr. Kiefer and the physicians treating him. Mr. Kiefer told her that “Alfred” shot him, that he knew Alfred from the Gallier Street area, and that he did not know Alfred’s last name. Mr. Kiefer also told him that he gave Alfred a ride to his girlfriend’s house, and when Alfred exited the vehicle he shot all three occupants. Mr. Kiefer described Alfred as dark-skinned, slender, tall, and having dread locks. Detective Williams recovered a spent bullet that fell out of Mr. Kiefer’s clothes during preparation for surgery. Detective Williams relayed all the information she obtained to Detective Lucinda Barnes.

7) Lucinda Barnes

Detective Lucinda Barnes testified that she was the chief homicide investigator in ⅛⅛ case. When she arrived on the scene, she learned that two victims were fatally shot and another victim was shot and transported to Elmwood. Detective Barnes spoke with the first responding officers; they advised her that the homicides occurred in the white vehicle that was on the scene. Detective Barnes observed spent casings near the residence at 1003 Kentucky Street; the vehicle came to rest at 1035 Kentucky Street. ■

The day after the shootings Detective Barnes met with the surviving victim, Mr. Kiefer, at Elmwood. Mr. Kiefer told Detective Barnes that “Alfred” shot him. | ^Detective Barnes then put together a photographic lineup and showed it to Mr. Kiefer. Mr. Kiefer identified Mr. Jones as the person who shot him and the Brooks Brothers. Mr. Kiefer also gave a statement to Detective Barnes about the shooting. Detective Barnes then obtained a warrant to arrest Mr. Jones for the first degree murders of the Brooks Brothers.

Detective Barnes also investigated Mr. Kiefer’s background. She discovered that Mr. Kiefer was a member of the Young Fellows. (As noted, Mr. Kiefer claimed Young Fellows was a basketball group, not a gang.) At that time (February 2007), Mr. Kiefer had no criminal record. Nor did either of the Brooks Brothers have a criminal record. No weapons were found on the victims or in the vehicle.

8) Harold Wischan

On January 3, 2007, NOPD Detective Harold Wischan was notified by Louisiana National Guardsmen, who were patrolling in the area of Press Drive, that they found the body of young man in a grassy area near some abandoned houses. (This area was devastated in August 2005 by Hurricane Katrina.) The victim was identified as Mr. Campbell. Eleven spent nine millimeter shell casings were found near the body. The victim had two five dollar bills and a plastic bag containing crack cocaine. The victim also had tattoos (one on each arm) identifying him as a member of the Young Fellows. Subsequently, Detective Wischan was contacted by Detective Barnes, who indicated that the spent eas-ings |flfound at his crime scene might match the spent casings found at the scene of the Brooks Brothers’ murders.

9) Kenneth Leary

Kenneth Leary, an expert in- firearms examination, testified that he examined the casings and bullets from both the Brooks Brothers’ murders and Mr. Campbell’s murder and determined that the casings and bullets were fired from the same weapon.

10) Dr. Paul McGarry

Dr. Paul McGarry, a forensic pathologist, performed the autopsies on Mr. Campbell and the Brooks Brothers. Briefly, his findings as to each autopsy were as follows:

• Hillary Campbell: Mr. Campbell suffered eight gunshot wounds; six were in the back of the head, one went through the right shoulder, and one went into the right hip. Dr. McGarry recovered bullet fragments from the head and a whole bullet from the right hip.
• Ivan Brooks: Ivan Brooks suffered three gunshot wounds. One gunshot wound was to the top of the head; the bullet went downward and backward to the base of the brain. Another gunshot wound was to the back of the head about level to the victim’s ear; the bullet went into the head, hit the skull and went downward into the neck. The third gunshot wound was to the right upper back. The bullet went into the spine, damaging the spinal cord. Dr. McGarry found all three bullets in the victim’s body. Dr. McGarry opined that the brain injury was the fatal shot and that death would have occurred within minutes. Dr. McGarry further opined that the bullet wounds indicated that the victim was shot at close range. The wounds on the head and neck had stippling around them. He concluded that Ivan Brooks’ death was a homicide.
• Damon Brooks: Damon Brooks was also shot at close range, and he suffered two gunshot wounds to his head. Dr. McGarry testified that both of Damon . Brooks’s gunshot wounds had stippling around them. One bullet went downward through the brain to the base of the skull. The second bullet entered the neck and ended in the upper left back. Dr. McGarry found both bullets in the victim’s body. Dr. McGarry stated that the brain injury was | mf'atal, and the victim would have died within minutes. He noted that the weapon would have been aimed in the direction of the victim’s right side. Dr. McGarry also stated that both wounds were in a downward angle. Dr. McGarry concluded that Damon Brooks’ death was a homicide.

At trial, the defense called two witnesses: (i) Binatas Norman, and (ii) the defendant, Mr. Jones.

(i) Binatas Norman

Binatas Norman is the person that Mr. Jones was going to visit when Mr. Kiefer gave him a ride on the day of the shootings (February 15, 2007). Ms. Norman testified that Mr. Jones is the father of her son. She testified that in February 2007 she lived one block from the crime scene, the 1000 block of Kentucky Street.

(ii) Alfred Jones

Alfred Jones testified on his own behalf. He grew up in the Ninth Ward. He, like Mr. Kiefer, attended Kennedy, but he graduated from Douglass High School. He stated that Mr. Daniels and Mr. Kiefer played basketball together in school. Mr. Jones further stated that he, Mr. Kiefer, and Mr. Daniels were drug dealers. He knew that Mr. Daniels kept his money at Mr. Kiefer’s house. The money was kept in a cabinet that had a lock on it, and only Mr. Kiefer and Mr. Daniels had keys to the lock. One or two weeks before Christmas 2006, Mr. Kiefer contacted Mr. Daniels and told him that the money had been stolen. Mr. Jones was with Mr. Daniels when Mr. Kiefer contacted him by phone. Mr. Jones accompanied Mr. Daniels to Mr. Kiefer’s house. The back door to the house was off its hinges, and the cabinet was broken open. Mr. Kiefer told them that earlier | nthat day the Brooks Brothers and Mr. Campbell were at his house. Mr. Kiefer and the Brooks Brothers went to play basketball; Mr. Campbell went home. Mr. Kiefer discovered the money had been stolen when he returned from playing basketball.

After Mr. Jones and Mr. Daniels went to Mr. Kiefer’s house and Mr. Kiefer told them what happened, all three of them went to Mr. Campbell’s house. When they arrived, Mr. Kiefer went into the house by himself. He came out and told them that Mr. Campbell was not there. Mr. Kiefer then took Mr. Daniels and Mr. Jones home. Mr. Jones stated that Mr. Daniels thought that Mr. Kiefer had stolen the money because Mr. Kiefer had new rims on his car and was wearing a new gold chain. Mr. Daniels called Mr. Kiefer and told Mr. Kiefer that Mr. Jones had seen him with the new rims and gold chain. Mr. Jones stated that he did not know Mr. Campbell.

Mr. Jones further testified that he did not see Mr. Kiefer again until the day of the shootings, February 15, 2007. On that day, Mr. Kiefer was driving down Gallier Street and was stopped at a stop sign. Mr. Kiefer asked Mr. Jones if he had seen Mr. Daniels. Mr. Jones replied that he had not seen Mr. Daniels, but asked Mr. Kiefer for a ride to his girlfriend’s house. Mr. Jones got into the vehicle and gave Mr. Kiefer directions to the house. When they arrived at the house, Mr. Kiefer told Mr. Jones about the call he got from Mr. Daniels about the rims and chain. Mr. Kiefer asked Mr. Jones if he was saying that Mr. Kiefer stole the money. Mr. Jones said no. Mr. Kiefer then pulled out a gun and threatened to kill him. Mr. Jones reached for the gun and took it out of Mr. Kiefer’s hand. Mr. h2Jones then fell out of the car. The man in the back seat attempted to wrestle the gun away from him, and Mr. Jones shot him as Mr. Jones was falling out of the car. Mr. Jones stated that he did not know how many times he shot the weapon. He heard Mr. Kiefer and the two men (the Brooks Brothers) yelling to “get him, kill him.” After the shooting, he just ran. Three days later, Mr. Jones turned himself in after retaining an attorney. He denied any involvement in Mr. Campbell’s murder.

On re-direct, the State called one witness: Donald Hancock.

Donald Hancock

Donald Hancock, the telephone supervisor for the Orleans Parish Sheriffs Office, testified that his job is to monitor phone calls in the prison complex. All phone calls made by inmates are recorded and maintained. Mr. Hancock identified a CD recording of the phone calls made by Mr. Jones. Portions of these phone calls were played during the trial. The phone calls were between Mr. Jones and his mother, and Mr. Jones and a male friend, concerned whether they could get Mr. Campbell’s sister to testify that she believed that Mr. Jones was not involved in Mr. Campbell’s murder.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

| isln his sole assignment of error, Mr. Jones contends that the trial court erred in allowing the State to introduce evidence of Mr. Campbell’s murder. Before the trial, the State filed a Prieur motion alleging that the “evidence of the killing of Hillary Campbell has independent relevance to establish motive, intent, and plan on the part of Alfred Jones to preemptively assassinate the associates of Hillary Campbell before they found out he was involved in the murder of their friend.” As noted above, the evidence revealed that the same gun was used in Mr. Campbell’s and the Brook Brothers’ murders. Finding the evidence admissible, the trial court granted the State’s motion. At the beginning of the trial, the court instructed counsel on the limited scope of the admissible evidence regarding Mr. Campbell’s murder.

At trial, the State used the evidence of the prior murder to show that whoever killed Mr. Campbell had possession of the weapon on the day of the shooting. The State also used the evidence to show that Mr. Jones intended to shoot Mr. Kiefer and the Brooks Brothers. Mr. Jones also used the evidence of the prior murder to support his self-defense argument. Particularly, he testified that Mr. Kiefer had the gun and that Mr. Jones took it away from him in a struggle. Mr. Jones argued that he acted in self-defense because Mr. Kiefer was trying to kill him for one of two reasons: (1) Mr. Kiefer thought that Mr. Jones knew who stole the money, and Mr. Jones knew that he killed Mr. Campbell; or (2) Mr. Kiefer was going to kill Mr. Jones before Mr. Jones killed him because Mr. Kiefer thought that Mr. Jones had killed Mr. Campbell.

[UA trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. State v. Cosey, 97-2020, p. 13 (La.11/28/00), 779 So.2d 675, 684; State v. Wright, 11-0141, p. 7 (La.12/6/11), 79 So.3d 309, 316. This same standard applies to rulings regarding the admission of other crimes evidence. Wright, supra. The well-settled rule governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. See State v. Hatcher, 372 So.2d 1024, 1035-36 (La.1979). Nonetheless, La. C. Evid. art. 404(B) authorizes the use of such evidence for other purposes including proof of motive or intent.

Before other crimes evidence can be admitted as proof of intent three prerequisites must be satisfied: (1) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect. State v. Kahey, 436 So.2d 475, 488 (La.1983). To illustrate, in State v. Blank, 04-0204 (La.4/11/07), 955 So.2d |1590, the State sought to introduce evidence that the defendant killed or attempted to kill the occupants of residences during the commission of aggravated burglaries. The Louisiana Supreme Court found that the evidence met the three requirements enunciated in Kahey. The Supreme Court reasoned that “the acts were similar, in that they each involved home invasions where defendant entered the home to steal money, was caught by the resident, each of whom were somewhat elderly, and then killed or attempted to kill the resident.” Blank, 04-0204 at p. 42, 955 So.2d at 125. The Supreme Court further reasoned that “specific intent was a genuine issue at trial, in that it is an essential element of the crime, and was contested.” Id.

The erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Oldenbaugh, 10-0268, p. 26 (La.12/6/11), 82 So.3d 215, 251. As the Louisiana Supreme Court recently noted:

An error is harmless if the jury’s verdict actually rendered at trial was “surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); cf. Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988)(0’Connor, J.)(harmless-error analysis begins with the premise that the evidence admitted at trial is sufficient to support the verdict and asks whether the state can prove “ ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ”) (quoting Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 828,17 L.Ed.2d 81 (1967)).

Id.

Applying the principles to the facts of this case, we find no error in the trial court’s ruling allowing the admission of evidence of Mr. Campbell’s murder. The evidence was used to show that Mr. Jones was not acting in self-defense and had a | Tfimotive for shooting Mr. Kiefer and the Brooks Brothers. Such is permissible under La.Code of Evidence article 404(B).

Mr. Jones admitted that he shot the Brooks Brothers but argued that it was in self-defense. Mr. Jones contended that Mr. Kiefer had the gun and pulled it out, threatening to kill him. Mr. Jones testified that he pulled the gun away from Mr. Kiefer and fired in self-defense. Mr. Jones suggested that Mr. Kiefer wanted to kill him because Mr. Jones knew that Mr. Kiefer had stolen the money and blamed it on Mr. Campbell. In fact, Mr. Jones used the admission of Mr. Campbell’s murder to argue that Mr. Kiefer had killed Mr. Campbell because Mr. Campbell knew that Mr. Kiefer had taken the money and blamed it on Mr. Campbell or that Mr. Kiefer knew that Mr. Campbell had taken the money.

Mr. Kiefer, however, testified that he did not have the weapon but that Mr. Jones pulled the gun out and started shooting at Mr. Kiefer and the Brooks Brothers. Mr. Kiefer’s testimony further suggested that Mr. Jones wanted to shoot them because he thought they suspected he was involved in Mr. Campbell’s murder.

In sum, the introduction of the evidence of Mr. Campbell’s murder and the fact that both shootings involved the same weapon went to the issue of whether Mr. Jones was acting in self-defense. Whoever killed Mr. Campbell had the weapon in his possession and had a motive for trying to kill the other. Accordingly, the trial court did not err in allowing the State to introduce evidence of Mr. Campbell’s murder.

|17Even assuming the trial court’s evi-dentiary ruling was in error, the error would be harmless. Mr. Jones admitted that he shot at Mr. Kiefer and the Brooks Brothers in self-defense. However, Mr. Kiefer testified that Mr. Jones did not act in self-defense. Mr. Kiefer stated that Mr. Jones had the weapon and shot him and the Brooks Brothers after he exited the vehicle. Dr. McGarry’s testimony does not support Mr. Jones’s version of the incident. Dr. McGarry testified that the Brooks Brothers both were shot in the head, which wounds went in a downward motion. Ivan Brooks was also shot in the right upper back. These injuries indicate that the victims had their backs to Mr. Jones when they were shot. This testimony was sufficient for the jury to assess the credibility of the witnesses and accept the testimony of Mr. Kiefer that Mr. Jones was not acting in self-defense when Mr. Jones shot the Brooks Brothers.

This assignment is without merit.

DECREE

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . As discussed elsewhere, Mr. Jones’ sole assignment of error relates to the introduction of the evidence regarding Mr. Campbell’s murder.

      . La. C. Evid. art. 404(B) provides:
      Except as provided in Article 412 [regarding a victim’s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

      . See also State v. Williams, 96-1023, p. 30 (La.1998), 708 So.2d 703, 725-26 (evidence demonstrating that the defendant shot a man during a robbery just hours before the crime charged was admissible in a first-degree murder prosecution because evidence of the earlier shooting was relevant to show that the defendant intended to fire the gun at the victim even though he claimed that the gun accidently discharged); State v. Jackson, 625 So.2d 146, 150 (La.1993)(quoting State v. Cupit, 189 La. 509, 179 So. 837, 839 (1938)(" ‘[when] the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act was committed.’ ”))


author: PICKETT, Judge. PAINTER, J.

text:
    CITY OF ABBEVILLE, et al. v. VERMILION PARISH POLICE JURY, et al.
    No. 11-766.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 2012.
    Rehearing Denied April 4, 2012.

      James Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Plaintiff-Ap-pellee, City of Abbeville.
    Calvin Eugene Woodruff, Jr., Cooper & Woodruff, Abbeville, LA, for Plaintiff-Ap-pellee, City of Kaplan.
    Paul Gonsoulin Moresi III, Attorney at Law, Abbeville, LA, for Defendant-Appellant, Vermilion Parish Police Jury.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

liThe defendant, the Vermilion Parish Police Jury (VPPJ), appeals a judgment of the trial court ordering the VPPJ to pay for the pre-adjudicative costs of housing juveniles arrested by the police forces of the cities of Abbeville and Kaplan and ordered held by the courts for those municipalities in detention facilities outside of Vermilion Parish.

STATEMENT OF THE CASE

In addition to the state district court in Vermilion Parish, there are two ward courts with concurrent jurisdiction in some juvenile matters. The City of Abbeville is within the territorial jurisdiction of the Third Ward Court, and the City of Kaplan is within the territorial jurisdiction of the Ninth Ward Court. When a police officer for either Abbeville or Kaplan arrests a juvenile, they can petition either the district court or their respective ward courts for an order to detain the juvenile until a seventy-two hour hearing is held. Because Vermilion Parish has no juvenile detention facility, the juveniles must be transported to a facility outside of the parish. Two such facilities are the Lafayette Juvenile Detention Home in Lafayette Parish or the St. Martin Parish Sheriffs Office Detention Center. The cities argue that until June 2010, the Vermilion Parish Police Jury authorized the parish to pay for the costs associated with the pre-adju-dicative detention of all juveniles arrested in Vermilion Parish, even if they were arrested by city police officers and detained pursuant to a ward court order.

Based on its understanding of La.Ch. Code 815, in June 2010, the VPPJ refused to authorize the payment of these costs for juveniles arrested by police officers in Ab-beville and Kaplan and ordered detained by the ward courts. The VPPJ sent the bills for March 2010 forward to the cities to pay. Abbeville and | ?Kaplan responded by filing a Petition for Issuance of a Writ of Mandamus in Support of a Declaratory Judgment. In their petition, they asked the district court to order the VPPJ to pay the outstanding bills and all future bills for pre-adjudicative detention of juveniles. The cities also sought a declaration that La.Ch.Code art. 815 was unconstitutionally vague. The VPPJ filed a Reconventional Demand. The cities filed an exception to the reconventional demand.

The parties agreed to postpone a hearing on the reconventional demand and the exceptions thereto, and the trial court heard evidence and arguments on the cities’ petition. The trial court found that La.Ch.Code 815 is not applicable because neither the Lafayette Juvenile Detention Home nor the St. Martin Parish Sheriffs Office Detention Center is a “regional detention center or shelter care facility.” The trial court ordered the VPPJ to pay the bills. The VPPJ now appeals.

ASSIGNMENT OF ERROR

The VPPJ asserts one assignment of error:

The district court committed error in ordering the VPPJ to pay the cost of the detention of juvenile offenders when said detention is initiated by city police and ordered by the judges of the city courts of Abbeville and Kaplan, and in finding Louisiana Children’s Code Article 815(E) not applicable to this case.

DISCUSSION

Louisiana Children’s Code Article 815 states:

A. The peace officer or an appropriate representative of the arresting agency shall have the authority and responsibility to transport the child to the appropriate place of detention specified in Paragraphs B arid C of this Article, unless the child has been released to the care of his parents pursuant to Article 814(B)(1).
B. If the child has been taken into custody for the commission of a felony-grade delinquent act or of a misdemean- or-grade delinquent act based upon an offense against the person of another, the child shall be taken to a juvenile detention center.
laC. For the commission of any other misdemeanor-grade delinquent act, the child shall be taken to either a shelter care facility or a juvenile detention center.
D. Notwithstanding any other provision of this Code or other provision of law to the contrary, no judge shall order that a youth taken into custody for a felony-grade delinquent act or for a misdemeanor-grade delinquent act based upon an offense against the person of another be placed in a shelter care facility-
E. The governing authority of the parish or municipality requesting placement of a juvenile in either a regional detention center or a shelter care facility shall be responsible to the regional detention center or shelter care facility for the cost of confinement in accordance with a schedule which may be adopted by the regional detention center or shelter care facility.

The VPPJ and the cities dispute the effect of Section E on the situation in Vermilion Parish. “Statutory interpretation presents an issue of law for an appellate court. It is, thus, reviewed de novo. See Burnette v. Stalder, 00-2167 (La.6/29/01), 789 So.2d 573.” Stewart v. Estate of Stewart, 07-333, p. 3 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241, 1242-43.

Abbeville and Kaplan claim that La.Ch. Code 815(E) provides an exclusive listing of the facilities for which a municipality is responsible for the cost of confinement. Pursuant La.R.S. 15:1091 et seq., the state created a system of regional youth detention facilities. It is undisputed that neither the Lafayette Juvenile Detention Home nor the St. Martin Detention Center is a “regional detention center.” A “shelter care facility” is defined at La.Ch.Code art. 116(25) as “a licensed, physically unre-stricting public or private child caring facility, or a youth residential facility operated for runaway or homeless youth, which provides temporary care for children.” Throughout the Children’s Code, a “shelter care facility” is distinguished from a “detention facility.” See La.Ch.Code arts. 738, |4791, 814, 817, 819. Neither party introduced evidence that the Lafayette and St. Martin facilities are shelter care facilities.

On the other hand, the VPPJ argues that the listing in La.Ch.Code art. 815(E) is merely illustrative of the types of facilities for which municipalities are responsible for the cost of confinement. Instead, they argue the key phrase in section E is “governing authority of the parish or municipality requesting placement of a juvenile,” and because it is clear that the cities, through their respective ward courts, have requested placement of juveniles. The VPPJ cites Attorney General Opinion 1998-61, which answered the question, “Who bears the pre-adjudicative costs associated with the detention of a juvenile?” The attorney general, interpreting a previous version of La.Ch.Code art. 815, stated:

[T]he governing authority requesting the juvenile’s detention must pay the costs associated with that detention. LSA-Ch. C. Art. 815(D)(3) states:
“The governing authority of the parish or municipality requesting such placement and the administrator of the facility enter into a mutual agreement for reimbursement to the facility for the costs of the care provided.”
For example, if the sheriffs office requests the detention of a juvenile the parish must pay the costs associated with the juvenile’s detention. If the city police request the detention of the juvenile the city must pay the costs associated with the detention of the juvenile. As a result, the most important issue to consider in determining who pays the pre-adjudicative detention costs of a juvenile is which governing authority is requesting the detention. Whatever governing authority requests the detention must pay the pre-adjudicative detention costs.

Subsection D(3), relied on by the attorney general in reaching his opinion, was deleted by the Legislature in 1999. 1999 La. Acts No. 1359, § 1. Therefore, we find this attorney general’s opinion of no value in determining the issue before us.

| fiWe find that La.Ch.Code art. 815(E) applies only to regional detention facilities or shelter care facilities, and the facilities in question are neither. Our inquiry does not end there. The cities must also show that the VPPJ is legally responsible for these costs in order to be entitled to the relief sought. The cities argue that until June 2010 the police jury paid these costs, and that custom and practice are sufficient to create an obligation for the VPPJ. Civil Code art. 3 states:

Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.

Custom has a long tradition as a source of law in our state. Our supreme court long ago explained the meaning of Article 3:

Customs, according to our Civil Code, result from a long series of actions, constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent. La.Code, art. 3.
The recognition of customs, by our Code, necessarily admitted proof, other than that required to establish laws.

Broussard v. Bernard, 7 La. 211, 215 (La.1834). This jurisprudence has remained unchallenged since that time. The cities have not introduced sufficient evidence to prove that a custom exists whereby the Vermilion Parish is liable for the costs incurred for the pre-adjudicative detention of juveniles in Lafayette and St. Martin Parishes. Therefore, the cities have failed to show a legal basis for the VPPJ’s obligation to pay for the bills incurred at the Lafayette Parish Detention Home or the St. Martin Parish Detention Center. The judgment of the trial court is reversed.

CONCLUSION

The judgment of the trial court is reversed and the case is remanded for further proceedings on the remaining issues. The costs of this appeal, in the | f,amount of $1,876.50, are assessed as follows: one-half to the City of Abbeville, and one-half to the City of Kaplan.

REVERSED AND REMANDED.

PAINTER, J., dissents and assigns written reasons.

KEATY, J., dissents for the reasons assigned by Judge Painter.

PAINTER, J.

dissents.

|,1 respectfully dissent from the majority opinion. The majority finds that La.Ch. Code art. 815(E) applies only to regional detention facilities or shelter care facilities and that the facilities in question are neither. However, it finds that the cities must show that the Police Jury is legally responsible for these costs, and that the cities failed to introduce sufficient evidence to prove that a custom exists whereby the Police Jury is responsible for paying these costs. As a result, the majority finds that the cities have failed to show that the Police Jury is obligated to pay the costs for the juvenile detentions at issue.

I agree that La.Ch.Code art. 815(E) applies only to regional detention facilities or shelter care facilities and that the facilities in question are neither. However, I disagree with the finding with regard to custom. The Police Jury in its reconventional demand states that:

Prior to March, 2010, the Vermilion Parish Police Jury paid all costs associated with the confinement of juveniles who had been placed into detention or protective custody by the order of the Judge of Abbeville and Kaplan City Courts on the erroneous belief that the Parish was responsible for those costs.

Thus the pleadings of the Police Jury establish that it was the custom of the Police Jury to pay these costs. Accordingly, I would affirm the judgment of the trial court.