author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Darryl ROBINSON.
    No. 2011-KA-0066.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Darryl Robinson.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

Bln this criminal case, the defendant, Darryl Robinson, appeals his conviction and sentence for one count of armed robbery and one count of attempted armed robbery. His three assignments of error are misidentification, ineffective assistance of counsel, and excessiveness of sentence. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On August 7, 2009, the State filed a bill of information charging Mr. Robinson with two counts of armed robbery and two counts of attempted armed robbery. On that same date, Mr. Robinson pled not guilty. On January 15, 2010, the district court found probable cause and denied the motions to suppress the evidence and identification. The State proceeded to trial on counts two (attempted armed robbery) and four (armed robbery). Following a two-day jury trial held on August 25-26, 2010, Mr. Robinson was found guilty as charged. On September 23, 2010, a multiple bill hearing was held. On the armed robbery count, Mr. Robinson was adjudicated a second felony offender, and he was sentenced on that|2count pursuant to La. R.S. 15:529.1 to serve 198 years at hard labor without benefits. On the attempt count, he was sentenced to serve forty-nine years and six months at hard labor without benefits pursuant to La. R.S. 14:27 and 14:64. The district court ordered the sentences to run consecutively rather than concurrently. Mr. Robinson’s motion to reconsider sentence was denied. This appeal followed.

STATEMENT OF THE FACTS ■

This case involves two separate offenses that occurred in the early morning hours of May 11, 2008, at two separate locations in New Orleans. The first offense, which occurred at about 3:45 a.m., was the armed robbery of Frank Charles of his vehicle and cell phone at a McDonalds’ drive thru window. The second offense, which occurred at about 3:50 a.m., was the attempted armed robbery of Alicia Mackie at a nearby Burger King where she was working.

Armed robbery at McDonalds

Mr. Charles, who owns a nightclub, testified that on the day of the offense he closed his nightclub at about 3:45 a.m. On his way home from work, he stopped for something to eat at the McDonalds on South Claiborne Avenue. Immediately after Mr. Charles pulled up to the drive-thru menu box and rolled down his window, an armed robber appeared out of nowhere. The robber pointed a gun at Mr. Charles’s head and demanded that he get out of his vehicle, a grey Nissan pickup truck. Mr. Charles complied and moved to the back of his truck. The robber jumped in the truck and fled. Because Mr. Charles’ cell phone was in his truck, a McDonalds’ employee called the police for him.

|oMr. Charles described the robber as a black male dressed as a woman, wearing high heeled shoes, a flowered dress, and a wig. Based on his height of six feet, one inches tall, Mr. Charles estimated the robber’s height to be six feet tall. After returning to the scene, Mr. Charles realized that the robber might have been shorter because the robber was standing on a curb during the robbery. Mr. Charles chose Mr. Robinson’s picture from a six-person photographic line-up. Mr. Charles was certain of his identification. Mr. Charles indicated that he saw Mr. Robinson’s face when Mr. Robinson pointed the gun at him. He also saw Mr. Robinson’s face when he passed him getting out of the truck; at that point, he was within a foot of Mr. Robinson. At trial, Mr. Charles identified Mr. Robinson. He also identified the items of women’s clothing that were found by the police.

Attempted armed robbery at Burger King

Ms. Mackie was working the overnight shift at the Burger King on South Carroll-ton Avenue. She was working with two other employees: Lynette Stevenson and Juaquita Bradley, the manager. Ms. Mackie was working the drive thru window, and she was standing near the milkshake machine. From where she was standing, she could see when a vehicle pulled up to the drive thru menu box. At approximately 3:50 a.m., Ms. Mackie saw a vehicle pull up to the drive thru menu box. She asked whether she could take an order but received no reply. She then opened the window, and the robber appeared out of nowhere pointing a gun at her. When Ms. Mackie saw the gun, she ran to the back of the Burger King screaming. On her way, she grabbed Ms. Stevenson, who was mopping the floor. 1 .The two women ran into the office, and closed the door. By this time, the robber had entered the Burger King through the window and approached the office door. The robber stated: “Bitch, open the door before I blow it down.” When Ms. Stevenson opened the door, the robber grabbed Ms. Mackie and dragged her towards the front of the Burger King demanding money. Meanwhile, Ms. Stevenson escaped by running out the back door. Ms. Mackie screamed for the manager, but the manager did not immediately reply because she was in the bathroom.

As the robber and Ms. Mackie reached the front of the Burger King, the manager came out of the bathroom. They were near the window, and the robber ordered Ms. Mackie to her knees. The robber had the gun pointed at the top of her head, and he stated: “Bitch, I should make you take off your clothes.” During this time, the manager removed the cash drawer from the register and placed it on top of the counter. The robber grabbed the money and demanded that Ms. Mackie give him a kiss, but she turned away. The robber demanded that the manager give him a kiss, and she complied. The robber then left through the window. Ms. Mackie saw the robber drive off in a grey Nissan truck.

Ms. Mackie described the robber as wearing a red and black flowered dress, a red necklace, and a burgundy reddish wig with a black clamp. She subsequently identified Mr. Robinson as the robber from a six-person photographic line-up. Ms. Mackie further identified Mr. Robinson in court and testified that she was one hundred per cent positive that he was the person who robbed her. Ms. Mackie still | r,further identified the persons seen in the Burger King surveillance video taken during the robbery that was played for the jury.

Joint investigation of robberies

On the morning of the robberies at about 11:30 a.m., Officer Roach of the Ken-ner Police Department responded to a dispatch call of a possible vehicle theft in progress at 247 Clemson Street in Kenner. When he arrived on the scene, Officer Roach observed a grey pickup truck with one of the driver’s side windows broken. No one was around the truck. In the back seat of the truck, Officer Roach found a red female wig, a floral dress, a black bra, and red necklace. After running the license plate of the truck, he learned that it had been stolen from New Orleans that morning. Officer Roach then spoke to the woman who had called the police. Based upon information the woman provided, Officer Roach knocked on the door of 247 Clemson Street, apartment number two. Mr. Robinson answered the door and spoke with Officer Roach. Officer Roach then made contact by cell phone with the owner of the stolen truck, Mr. Charles. Mr. Charles informed Officer Roach of the armed robbery that morning. At trial, Officer Roach identified the items of women’s clothing he found in the truck; and he also identified Mr. Robinson.

New Orleans Police Department (“N.O.P.D.”) Detectives Wayne DeLarge and Jerry Baldwin investigated the Mc-Donalds and Burger King robberies, respectively. Detective Baldwin testified that the Burger King and McDonalds at which the two robberies occurred were located less than five minutes apart. | fiBecause of the similarities between the two robberies — the robber wore the same disguise in both robberies, the closeness in time and location of the robberies, and the involvement of a grey Nissan truck in both robberies — the detectives believed the robberies were related. The detectives thus conducted a joint investigation. After meeting with the Kenner Police Department, the detectives developed Mr. Robinson as a suspect; and they interviewed him. Detective Baldwin testified that when they met with Mr. Robinson, he observed that Mr. Robinson, like the suspect on the Burger King surveillance video, had muscular arms; a medium brown complexion; was approximately five-feet, seven inches tall; and had no tattoos or markings on his arms or legs. Detective Baldwin thus testified that Mr. Robinson matched the suspect he observed on the Burger King surveillance video.

Detective DeLarge compiled the six-person lineup shown to Mr. Charles on May 19, 2008. Detective DeLarge testified that Mr. Charles made a positive identification of Mr. Robinson. Detective DeLarge further testified that in making the positive identification Mr. Charles remarked: “the guy looks just like him.”

Detective Baldwin compiled the six-person lineup shown to Ms. Mackie on May 20, 2008. Detective Baldwin testified that Ms. Mackie made a positive identification of Mr. Robinson. Detective Baldwin further testified that neither of the other two Burger King employees who were present during the robbery were able to identify the robber.

After both victims (Mr. Charles and Ms. Mackie) made positive identifications of Mr. Robinson, the detectives obtained warrants for his arrest. 17They did not obtain a search warrant for Mr. Robinson’s residence (apartment) because they learned that he had been evicted.

The parties made three stipulations during the trial:

• Officer Lacrouts, a crime lab technician for the Kenner Police Department, collected the evidence from the vehicle (the Nissan truck) — the red bra, the black and red floral dress, the red wig, and the red necklace — and dusted the vehicle for fingerprints.
• Mr. Robinson had no tattoos on his arms, chest, or thighs.
• The fingerprint analysis done on fingerprints lifted from the vehicle (the Nissan truck) and the palm print lifted from the Burger King drive thru window turned up negative results.

Ashley McFarland testified for the defense and provided an alibi for Mr. Robinson. She testified that she formerly lived with Mr. Robinson in the apartment on Clemson Street in Kenner and that they had a child together. She further testified that they were living together in that apartment on the date of the robberies. According to Ms. McFarland, on the night of the robberies, Mr. Robinson was at home with her. In the early morning hours, he was outside of the apartment. She went outside to look for him, but she could not find him. About fifteen minutes later, he came inside the apartment wearing jeans and a shirt. Ms. McFarland testified that she did not recognize any of the women’s clothing worn by the robber during the robberies.

DISCUSSION

Errors Patent

A review of the record for errors patent reveals none.

IsAssignment of Error 1: Misidentifi-cation

By his first assignment of error, Mr. Robinson contends that the evidence is insufficient to support his convictions because the State failed to negate any reasonable probability of misidentification. In 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). See State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Under the Jackson 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, p. 9 (La.6/29/01), 796 So.2d 649, 657 (quoting State v, Captville, 448 So.2d 676, 678 (La.1984)). The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

In this case, Mr. Robinson was convicted of armed robbery and attempted armed robbery, violations of La. R.S. 14:27 and 14:64. “The elements of armed robbery are: (1) the taking, (2) of anything of value, (3) from a person or in the immediate control of another, (4) by the use of force or intimidation, (5) while armed with a dangerous weapon.” State v. Carter, 99-2234, p. 31 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 144(citing State v. Banks, 96-652, 96-653, p. 12 (La.App. 4 Cir. 1/15/97), 694 So.2d 401, 410). The thrust of Mr. Robinson’s |flcontention on appeal is not that the elements of the offenses were not satisfied but rather that the State failed to negate the reasonable probability of mis-identification. He contends that the lack of physical evidence to link him to the crimes should have created a reasonable doubt that he was the person who committed the offenses. He emphasizes that none of the fingerprints found on the truck and the Burger King drive thru window matched his fingerprints. He further emphasizes that the weapon was never found. He still further emphasizes that Mr. Charles’ initial description of him was inaccurate; Mr. Charles initially described Mr. Robinson as being six feet tall, yet he is only five-feet, six inches or five-feet, seven inches tall.

When, as in this case, the defendant disputes identity, the State must negate any possibility of misidentification. The standard for determining the reliability of an identification, or the substantial likelihood of misidentification, is the five-factor test enunciated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977): (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his or her prior description of the perpetrator; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Jones, 02-1171, p. 14 (La.App. 4 Cir. 6/26/02), 822 So.2d 205, 213 (citing Manson, supra). The focus of the Manson factors is on the victim’s visual identification of the perpetrator. See State v. Summers, 10-0341, pp. 8-9 (La.App. 4 Cir. 12/1/10), 52 So.3d 951, 956-57.

| inApplying the Manson factors to the facts in this case, we find the record supports the reliability of the identifications. Although Mr. Robinson wore a disguise, there is no indication that his face was covered during either robbery. Both victims had ample opportunity to view Mr. Robinson’s face during the respective robberies. Mr. Charles testified that he looked Mr. Robinson in the face when he was first accosted by him as well as when he passed by him on the way to the rear of his truck. Contrary to Mr. Robinson’s argument, Mr. Charles testified that the area was sufficiently lighted. Although Mr. Charles originally approximated Mr. Robinson’s height at six feet tall, he later realized that Mr. Robinson was shorter because he was standing on a curb during the robbery. Ms. Mackie likewise had ample opportunity to view Mr. Robinson’s face throughout her ordeal, despite that she was hysterical as Mr. Robinson argues. Indeed, Mr. Robinson even attempted to kiss her.

Aside from the discrepancy in Mr. Charles’s initial description regarding the robber’s height, both victims’ descriptions of the robber were similar: five-feet, six to five-feet, eight inches tall; 165 to 180 pounds; brown skin; and muscular to medium build. Both victims positively identified Mr. Robinson from a six-person lineup only a few days after the robbery — Mr. Charles did so eight days later, Ms. Mack-ie did so nine days later. Contrary to Mr. Robinson’s suggestion, the lapse of time between the robberies and the victims’ identifications was not so long as to make the victims’ identification unreliable. See State v. Sterling, 96-1390, p. 5 (La.App. 4 Cir. 11/13/96), 684 So.2d 74, 78 (holding a three-month lapse between the lacrime and the photographic line-up is not so long as to make the identification unreliable); see also State v. Jones, 10-1026, p. 2 (La.10/1/10), 48 So.3d 210, 211 (“Nor do we find the two month delay between the lineups an unreasonable length of time that would increase the likelihood of mis-identification.”). At trial, both victims testified that they were certain of their identifications. Both victims also identified the items of women’s clothing that Mr. Robinson wore during the robberies. As noted, the items of women’s clothing were found in Mr. Charles’ stolen grey Nissan truck that was found parked in front of Mr. Robinson’s apartment.

Further corroboration of Mr. Robinson’s identification as the person who committed the robberies was provided by Detective Baldwin’s testimony that Mr. Robinson’s physical characteristics matched those of the robber pictured in the Burger King surveillance video. Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the State’s witnesses were credible and that Mr. Robinson was guilty of both crimes. This assignment of error is without merit.

Assignment of Error 2: Ineffective Assistance of Counsel

Mr. Robinson’s second assignment of error is that his trial counsel was ineffective. Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed initially in the district court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. |124th Cir.1990); State v. Sparrow, 612 So.2d 191 (La.App. 4th Cir. 1992); State v. Petta, 496 So.2d 390 (La.App. 4th Cir.1986). However, in the interest of judicial economy, an appellate court can consider an ineffective assistance claim if the record on appeal contains sufficient evidence to evaluate the merits of the claim. State v. Seiss, 428 So.2d 444 (La.1983); State v. Haywood, 516 So.2d 196 (La.App. 4th Cir.1987); State v. Kelly, 92-2446 (La.App. 4 Cir. 7/8/94), 639 So.2d 888. Such is the case here.

To succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). A claim of ineffective assistance may be disposed of based upon a finding that either one of the two Strickland criteria have not been established. State v. James, 555 So.2d 519, 524 (La.App. 4th Cir.1989); State v. Frazier, 599 So.2d 419, 421 (La.App. 4th Cir.1992).

Mr. Robinson’s ineffective assistance claim is premised on his trial counsel’s failure to object at his multiple bill hearing to the State’s failure to prove the discharge date of his prior conviction. As a result of his counsel’s failure to object, he is barred from raising on appeal the State’s failure to prove that his prior conviction fell within the ten-year “cleansing period” of La. R.S. 15:529.1(C).

This Section shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods.

11sThe State generally has the burden of proving that the ten year cleansing period under La. R.S. 15:529.1 has not elapsed. In order to satisfy its burden, the State generally must prove the defendant’s discharge date because “[t]he expiration of the previous sentence is determined by the date of the actual discharge from supervision by the Department of Corrections.” State v. Martello, 98-2066, p. 14 (La.App. 4 Cir. 11/17/99), 748 So.2d 1192, 1201-02 (citing State v. Lorio, 94-2591, p. 4 (La.App. 4 Cir. 9/28/95), 662 So.2d 128, 130).

In this case, the State alleged in the multiple bill of information that on December 6, 1999, Mr. Robinson pled guilty to possession with intent to distribute marijuana in case number 98-1640 in Jefferson Parish. The bill of information filed in case number 98-1640 reflects that the crime was committed on March 4, 1998, and the guilty plea waiver of rights form and minute entry from December 6, 1999, reflect that Mr. Robinson was sentenced to serve ten years at hard labor with credit for time served. The minute entry further reflects that Mr. Robinson was in prison at the time he entered his guilty plea and that he was remanded to prison after being sentenced. The transcript from the multiple bill hearing reflects that defense counsel asked whether the State’s exhibit contained any information as to when Mr. Robinson was released from State supervision on the prior conviction, and the officer responded in the negative. Defense counsel neither lodged an objection nor filed a written response to the multiple bill. Thus, the issue was not | preserved for appellate review. State v. Boles, 99-0427, p. 7 (La.App. 4 Cir. 5/10/00), 763 So.2d 74, 79.

Mr. Robinson contends that he is prejudiced by his counsel’s failure to preserve the issue for review. The prejudice, he contends, is that if the issue had been preserved the State’s failure to meet its burden under La. R.S. 15:529.1(0 would have entitled him to a reversal of his multiple offender adjudication. He points out that the State’s failure to submit proof of his discharge date renders it impossible to calculate with certainty whether the cleansing period elapsed. He contends that “[i]f he were incarcerated continuously since March 4, 1998, [the date of the prior marijuana offense and apparently the date of his arrest for that offense] and had received credit for that entire time, the cleansing period would have elapsed on March 4, 2008, two months before the current offense was committed.”

Contrary to Mr. Robinson’s contention, any period of incarceration is not counted in computing the ten-year cleansing period; La. R.S. 15:529.1(0 provides that “any period of servitude by a person in a penal institution, within or without the State, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.” As noted above, the minute entry reflects that Mr. Robinson was in prison at the time he entered his guilty plea and that he was remanded to prison after being sentenced on December 6, 1999. Less than ten years elapsed between the date he pled guilty and was sentenced and remanded to Imprison (December 6, 1999) and the instant armed robbery offense (May 11, 2008). The record supports a finding that the ten year cleansing period had not elapsed. Mr. Robinson thus cannot show prejudice as a result of his trial counsel’s failure to properly preserve the issue for appellate review. This assignment of error is without merit.

Assignment of Error 3: Excessiveness of Sentence

By his final assignment of error, Mr. Robinson asserts that the maximum sentences the district court imposed on him on both counts are excessive. He also asserts that the trial court should not have ordered his sentences be served consecutively rather than concurrently. We separately address each of these contentions.

Consecutive sentences

The law concerning consecutive sentences is set forth in La. C.Cr.P. art. 883, which provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

A district court has discretion to order that sentences run consecutively rather than concurrently. State v. McCray, 28,531, p. 3 (La.App. 2 Cir. 8/21/96), 679 So.2d 543, 545. When “the convictions stem from separate incidents involving Indifferent victims and occur over a lengthy period of time, the resulting consecutive penalties will not be found to be an abuse of that discretion.” Id.

In this case, the district court expressly found that the incidents were separate, distinct, individual crimes and that the crimes were not a part of a pattern of one ongoing criminal act. The crimes affected different victims at different locations; hence, no basis for imposing concurrent sentences existed. Both victims testified that they were traumatized by the events. Mr. Robinson pointed the handgun at the victims’ heads throughout the robberies, and he made sexual threats to Ms. Mackie. Mr. Robinson also threatened the lives of more than one person during the Burger King robbery. In light of these factors, we find no abuse of discretion in the district court’s order that the sentences be served consecutively.

Excessive Sentences

Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Article 1, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive, or unusual punishment.” A sentence, although within the statutory limits, is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Caston, 477 So.2d 868, 871 (La.App. 4th Cir.1985); State v. Bonanno, 384 So.2d 355, 357 (La.1980).

117An appellate court reviewing an excessive sentence claim must determine whether the trial court adequately complied with the statutory sentencing guidelines set forth in La.C.Cr.P. art. 894.1, as well as whether the particular circumstances of the case warrant the sentence imposed. State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189-90; State v. Black, 98-0457, p. 7 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 891. If the appellate court finds the district court adequately complied with Article 894.1, it then must determine whether the sentence imposed is too severe in light of the particular defendant and the particular circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239; see also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185; State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). However, a trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985).

On appellate review of an excessive sentence claim, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462. The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).

|1sAs noted, Mr. Robinson challenges as excessive the maximum sentences the district court imposed on him on both counts: 198 years without benefits as an habitual (double) offender on the armed robbery conviction under La. R.S. 15:529.1(A)(l)(a); and forty-nine and a half years without benefits under La. R.S. 14:27 and 14:64. Mr. Robinson urges that the district court failed to take into consideration that no shots were fired, that no one was seriously injured, and that no evidence was presented that he was ever convicted of a violent crime before these robberies. Although Mr. Robinson urges that he is not the most heinous of offenders, the sentences the district court imposed on him are supported by the record and the jurisprudence.

At sentencing the district court reviewed the facts of the case that were established at the trial. The district court then found that under the sentencing guidelines of La.C.Cr.P. art. 894.1 there was an undue risk that during any period of suspended sentence or probation Mr. Robinson would commit another crime. The district court advised Mr. Robinson that he was in need of correctional treatment in a custodial environment and that a lesser sentence would depreciate the seriousness of his crimes.

At sentencing the district court also considered the aggravating circumstances listed in La.C.Cr.P. art. 894.1(B). The district court found that there were several aggravating circumstances present in the instant cases, including the following:

• Mr. Robinson in committing the robberies manifested deliberate cruelty to the victims and made threats to the victims;
| is* He used a dangerous weapon and foreseeably created the risk of death or great bodily harm to more than one person during the robberies;
• His actions caused significant psychological injury to Ms. Mackie and significant economic loss to Mr. Charles;
• Mr. Robinson’s conduct was unjustified;
• He showed no remorse;
• The State’s evidence was overwhelming;
• The offenses were crimes of violence; and
• Mr. Robinson had a criminal history.

Mr. Robinson failed to offer any mitigating circumstances at the sentencing hearing. Thus, a sentence of imprisonment was warranted by the circumstances of this case.

The jurisprudence is replete with cases in which appellate courts have affirmed the imposition of the maximum sentence of 198 years on a habitual offender for armed robbery. See State v. Doleman, 02-0957 (La.App. 4 Cir. 12/4/02), 835 So.2d 850; State v. Hawthorne, 00-1258 (La.App. 4 Cir. 11/8/00), 772 So.2d 924; State v. Freeman, 00-0238, p. 14 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, 491 (collecting cases). The jurisprudence also supports the imposition of the maximum sentence of forty-nine and a half years on the attempted armed robbery count. See State v. Stanton, 05-0812 (La.App. 4 Cir. 3/8/06), 929 So.2d 137 (affirming the imposition of a forty-five year sentence on a defendant who was convicted of attempted armed robbery); see also State v. Augustine, 482 So.2d 150 (La.App. 4th Cir.1986)(affirming imposition of a forty-nine and a half year sentence on a defendant convicted of attempted armed robbery). It cannot be said 12nthat the sentences imposed on Mr. Robinson make no measurable contribution to acceptable goals of punishment, are nothing more than the purposeless imposition of pain and suffering, or are grossly out of proportion to the severity of the crimes. Thus, the sentences imposed on Mr. Robinson are not unconstitutionally excessive.

Considering the record, the extensive reasons given by the district court for the sentences imposed, and the jurisprudence, we find the sentences imposed on Mr. Robinson are not excessive. This assignment of error is without merit.

DECREE

For the forgoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED

      . After the trial in this case, on October 28, 2010, the State nolle prosequied the remaining two counts.

      . La. R.S. 15:529.1(0 provides:

      . An exception is recognized when less than ten years have elapsed between convictions. State v. Tucker, 95-0030, p. 11 (La.App. 4 Cir. 9/18/96), 682 So.2d 261, 266. The exception is not applicable here.


source: Caselaw Access Project

author: CARTER, C.J. McCLENDON, J., WELCH, J.,

license: Public Domain

text:
    Jane DOES and John Does v. Charles C. FOTI, Attorney General for the State of Louisiana; Eddie Jordan, District Attorney for the Parish of Orleans; Frank Minyard, Coroner for the Parish of Orleans; and Rose Agnes Savoie; Cable News Network, Inc.; the Times-Picayune, LLC; and Other Unknown Applicants for Information under the Public Records Act.
    No. 2011 CA 0014.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 8, 2011.

      Shantell L. Payton, Stephen J. Hae-dicke, Pauline F. Hardin, New Orleans, LA, for Plaintiffs/Appellants, 4 Jane Does.
    Ralph Capitelli, New Orleans, LA, for Plaintiffs/Appellants, 2 Jane Does, 2 John Does.
    Michael H. Ellis, Metairie, LA, for PlaintiffAppellant, 1 John Doe.

      Charles W. Blau, Dallas, TX, for Plaintiffs/Appellants, 3 John Does.
    Thomas M. Flanagan, New Orleans, LA, for Defendants/Appellants, 2 Jane Does, 1 John Doe.
    Bruce G. Whittaker, New Orleans, LA, for Plaintiff/Appellant, 1 Jane Doe.
    Clarence Roby, New Orleans, LA, for Plaintiffs/Appellants, 11 Jane Does, 9 John Does.
    Paul Coggons, Dallas, TX, for Plaintiffs/Appellants, 1 Jane Doe, 1 John Doe.
    Robert Jenkins, New Orleans, LA, for Plaintiffs/Appellants, 15 Jane Does, 3 John Does.
    Ralph S. Whalen, Jr., New Orleans, LA, for Plaintiffs/Appellants, 1 Jane Doe, 1 John Doe.
    Stephen D. London, New Orleans, LA, for Plaintiff/Appellant, 1 Jane Doe.
    Lindsay A. Larson, III, New Orleans, LA, for Plaintiff/Appellant, 1 John Doe.
    Bryan C. Reuter, New Orleans, LA, for Plaintiffs/Appellants, 2 Jane Does, 1 John Doe.
    Edward J. Castaing, New Orleans, LA, for Plaintiffs/Appellants, Lori Budo and Cheri Landry.
    Fred L. Herman, Renee F. Smith, William D. Aaron, Jr., Mark C. Carver, Richard A. Goins, New Orleans, LA, for Plaintiffs/Appellants, Edward Jordan, Jr., Former District Attorney, and Leon A. Cannizzaro, District Attorney for the Parish of Orleans.
    Kurt Wall, David Peterson, Emaile A. Boyce, Baton Rouge, LA, for Plaintiff/Appellant, James D. “Buddy” Caldwell, Louisiana Attorney General.
    Richard T. Simmons, Jr., Metairie, LA, for Intervenor/Appellant, Dr. Anna Pou.
    James E. Lapezo, Brian A. Jackson, New Orleans, LA, Kurt S. Blankenship, Metairie, LA, Glen R. Petersen, Baton Rouge, LA, for Defendant/Appellee, Tenet Health System Memorial Medical Center, Inc.
    John D’Guilio, Baton Rouge, LA, for Intervenor/Appellee, Cheri Landry.
    Paul G. Preston, New Orleans, LA, for Intervenor/Appellee, LifeCare Hospitals of New Orleans, LLC.
    E. Wade Shows, Baton Rouge, LA, for Intervenor/Appellee, Louisiana State Board of Nursing.
    James E. Boren, Baton Rouge, LA, for Plaintiff/Appellee, 1 Jane Doe.
    Suzanne K. Scalise, Vickie A. Elmer, New Orleans, LA, for Plaintiffs/Appellees, Jane Does.
    Stephen S. Stipelcovich, Houma, LA, for Plaintiffs/Appellees, Douglas Savoie, Lou Ann Savoie, Jeannie Savoie.
    Pamela J. Lormand, New Orleans, LA, Tony Clayton, Port Allen, LA, for Defendant/Appellee, LifeCare Hospitals of New Orleans, LLC.
    Loretta G. Mince, New Orleans, LA, for Defendants/Appellees, The Times-Picayune, LLC and Cable News Network.
    C. William Bradley, Jr., Bradley R. Bel-som, New Orleans, LA, for Defendant/Ap-pellee, Franklin E. Minyard, Jr., M.D., Coroner for the Parish of Orleans.
    Before CARTER, C.J., GAIDRY, McClendon, welch, and HIGGINBOTHAM, JJ.
   CARTER, C.J.

|sThis case arises in the context of a public records request. At issue is whether the Attorney General’s investigative file into the circumstances surrounding numerous deaths at Tenet Health System Memorial Health Center following Hurricane Katrina is presently subject to disclosure under the Louisiana Public Records Act. Concluding the file presently pertains to reasonably anticipated criminal litigation, we hold that the file is exempt from disclosure pursuant to La.Rev.Stat. Ann. § 44:3 A(l). So holding, we reverse the district court judgment.

FACTS AND PROCEDURAL HISTORY

Hurricane Katrina hit New Orleans, Louisiana in August 2005. In the immediate aftermath of the storm, forty-three bodies were removed from Tenet Health System Memorial Medical Center, Inc. (Tenet-Memorial). LifeCare Hospitals of New Orleans, LLC (LifeCare) operated a separate acute care facility on the seventh floor of Teneb-Memorial, and several of the deceased were LifeCare patients.

In September 2005, Charles Foti, then Louisiana Attorney General (AG), began an investigation into the Tenet-Memorial deaths. The AG investigation began as a Medicaid fraud investigation and culminated in the accumulation of thousands of documents and the July 17, 2006, arrests of three medical professionals for second degree murder.

Following the arrests, AG Foti gave a complete copy of the investigative file to the Orleans Parish District Attorney’s Office. In February 2007, then Orleans Parish District Attorney (DA) Eddie Jordan empanelled a special investigative grand jury to consider the matter. Two | f,healthcare professionals were granted immunity in exchange for their testimony. On July 24, 2007, the special grand jury returned a “no true bill,” refusing to indict the remaining healthcare professional.

Thereafter, the Cable News Network (CNN), the Times-Picayune, LLC (Times-Picayune), and others submitted numerous public records requests to the AG requesting production of the investigative file. In response, the AG filed suit seeking a declaratory judgment clarifying what portions of its investigative file, if any, were subject to release under the Public Records Act.

Several healthcare professionals, who worked at Tenet-Memorial during and after Hurricane Katrina and who referred to themselves only as Jane and John Does, filed petitions seeking a declaratory judgment that the AG and DA investigative files are not subject to disclosure under the Public Records Act. Named as defendants were the AG, the DA, the Orleans Parish Coroner, Rose Agnes Savoie (a LifeCare patient who died at Tenet-Memorial in the aftermath of Hurricane Katrina), CNN, Times-Picayune, and “all other persons or entities who have made requests under the Louisiana Public Records Act.” In response, CNN and Times-Picayune filed a cross-claim and a motion for a writ of mandamus and preliminary injunction seeking to compel the release of the investigative file. Several interested parties (including the Louisiana State Board of Nursing, Lori Budo, Cheri Landry, LifeCare Hospitals of New Orleans, LLC, Tenet-Memorial, and Dr. Anna Pou) were allowed to intervene.

The AG filed under seal a copy of his investigative file, including an index. On September 19, 2007, the trial court signed a judgment holding that |7the majority of the investigative file was public record and subject to release. The district court denied the motion for a writ of mandamus and preliminary injunction. Numerous parties sought supervisory review with this court, and on April 18, 2008, this court granted the writs in part and denied the writs in part, giving identical reasons for each application. A majority reasoned that because there is no prescriptive period for homicide charges, criminal litigation was not finally adjudicated by the grand jury’s return of a no true bill. Accordingly, the investigative file was exempt from disclosure as it pertains to reasonably anticipated criminal litigation pursuant to La. Rev.Stat. Ann. § 44:3 A(l). The majority further concluded that the investigative file was prepared in conjunction with, and in preparation for, the eventual presentation to a grand' jury. Thus, the investigative file contents were shielded from disclosure by persons present at the grand jury meeting or having confidential access to information concerning the grand jury proceeding pursuant to La.Code Crim. Proc. Ann. art. 434.

CNN and Times-Picayune sought review with the Louisiana Supreme Court. On July 1, 2009, the supreme court reversed and set aside the decisions of the district court and this court. A Matter Under Investigation, 07-1853 (La.7/1/09); 15 So.3d 972, 994. The supreme court concluded that La.Rev.Stat. Ann. § 44:3 A(l) “exempts from the required disclosure under the Public Records Act records held by the offices of the Attorney General and the District Attorney that pertain to any criminal litigation which can be reasonably anticipated until such litigation has been finally adjudicated or otherwise settled.” Investigation, 15 So.3d at 994. The supreme court set forth an illustrative list of factors for a court to consider in determining 18whether criminal litigation is reasonably anticipated. Investigation, 15 So.3d at 992. Finding the record in the instant case was insufficient to make the determination, the matter was remanded to the trial court for further proceedings. Investigation, 15 So.3d at 994.

On remand, the district court considered additional evidence, including the testimony of current AG James D. “Buddy” Caldwell and current DA Leon A. Cannizzaro.

On August 30, 2010, the district court signed a “Final Judgment” ordering, adjudging, and decreeing in pertinent part that:

[The] investigatory file created by the Louisiana Attorney General in connection with his investigation of certain deaths occurring at Memorial Medical Center during the days following Hurricane Katrina does not pertain to criminal litigation which is either pending or which can be reasonably anticipated, and as a result, the exemption contained in Louisiana Revised Statutes section 44:3(A)(1) does not apply.
[The] investigatory file created by the Office of the Attorney General, and held by the Office of the Attorney General and the District Attorney for Orleans Parish, is non-exempt from production under the Public Records Act, as such file involves criminal litigation which is not “reasonably anticipated” as defined by the Louisiana Supreme Court in In re A Matter Under Investigation, 2007-1853 (La.7/1/09); 15 So.3d 972.
As this court finds that La. R.S. 44:3(A)(1), as asserted by the Attorney General for the State of Louisiana and the District Attorney for Orleans Parish, does not contain a reasonable and viable exception to production, and such exception has not been sufficiently borne by the Attorney General for the State of Louisiana and the District Attorney for Orleans Parish.
[The] Court’s prior Judgment of September 19, 2007 is hereby re-issued by this Court, except that in light of the Supreme Court’s ruling vacating the August 16, 2007 Order of Judge Calvin Johnson of the Orleans Parish Criminal District Court, any references made to that order in the Court’s prior Judgment are now moot.
[The] Times-Picayune, LLC and CNN request to recover reasonable attorney fees and costs pursuant to Louisiana Revised ^Statutes section 44:35 is pretermitted pending review of the judgment herein.
[Because] this Court has re-issued its prior Judgment dated September 19, 2007 that “patient medical records ... shall not be released,” Memorial Medical Center’s Motion in Limine is DENIED.
[The] Motion to Dismiss; Alternatively, For Index and Protective Order filed by Lori Budo, Cherie Landry, and Jane and John Does, and the Motion to Strike filed by The Times-Picayune and CNN, are DENIED.

Appeals were filed by unnamed John and Jane Does, Cheri Landry, Lori Budo, Dr. Anna Pou, the District Attorney for the Parish of Orleans, and Attorney General James D. “Buddy” Caldwell (Appellants). Collectively, this court is presented with the following issues:

1. Did the district court fail to give proper consideration to the factors set forth by the Louisiana Supreme Court in In re A Matter Under Investigation, 07-1853 (7/1/09); 15 So.3d 972, 992, in deciding that criminal litigation is not reasonably anticipated and the exemption set forth in La.Rev.Stat. Ann. § 44:3 A(l) is inapplicable?
2. Did the district court judgment reach beyond the scope of the Louisiana Supreme Court’s remand and fail to apply the law of the case in that it addresses issues of grand jury secrecy as set forth in La.Code Crim. Proc. Ann. art. 434, a matter that already has been decided by this court?
3. Did the trial court predetermine the matter prior to the contradictory hearing?
4. Did the trial court err in failing to consider the work product exception to the Public Records Act?
5. Did the trial court err in forcing the district attorney to reveal the government’s evidence and strategies and the nature, scope, direction, and focus of its investigations?
6. Did the trial court err in failing to recognize that the Does’ privacy interests shield portions of the attorney general’s investigative file from disclosure?

| inTimes-Picayune and CNN (Appellees) answered the appeal, requesting additional attorney fees pursuant to La.Rev.Stat. Ann. § 44:35.

For the reasons that follow, we reverse the district court judgment, render judgment in favor of the Appellants, and deny Appellees’ answer to the appeal.

DISCUSSION

Reasonably Anticipated Criminal Litigation

The investigative file at issue is a public record that any person may obtain a copy of unless the Public Records Act or another law specifically provides otherwise. La.Rev.Stat. Ann. § 44:31; Investigation, 15 So.3d at 989. The right of the public to access public records is a fundamental right guaranteed by the Louisiana Constitution. La. Const. Ann. art. XII, § 3. The public’s right of access to a public record must be construed liberally in favor of free and unrestricted access, and access can be denied only when a law specifically and unequivocally provides otherwise. Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984).

The Louisiana Public Records Act contains a specific exemption for records pertaining to reasonably anticipated criminal litigation. See La.Rev.Stat. Ann. § 44:3 A(l).

The plain language of the statute provides that nothing in the Public Records Act shall require disclosures of records held by the offices of the AG or the DA whén the records pertain to pending or reasonably anticipated criminal litigation until the criminal litigation has been finally adjudicated or otherwise settled.

Investigation, 15 So.3d at 991. Everything in the AG’s investigative file pertained to criminal litigation; therefore if criminal litigation is pending or reasonably anticipated, then the entire file is covered by the La.Rev.Stat. |nAnn. § 44:3 A(l) exemption, and at this time, disclosure is not required under the Public Records Act. Investigation, 15 So.3d at 991.

The burden of proving that the file is not subject to inspection, copying, or reproduction by a member of the public rests with the custodian. La.Rev.Stat. Ann. § 44:31(3). Whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to access. Landis v. Moreau, 00-1157 (La.2/21/01); 779 So.2d 691, 694.

Herein, there is no criminal litigation pending; therefore, the sole issue is whether criminal litigation can be reasonably anticipated such that the exemption set forth in La.Rev.Stat. Ann. § 44:3 A(l) applies. “Reasonably anticipated” has been defined as reasonably foreseen or contemplated. Investigation, 15 So.3d at 991. The custodian need not prove that criminal litigation will be pursued or will almost certainly be pursued. Investigation, 15 So.3d at 991. Rather, the exemption applies if it can be reasonably anticipated that “criminal litigation will be brought against some potential criminal defendant who was part of the investigation.” Investigation, 15 So.3d at 991.

The determination of whether a particular record falls within the exemption provided by La.Rev.Stat. Ann. § 44:3 A(l) must be made on a case-by-ease basis. Louisiana Capital Assistance Center v. Riley, 10-0733 (La.App. 4 Cir. 12/15/10); 54 So.3d 177, 179, writ denied, 11-0115 (La.2/25/11); 58 So.3d 459. This determination requires more than judicial acceptance of a prosecutor’s assertion of privilege. Conella v. Johnson, 345 So.2d 498, 501 (La.1977); Cormier v. Public Records Request of DiGuilio, 553 So.2d 806, 807 (La.1989); Investigation, 15 So.3d at 991. Rather, the determination must be made following a contradictory hearing where there is an opportunity for cross-examination and the presentation of evidence to contradict the claim of privilege. Investigation, 15 So.3d at 991-92. A court should be guided by objective factors in determining whether criminal litigation is reasonably anticipated pursuant to La.Rev.Stat. Ann. § 44:3A(1), such as:

1. Whether criminal litigation may still be initiated given the prescriptive period of the offense to be charged;
2. The temporal and procedural posture of each case;
3. Whether criminal litigation has been finally adjudicated or otherwise settled;
4. The assertion of the prosecutorial authority as to its intent or lack thereof to initiate criminal litigation;
5. Whether the prosecutorial authority has taken objective, positive, and verifiable steps to preserve its ability to initiate criminal litigation, including but not limited to: preserving evidence, maintaining contact with witnesses, and continuing an investigation;
6. The time it would take to appropriately investigate and try an offense;
7. The prosecutor’s inherent authority to determine whom, when, and how he will prosecute;
8. The severity of the crime;
9. The availability of witnesses, victims, and defendants;
10. The spoliation of evidence;
11. The reasonable likelihood that a missing witness or an absconded defendant might be found; and
12. The reasonable likelihood that additional witnesses might be willing to come forward with the passage of time.

Investigation, 15 So.3d at 992.

11SWhether criminal litigation can be reasonably anticipated is a mixed question of fact and law. Mixed questions of fact and law generally are subject to the manifest error standard of review. See Dermna v. Automobile Club Inter-Insurance Exchange, 08-2810 (La.6/26/09); 15 So.3d 95, 100 n. 4. Herein, however, the dispositive (or relevant) facts are not disputed. Where the relevant facts are not in dispute, the issue can be decided as a matter of law, and the review is de novo. Demma, 15 So.3d at 100 n. 4. As a reviewing court, we decide whether the undisputed, relevant facts satisfy the custodian’s burden of proving that criminal litigation can be reasonably anticipated as provided in La.Rev.Stat. Ann. § 44:3 A(l) in light of the objective factors set forth by the Louisiana Supreme Court in Investigation, 15 So.3d at 992.

In evaluating the issue, the first consideration is whether criminal litigation may still be initiated given the prescriptive period of the offense to be charged. Assistant AG Arthur Schafer said within a month or two into the investigation, he personally felt he was investigating murder. Three individuals were arrested for second degree murder. DA Cannizzaro stated: “I do believe we have a homicide. I do believe human beings were killed as a result of actions of doctors.” In the words of AG Caldwell, “[Mjurder eases are never over.” There is no time limitation upon the institution of prosecution for any crime punishable by death or life imprisonment, which includes the crimes of first and second degree murder. La.Code Crim. Proc. Ann. art. 571; La.Rev.Stat. Ann. § 14:30 C; La.Rev.Stat. Ann. § 14:30.1 B.

Second, a court should consider the temporal and procedural posture of the case. The alleged crimes occurred in September 2005. The initial | ^investigation by the AG’s office began in 2005 and resulted in the arrests of three healthcare professionals in July 2006. Once the arrests were effected by the AG’s office, the DA became involved. The investigative grand jury convened in February 2007, and testimony before the grand jury began in May 2007. Two of the arrestees were granted immunity in exchange for their testimony before the grand jury. On February 24, 2007, the grand jury returned a no true bill against the third arrestee. Shortly thereafter, CNN, Times-Picayune and others submitted public records requests to the AG requesting copies of its investigative file. In response, the AG filed the present suit for declaratory relief on August 10, 2007, just shy of the two-year anniversary of the alleged crimes.

A third consideration is whether criminal litigation has been finally adjudicated or otherwise settled. There have been no final adjudications in this case; nor is there affirmative evidence that the case is settled as against the three arrestees or against any unnamed potential defendants. The grand jury returned a no true bill against one arrestee; however, the failure to return a true bill does not prohibit the district attorney’s office from seeking a future indictment against that person. The law is clear that “[t]he failure or refusal of a grand jury to indict a defendant does not preclude a subsequent indictment by the same or another grand jury, or the subsequent filing of an information or affidavit against him, for the same offense.” La.Code Crim. Proc. Ann. art. 386. Assistant AG Schafer testified that after the return of the no true bill, the AG acquiesced in the expungement of the arres-tee’s arrest record. However, no law has been cited for the proposition that acquiescence in an expungement bars prosecution of the same individual by someone else.

|1sAt least two individuals were granted immunity in exchange for their testimony before the grand jury. Although the type of immunity granted is unclear, Louisiana jurisprudence recognizes two types of immunity: “transactional immunity” and “use plus derivative use immunity.” “Transactional immunity” affords complete immunity from prosecution on the charged offense. State v. Foster, 02-1259 (La.App. 1 Cir. 2/14/03); 845 So.2d 393, 399, writ denied, 03-0775 (La.10/3/03); 855 So.2d 308. “Use plus derivative use immunity” allows for prosecution on the charge, but the state cannot “use” evidence provided by the defendant as a result of the immunity agreement or any information derived therefrom. Foster, 845 So.2d at 399. When a person is compelled to testify before the grand jury in contravention of the right against self-incrimination, “no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.” La.Code Crim. Proc. Ann. art. 439.1 C. If the government has independent evidence, a party who has testified under compulsion may still be prosecuted. Foster, 845 So.2d at 399.

Perhaps more relevant to the case at hand is the fact that the grand jury’s return of a no true bill against one arres-tee and the grant of immunity to at least two grand jury witnesses have no bearing on the DA’s authority to pursue charges against others. The AG’s investigation was not limited to the three arrestees. As AG Caldwell explained, there are other potential defendants. For example, in 2009, DA Cannizzaro asked Coroner Franklin 11fiE. “Frank” Minyard for a classification on the death of a patient that was not under the care of those arrested in 2006. However, neither the AG nor the Orleans Parish DA is presently investigating the deaths at TeneR-Memorial.

Fourth, has the prosecutorial authority asserted its intent or lack thereof to initiate criminal litigation? AG Caldwell testified that his office operates as an investigative body and whether criminal litigation is to be instigated is within the exclusive province of the district attorney. DA Cannizzaro cautioned that there is a difference between the existence of a homicide and whether the state has a case that it can pursue in a court of law. He candidly stated, “At this point in time, I do not believe I have sufficient evidence to go forward with the prosecution; so, therefore, I would say that I don’t have the intention at this present time to prosecute this case.” However, he offered that he “cannot say the case is over,” as he has “an obligation to continue to investigate.”

The supreme court directed that a court should consider whether the prosecutorial authority has taken objective, positive, and verifiable steps to preserve its ability to initiate criminal litigation. The current AG and DA both asserted the La.Rev.Stat. Ann. § 44:3 A(l) “reasonably anticipated criminal litigation” exemption while under oath. At a December 2009 motions hearing, Renee Smith, representing the Orleans Parish District |17Attorney’s Office, stated that her office did not have either the original or a copy of the AG’s investigative file. However, during the July 2010 bench trial, DA Cannizzaro indicated that the investigative file is comprised of three large boxes that he keeps in his office, to the right of where he sits. As a further indication of his commitment to potential criminal litigation, DA Cannizzaro referenced an August 25, 2009, New York Times article authored by Sheri Fink in which Dr. Ewing Cook, formerly associated with Tenet-Memorial, stated that patients at the hospital were “killed.” One patient named by Dr. Cook was Jannie Burgess, resulting in DA Cannizzaro asking Coroner Dr. Minyard to review the classification of Burgess’s death. As DA Cannizzaro explained, “from my perspective, I see that we have a doctor essentially confessing in the newspaper to what we believe was criminal conduct, and I thought it required that we do more, and we did more than just sort of let that slide.” However, Dr. Minyard declined to classify Ms. Burgess’s death as a homicide, and her death remains “unclassified.” As a result, DA Cannizzaro did not pursue a homicide charge. Lastly, DA Cannizzaro indicated he has met with attorneys for “potential defendants,” and he never expressed an intention not to prosecute those individuals.

The sixth consideration is the amount of time it would take to appropriately investigate and try an offense. Neither the AG nor the DA is presently investigating the case. The DA candidly admitted he needs new evidence such as a confession or new scientific technology to cause him to reopen the criminal investigation. However, it is clear that much investigation already has taken place. Thousands of pages of evidence were already accumulated during the AG’s year-long investigation. All of this | isevidence has been preserved. There are other identified witnesses that have not yet been interviewed, but not because they are unaccounted for.

The supreme court recognized the prosecutor’s inherent authority to determine whom, when, and how he will prosecute. The DA has the entire charge and control of every criminal prosecution instituted or pending in his district and determines “whom, when, and how he shall prosecute.” La.Code Crim. Proc. Ann. art. 61. The Louisiana constitution provides that, except as otherwise provided for in the constitution, a district attorney, or his designated assistant, has “charge of every criminal prosecution by the state in his district.” La. Const. Ann. art. V, § 26(B). Specific to the Parish of Orleans, the DA or his designated assistant “shall have charge of every criminal prosecution by the state in the Criminal District Court for the Parish of Orleans ... [and] shall be the representative of the state before the grand juries in the parish of Orleans and shall be the legal advisor to the grand juries.” La.Rev.Stat. Ann. § 16:1 C. DA Cannizzaro was clear that he believes it is his duty to continue the investigation into the incident at Tenet-Memorial.

Eighth, the supreme court indicated that a court should consider the severity of the alleged crime. This occurrence involved the deaths of multiple elderly or infirm individuals whose care had been entrusted to medical personnel. AG Caldwell explained there were a “huge” number of deaths at Tenet-Memorial. Assistant AG Schafer testified that 43 bodies were removed from Tenet-Memorial Medical Center on September 12, 2005. DA Cannizza-ro explained that several individuals were “killed” as the result of certain medications they were given while in Teneb-Memorial. In response |13to questioning, DA Canniz-zaro acknowledged that the killing of a human being is the most serious thing that prosecutors deal with and that the killing of multiple human beings in and around the same occurrence is even more severe. AG Caldwell cautioned that this case may not be limited to the three individuals arrested for second degree murder on July 17, 2006, as others were involved. See La.Rev.Stat. Ann. § 14:24 (“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, are principals.”)

Ninth, the court should inquire about the availability of witnesses, victims, and defendants. Closely related to this inquiry is the eleventh consideration set forth by the Louisiana Supreme Court — whether a missing witness or an absconded defendant might be found. Assistant AG Schafer was involved in the original Tenet-Memorial investigation. Schafer testified that he personally interviewed over 70 witnesses. Approximately 100 witnesses were interviewed during the AG’s year-long investigation beginning in September 2005. Schafer stated that other witnesses were available to interview; however, the AG’s office closed the investigation when the three arrests were effected in 2006. The decision to not continue interviewing witnesses was not due to the witnesses being unavailable. DA Cannizzaro testified that he has no evidence suggesting that any of the witnesses are unavailable or that the potential defendants have left the jurisdiction of the courts.

RnA tenth consideration is the spoliation of evidence. Assistant AG Schafer testified at the initial trial that the AG’s office made copies of everything, including images of the computers, computer documents, and charts returned to Tenet-Memorial and LifeCare. The AG’s office turned over a complete copy of its investigative file to the Orleans Parish District Attorney’s office. DA Cannizzaro testified that none of the investigative file had been lost or spoiled, and that the “file” consists of three large boxes, which he keeps in his personal office for ready access. AG Caldwell indicated that his office has kept its own file; the contents include copies and some original documents.

The twelfth and final query is the reasonable likelihood that additional witnesses might be willing to come forward with the passage of time. According to DA Cannizzaro, the majority of evidence will come from hospital personnel and scientific evidence. In addition, there are numerous civil cases pending as a result of the events at Tenet-Memorial, and “[fit’s very possible” evidence could arise as the result of these eases. For example, Dr. Cook willingly spoke to a New York Times reporter, resulting in the 2009 article previously referenced. DA Cannizzaro stated, “I cannot predict the future.” However, informants will come forward and provide information to prosecutorial bodies. People on the streets have offered Cannizzaro tips. Although rare, coroners have changed the classification of a cause of death. DA Cannizzaro also noted that a reasonable expectation of prosecution is based on current scientific technology.

DA Cannizzaro and AG Caldwell raised additional concerns. DA Cannizzaro said the release of criminal investigative files sets a “horrible 12iprecedent,” providing the potential for the abuse of witnesses and the fear of retaliation. AG Caldwell cautioned that release of the criminal investigative file in this instance may “turn the judiciary into a public records request initiative” every time a grand jury returns a no true bill. Pursuant to La.Rev.Stat. Ann. § 44:3 F, the legislature has set forth a means whereby an investigative file can be obtained after the passage often years from “the date of death of a person by other than natural causes.” This right is not extended to the public at large but, rather, is limited to “certain members of the public whose right to access the information predominates; namely, the [immediate] family of the decedent.” Investigation, 15 So.3d at 993.

Appellees focus on whether it is reasonably anticipated that criminal litigation will be brought against the three medical professionals arrested in July 2006. However, the Louisiana Supreme Court instructs that the exemption applies if it is reasonably anticipated that “criminal litigation will be brought against some potential criminal defendant who was part of the investigation.” Investigation, 15 So.3d at 991 (emphasis supplied). On remand, extensive evidence was offered to establish that criminal litigation can be reasonably anticipated against some potential criminal defendant. Contra Louisiana Capital Assistance, 54 So.3d at 180 (“only evidence offered” was testimony that it is the policy of the district attorney that criminal litigation could be reasonably anticipated in any case where the litigation period has not legally prescribed). We find that the custodian has met its burden of proving that the file is not subject to inspection, copying, or reproduction due to the exemption set forth in La.Rev.Stat. Ann. § 44:3 A(l). See La.Rev.Stat. Ann. § 44:31(3).

|22The supreme court already has determined that “[everything in the file can be said to pertain to criminal litigation.” Investigation, 15 So.3d at 991. Because we conclude that criminal litigation can be reasonably anticipated in this case, “then the entire file is covered by the exemption and is not required to be disclosed under the Public Records Law at this time.” See Investigation, 07-1853 (7/1/09); 15 So.3d at 991. Accordingly, we pretermit discussion of the remaining issues. See Investigation, 15 So.3d at 993 (“finding that criminal litigation is reasonably anticipated would resolve the case”).

CONCLUSION

For the above stated reasons, the district court’s judgment is reversed and set aside, and judgment is rendered in favor of Appellants, declaring the entire investigative file exempt from disclosure at this time under the Public Records Law, specifically La.Rev.Stat. Ann. § 44:3 A(l). The Tirnes-Pieayune, LLC and Cable News Network’s answer to the appeal is denied. Costs of this proceeding are assessed to the Times-Picayune, LLC and Cable News Network.

REVERSED AND RENDERED. ANSWER TO APPEAL DENIED.

WELCH, J., dissents and assigns reasons.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

|/While there is a strong public policy and fundamental right of access to public records, the Louisiana legislature has carved out an exception for “[rjecords pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated.” LSA-R.S. 44:3 A(l). The Louisiana Supreme Court has set forth a non-exclusive list of objective factors to be considered in determining whether criminal litigation is reasonably anticipated. See A Matter of Investigation, 07-1853, pp. 30-31 (La.7/1/09), 15 So.3d 972, 992. Applying these factors, and given that there is a realistic expectation of the discovery of new evidence arising from the ongoing civil litigation involving the events at Tenet-Memorial, I cannot disagree with the majority’s finding that criminal litigation is reasonably anticipated. Therefore, considering the current posture of this case, I concur with the result reached by the majority:

WELCH, J.,

dissenting.

LI respectfully disagree with the majority opinion in this case. The majority opinion, utilizing de novo review, concludes that the custodian of the records at issue met its burden of proving that the records were not subject to inspection, copying, or reproduction due to the exemption set forth in La. R.S. 44:3(A)(1). However, the trial court made a factual determination that criminal litigation was not reasonably anticipated for purposes of La. R.S. 44:3(A)(1), as interpreted in A Matter Under Investigation, 2007-1853 (La.7/1/09), 15 So.3d 972, and thus concluded that the exemption contained in La. R.S. 44:3(A)(1) was not applicable to this case. After reviewing the record of this matter under the appropriate standard of review, ie., manifest error, the trial court’s factual finding that criminal litigation was not reasonably anticipated is reasonably supported by the record and is not clearly wrong. Therefore, the judgment of the trial court should be affirmed.

Thus, I respectfully dissent.

      . Caldwell became the Louisiana Attorney General in January 2008. Cannizzaro became the Orleans Parish District Attorney in November 2008.

      . Having failed to timely file an appellant brief, Tenet-Memorial’s appeal was dismissed on April 4, 2011.

      . Appellees refer to the testimony of Assistant AG Schafer, who headed the AG's 2005 post-Katrina investigation. Schafer testified that in the past twelve months, no one from the DA’s office had contacted him to discuss the investigation. However, Schafer worked in Medicaid fraud, and once the decision was made to arrest the three health care professionals for second degree murder, Schafer was no longer involved in the case. Schafer acknowledged that he has no authority to prosecute a capital case and that he would not necessarily be privy to communications between the DA and the AG.

      . The prior AG, Charles Foti, did not assert the La.Rev.Stat. Ann. § 44:3 A(l) exemption.

      . District Attorney Cannizzaro testified that given the ongoing civil litigation, it was very possible that additional evidence could arise. He further testified that the majority of evidence in this case would come from the testimony of hospital personnel.


author: DREW, J.

text:
    Curtis D. LEE, Plaintiff-Appellee v. SAFEWAY INSURANCE COMPANY OF LOUISIANA and Henry Lee, Jr., Defendant-Appellant.
    No. 46,716-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2011.

      Tracy L. Oakley, Ruston, LA, for Appellants.
    Edward Larvadain, III, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

| Safeway Insurance Company of Louisiana and’Henry Lee, Jr. (“Henry Lee, Jr.”), defendants, appeal a judgment awarding plaintiff, Curtis D. Lee (“Lee”), special damages of $1,956.00 and general damages of $7,500.00 for injuries sustained or preexisting injuries aggravated in a collision on November 19, 2008. Because the record contains insufficient evidence to establish the connection between plaintiffs alleged injuries and this wreck, the judgment of the trial court is reversed and the plaintiffs action is dismissed with prejudice.

A little over two months before the collision which is the subject of this litigation, Lee was in another auto accident on September 15, 2008. The first crash occurred when Lee was traveling about 60 mph behind a U-Haul van which suddenly pulled to the right revealing a car stopped in the road. Although he slammed on his brakes, Lee collided with the stopped car and another vehicle then hit him. He could not change lanes because the other lanes were occupied. Lee was treated and released at the emergency room of Schum-pert Hospital.

In the second accident (November 19, 2008) from which Lee is seeking damages in this litigation, Lee stated that he was a guest passenger in his own car being driven with his permission by his cousin, Henry Lee, Jr., who failed to yield at a yield sign and collided with a car driven by Nolan S. Taylor. The parties stipulated to liability. Stating his vehicle was totaled in the collision, Lee asserted that in the wreck, he sustained lumbar and cervical strain, lower back pain, and general body aches and bruises.

IgLee sought care from two different chiropractors, each of whom treated Lee apparently without being aware Lee had been in another accident for which he was receiving therapy from another chiropractor. The following timeline sets out the accidents and the treatment related to each. The items relevant to the second accident are indicated in italics. Dates on which Lee was treated by both chiropractors are shown in boldfaced type and underlined.

September 15, 2008 First accident
October 10, 2008 First appointment with Dr. Grady Michael Stimits for first accident, at which he received a detailed exam, Hot and Cold Packs, and Mechanical Traction
October 13, 2008 Treatment by Dr. Stimits, including Chiropractic Manipulative Treatment (“CMT”) 8-4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
October 20, 2008 Treatment by Dr. Stimits, including CMT 3-4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
October 27, 2008 Treatment by Dr. Stimits, including CMT 3-4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
November 3, 2008 Treatment by Dr. Stimits, including CMT 3^4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
November 5, 2008 Treatment by Dr. Stimits, including CMT 3-4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
November 10, 2008 Treatment by Dr. Stimits, including CMT 3-4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
IgNovember 17, 2008 Treatment by Dr. Stimits, including CMT 3-4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
November 19, 2008 Second accident
November 24, 2008 Re-exam by Dr. Stimits and treatment including Mechanical Traction and Hot and Cold Packs
December 1, 2008 Treatment by Dr. Stimits, including CMT 3^4 Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
December 8, 2008 Treatment by Dr. Stimits, including CMT 2>-A Region, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
December 8, 2008 First appointment with Dr. John Lawrence for second accident
December 12, 2008 Treatment by Dr. Lawrence, including CMT 3-4 Regions, Hot Pack, Mechanical Traction, Electrical Stimulation, and Hydrotherapy
December 15, 2008 Treatment by Dr. Stimits, including CMT 3^4 Regions, Mechanical Traction, Hot and Cold Packs, and Myofacial Release
December IS, 2008 Treatment by Dr. Lawrence, including CMT 3-4- Regions, Hot Pack, Mechanical Traction, Electrical Stimulation, and Hydrotherapy
December 22, 2008 Treatment by Dr. Lawrence, including CMT 3-4 Regions, Mechanical Traction, Electrical Stimulation, and Hydrotherapy
December 29, 2008 Treatment by Dr. Stimits, including CMT 3-4 Region, Mechanical Traction, Hot and Cold Packs and Myofacial Release
December 29, 2008 Treatment by Dr. Lawrence, including CMT 3-4 Regions, Mechanical Traction, Electrical Stimulation, and Hydrotherapy
j^January 5, 2009 Treatment by Dr. Stimits, including re-exam, Mechanical Traction, and Hot and Cold Packs
January 5, 2009 Treatment by Dr. Lawrence, including CMT 3-4 Regions, Mechanical Traction, Electrical Stimulation, and Hydrotherapy
January 12, 2009 Treatment by Dr. Lawrence, including CMT 3-4 Regions, Mechanical Traction, Electrical Stimulation, and Hydrotherapy
January 20, 2009 Last appointment with Dr. Stimits, who did re-exam
January 21, 2009 Treatment by Dr. Lawrence, including CMT 3-4 Regions, Mechanical Traction, and Hydrotherapy
January 26, 2009 Last appointment with Dr. Lawrence with treatment including CMT 3-4 Regions, Mechanical Traction, and Hydrotherapy

TRIAL TESTIMONY

The parties stipulated that Dr. Grady Michael Stimits, a chiropractor called by the defense, was an expert. In brief, the plaintiff stated that the only witnesses at trial were himself and Dr. John Lawrence. Actually, the only trial witnesses were the plaintiff and Dr. Stimits. The exhibits were the accident report, the medical records from both chiropractors, and the insurance policy submitted as a joint exhibit. Although Lee’s deposition was referenced in his cross-examination, that deposition was not filed into evidence.

Dr. Stimits testified that:

• he treated Lee for injuries sustained in the September 15, 2008, wreck;
• the course of treatment ran from October 10, 2008, until January 20, 2009;
|s* he was unaware of the November 19, 2008, accident;
• he could not testify as to what Lee may or may not have told his staff, although he thought it likely his staff would have mentioned a second accident;
• it was important that he be informed about a second accident because of issues involving injuries, treatment, and litigation;
• he did not know that Lee was simultaneously being treated by another doctor;
• Lee initially complained of pain in his neck and back, weakness and pain in his right shoulder, and numbness in his right arm;
• during a reevaluation examination on November 24, 2008, Lee reported pain on the right side where the pelvis meets the spine, along with neck and back pain, and right arm numbness;
• on that date, there was improvement in ranges of motion and decreases in spasms and numbness;
• though Lee had reported pain in all ranges of motion in the initial exam on October 10, he had pain in only one range of neck motion on November 24;
• the initial evaluation showed spasms and tenderness all the way down his back;
• by November 24, the tenderness and spasms were only on the right side of his back;
• by January 5, 2009, Lee’s range of motion was not quite normal, but pretty close, on his neck and back, with some mild numbness in the right arm and pain in the neck;
• Lee reported no pain, and was normal neurologically on January 20, 2009;
• when checked for spasms on that date, there was no abnormal tension or tightness and both his neck and back were pain free;
• the doctor found no disability and a good prognosis;
|r* too many chiropractic adjustments “can actually hard (sic) the patient”;
• thus it was absolutely vital that patients be truthful with the chiropractor; and
• not knowing another chiropractor is performing adjustments on a patient can create a lot of issues.

On cross-examination, Dr. Stimits stated he was certain a reference to the right knee in the records was an error because all other references were to the left knee. At the November 24 examination (just days following the November 19 wreck), Lee had signs and symptoms of injury. On January 5, he still had mild numbness

in the right arm and off-and-on pains in the neck and back, while reporting his left knee was okay and he was sleeping much better. The doctor recommended Lee be treated twice a week but he said his work schedule would allow only once a week.

Lee’s final visit was January 20, 2009, at which time Dr. Stimits thought it unlikely that he was pain free as the doctor had observed spasms on January 5. Lee said he needed to go and Dr. Stimits respected that request, which is common with his patients who decide they can no longer continue treatment. The chiropractor suspected that Lee still had some pain and discomfort on January 20.

Regarding the November 19 accident, Lee testified that:

• he received a knot on his head;
• the right side of his body hit the door; and
• his injuries included headache, pain in his right arm, lower right back, knee and lower leg, as well as numbness from his right shoulder to his elbow.

|7Lee’s attorney sent him to a chiropractor, Dr. John Lawrence, whom he first saw on December 8, 2008, and last saw on January 26, 2009. Lee asked the doctor to release him because he had no transportation to continue treatment and work. He still had discomfort at the January 18, 2011, trial.

Lee testified that as a result of the November 19 accident, he was no longer able to play baseball and that his sleep was restless due to arm and leg pain. He also described being nervous with people close by as a result of the November 19 wreck. Because of these injuries, he also said he was not able to continue his job as a caretaker for an elderly couple, which involved lifting the man who was wheelchair bound. Never having been arrested, Lee testified that his only legal trouble was having his license suspended for an unpaid traffic ticket when he was 15.

Lee acknowledged on cross examination that in December 2008 and January 2009 he was working two jobs (caretaker of the elderly and security guard at Villagio) and stated at his deposition that he discontinued medical treatment because he had to go to work. Lee did not mention his transportation problems at the deposition. He agreed that he was being treated by two different chiropractors, Dr. Stimits (for the September accident) and Dr. Lawrence (for the November accident). Additionally, Lee said that the injuries for which he sought to recover in this action were the same injuries for which Dr. Stim-its treated him because Lee contended his injuries from the first accident were aggravated by the second collision.

At his deposition, Lee stated, “I don’t think I told him (Dr. Stimits about the second accident).” When questioned about whether he informed | sDr. Lawrence about his first accident, Lee’s response was unclear. When asked to explain why he did not think it was important to tell each doctor he was being treated by the other, Lee stated, “Naw (inaudible) two separate accidents (inaudible).”

On redirect examination, Lee stated in response to an inquiry about whether he informed Dr. Stimits about the second collision, “Yeah. I think I told him. I am not for sure.... I could have told the secretary.”

With a referral from his attorney, Lee first saw Dr. Lawrence on December 8, 2008, and received extensive examination and diagnostic testing. Dr. Lawrence’s initial report, right after the November accident, noted complaints of neck and low back pain along with right shoulder and arm pain. At the December 8, 2008, office visit, Lee’s reported symptoms were:

• dull throbbing bilateral headaches;
• sharp burning, cramping, stinging bilateral neck pain;
• dull spastic, throbbing constricting pain on the right side of his lower back;
• sharp, shooting, stinging pain in right shoulder;
• sharp, shooting, cramping, stinging pain in upper right arm;
• weakness, listlessness, lack of energy; and
• inability to sleep due to pain.

Dr. Lawrence’s initial report contained the following very enlightening information:

HISTORY:
I have determined that Mr. Lee’s history has not contributed to his present condition. Mr. Lee denies any prior symptoms, 19injuries or accidents similar to those described in this report. Therefore, it is my opinion, based on medical probability, that this patient’s condition, as outlined in this report, is the direct result of the injuries sustained on November 19, 2008, as described by the patient.
Social History:
The patient’s social history is non-contributory in that it does not contain any information that would have contributed to his present complaints. The patients’s family history in non-contributory in that it does not contain any information that would have contributed to his present complaints.

Noting that he expected Lee to experience favorable treatment results, Dr. Lawrence diagnosed Lee with whiplash injury, multiple subluxations (term generally meaning a misalignment) of cervical, thoracic, and lumbosacral spine; headache, myalgia, lumbosacral sprain, and sleep disturbances.

On a December 12, 2008, office visit, Dr. Lawrence reported that Lee was progressing as expected and experienced some improvement. On December 29, 2008, Dr. Lawrence noted that Lee was again progressing as expected and showed moderate improvement from the previous visit. The identical assessment was made on January 5, 2009. On January 12, 2009, Dr. Lawrence observed that Lee’s progress was moving along as expected and he had experienced moderate improvement. On January 20, 2009, the chiropractor observed that Lee was progressing as expected and showed marked improvement. In all the foregoing reports, Dr. Lawrence stated that Lee was receiving medically necessary therapeutic care and had not yet reached MMI (“maximum medical improvement”).

On January 26, 2009, Dr. Lawrence found somewhat restricted range of motion in the cervical spine along with subluxa-tions and slight pain on |10palpation of his cervical and lumbar spine. The assessment was that Lee was progressing as expected, had not reached MMI, but showed a marked improvement since his last visit. The doctor recommended chiropractic adjustments once a week for two weeks. That was the last visit Lee made to Dr. Lawrence.

REASONS FOR JUDGMENT

After hearing the testimony, the trial court found Lee to be a “real credible” witness who sustained the injuries alleged. Additionally, the trial court concluded that the second accident aggravated some of the old injuries and caused a couple of new injuries. Other factors cited were plaintiffs inability to play baseball and the pain suffered. The judgment granted plaintiff special damages of $1,956.00 and general damages of $7,500.00.

DISCUSSION

It is axiomatic that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” See Rosell v. ESCO, 549 So.2d 840 (La.1989). In Welch v. Willis-Knighton Pierremont, 45,554 (La.App.2d Cir.11/17/10), 56 So.3d 242, writs denied, 2011-0075 (La.2/25/11), 58 So.3d 457, and 2011-0109 (La.2/25/11), 58 So.3d 459, this court explained that to reverse a trial court, the appellate court must find that a reasonable factual basis does not exist in the record for the finding and that the determination is clearly wrong. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. If the documentary or objective evidence so contradicts the witness’s testimony, or the testimony is so internally inconsistent or implausible on its Inface that a reasonable factfinder would not credit the testimony, the court of appeal may find manifest error even where the finding is purportedly based on a credibility determination. Absent a finding of clear error and if the factfinder’s conclusion is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Welch v. Willis-Knighton Pierremont, supra.

In a personal injury action seeking damages, the plaintiff has the burden of proving a causal relationship between the accident and any alleged injuries. The plaintiff must prove causation by a preponderance of the evidence. That burden is satisfied when the plaintiff proves through medical and lay testimony that it was more probable than not that the injury was caused by the accident. Bradshaw v. Brookshire Grocery Co., 38,960 (La.App.2d Cir.10/27/04), 886 So.2d 628.

Whether the accident caused the plaintiffs injuries is a factual question which should not be reversed on appeal absent manifest error. Reversal is warranted only if the appellate court finds that a reasonable factual basis for the trial court’s finding does not exist in the record and that the finding is clearly wrong on the record. Bradshaw, supra.

.The trial court found Lee to be a credible witness, and we note that Dr. Lawrence’s tests for malingering were negative. However, we respectfully find that a reasonable factual basis does not exist in this record to support the conclusion that Lee’s injuries were sustained in or worsened by the November 19, 2008, mishap. The medical evidence either fails to support or simply contradicts Lee’s assertion that his injuries were related to the second accident. The trial court’s decision was clearly wrong.

112Lee was poorly served by the failure to provide the chiropractors with an accurate history of his dual accidents. Without that information, Dr. Lawrence’s opinion that Lee’s injuries were a direct result of the November 19, 2008, wreck is fatally flawed, since those injuries were substantially present prior to the accident.

Lee’s testimony that his injuries were aggravated by the November 19, 2008, accident is belied by the fact that Dr. Stimits noted improvement in Lee’s condition on his November 24, 2008, visit. Lee’s statements that his injuries were worsened by the second wreck are not supported by the medical evidence in the record. Simply put, Lee failed to prove he suffered new injuries or aggravations of preexisting conditions in the November collision. On this record, a decision to the contrary is manifestly erroneous.

DECREE

The judgment of the trial court is reversed, and plaintiffs action is dismissed with prejudice at his costs.

REVERSED.

      . Upon flexion and extension. The doctor also noted that on November 10, 2008, the patient had a tender right side joint, referring to the right sacroiliac joint.


author: ROLAND L. BELSOME, Judge. TOBIAS, J.,

text:
    Peter A. RUPP v. J. Thomas “Tom” SCHEDLER, in his Official Capacity as the Louisiana Secretary of State, Velma Bourg, in her Official Capacity as the Registrar of Voters for St. Bernard Parish, Ray A. Lauga, Jr., in his Official Capacity, as a Candidate for St. Bernard Parish Council, District “A”.
    No. 2011-CA-1716.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2011.

      Kurt C. Garcia, Garcia Law Firm, Marion D. Floyd, Kenner, LA, for Plaintiff/Appellant/Peter A. Rupp.
    James D. “Buddy” Caldwell, Attorney General, William P. Bryan, III, Erin C. Day, Assistant Attorneys General, Department of Justice, Civil Division, Baton Rouge, LA, for Velma Bourg, Registrar of Voters, St. Bernard Parish.
    William E. Crawford, Jr., Louisiana Department of State, Baton Rouge, LA, for J. Thomas “Tom” Schedler, Louisiana Secretary of State.
    Richard A. Tonry, Michael C. Ginart, Jr., Cullen A. Tonry, Kim C. Jones, Joyce D. Young, Law Office of Tonry <& Ginart, LLC, Chalmette, LA, for Defendant/Ap-pellee/Ray A. Lauga, Jr.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

11 Appellant, Peter Rupp, an unsuccessful candidate for the St. Bernard Parish Council District “A” requests review of the trial court’s decision finding the appellant’s voter challenges were untimely pursuant to the Election Code and dismissing appellant’s Petition to Contest Election. For the following reasons we affirm.

The issue that must be determined by this Court is whether there were timely challenges made in accordance with the mandates of the Election Code. The Election Code, Title 18 of the Louisiana Revised Statutes provides the exclusive procedures by which elections may be challenged. Mr. Rupp’s sole basis for contesting the election is the qualifications of the voters as set forth in La. R.S. 18:565(A) The forty-four voters that Mr. Rupp contended were unqualified to vote in his race all voted during the early election period of the general election. The Election Code specifically addresses this type of challenge and the procedure |2to be followed when pursuing such a claim. A candidate seeking to challenge an absentee by mail or early voting ballot, may do so “by personally filing his written challenge with the registrar no later than the fourth day before the election for which the ballot is challenged.” La. R.S. 18:1315(A)(1). The challenge must be presented on the proper form which can be obtained from the Secretary of State’s office. Id. The statute further specifies that the form include:

(a) The ground, specified in R.S. 18:565(A), on which the challenge is made.
(b) The election involved.
(c) The specific reason for which the challenge is made.
(d) The name, address, and telephone number, if any, of the person challenging the ballot, all of which shall be written by the person challenging the vote.

La. R.S. 18:1315(A)(2).

At trial, Mr. Rupp testified that he did acquire and submit the form mandated by La R.S. 18:1315, but not until November 21, 2011. Prior to that time he asserts that on two separate occasions he attempted to challenge the qualifications of the voters with the registrar of voters, Velma Bourg. He claims he presented hand written notes with a list of names to the registrar of voters, which he claims Ms. Bourg rejected. This is disputed by the testimony of Ms. Bourg, who stated she had not seen the hand written documents. She did acknowledge receiving an official challenge form on November 21, 2011. At that time, Ms. Bourg advised Mr. Rupp that the form should have been in her office four days prior to the election.

Under similar circumstances, courts have found that a candidate’s failure to follow the mandated procedure of the Election Code to raise concerns regarding voting prior to or during the election resulted in a waiver. See, Lipsey v. Dardenne, 07-1487 (La.App. 3 Cir. 11/29/07), 970 So.2d 1237; Davis v. Malveaux, 06-2096 (La.App. 1 Cir. 10/24/06), 945 So.2d 70. Additionally, La. R.S. 18:1434 states that:

An objection to the qualifications of a voter, ..., or to an irregularity in the conduct of the election, which with the exercise of due diligence could have been raised by a challenge of the voter or objections at the polls to the procedure, is deemed waived.

La. R.S. 18:1434.

After hearing the testimony and reviewing the evidence, the trial court found the challenges were registered on November 21, 2011. These challenges were found to be untimely and thus waived. This is a factual finding that will not be disturbed unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989).

We find no error on the part of the trial court and therefore affirm.

AFFIRMED

TOBIAS, J., concurs in the result.

TOBIAS, J.,

concurs in the result.

|¶1 respectfully concur in the result because I do not find that the majority has gone far enough to address all relevant issues in this case.

La. Const, art. I, § 10 is not superseded by La. Const, art. XI, § l, and, accordingly, as long as an individual is a citizen of Louisiana and eighteen years of [2age, an individual citizen must be allowed to determine where he or she should vote because he or she has a meaningful relationship to the place where he or she is registered to vote.

The concept of “permanent registration of voters” in La. Const, art. XI, § 1 is a term of art. The “permanent registration of voters” was originally set forth in the former La. R.S. 18:281-261; following the adoption of the 1974 constitution, many of those statutes were spread throughout various sections of the mandated new Louisiana Election Code, and others were repealed.

Taking into account La. R.S. 18:198 G, 197, 565, 1313,1315, and 1432, the evidence in this case, including the proffered evidence, does not demonstrate that the voters in question were disqualified from voting in the St. Bernard Parish election. Putting aside the timeliness of Mr. Rupp’s objections as correctly analyzed by the majority, because someone filed for a homestead exemption in a parish other than St. Bernard on a specific date does not prove that the person did not thereafter change his domicile and residence back to St. Bernard Parish by returning to St. Bernard Parish after the date of filing for the homestead exemption. Moreover, I am not convinced that La. R.S. 18:101 is not in part irreconcilably in conflict with La. Const, art. I, § 10 (the constitutional provision undermines and/or supersedes the statutory provision). Further, La. R.S. 18:101 does not stand for the proposition that Mr. Rupp wins and is entitled to the relief he seeks if he can show that a sufficient number of voters had a domicile in another parish because those |spersons filed for a homestead exemption in another parish. (After all, we do not know whether those alleged non-domiciliaries voted for or against Mr. Rupp.)

      . La. R.S. 18:565(A) — Grounds for challenge. A commissioner, watcher, or qualified voter may challenge a person applying to vote in a primary or general election on the ground that:
      (1)The applicant is not qualified to vote in the election,
      (2) The applicant is not qualified to vote in the precinct, or
      (3) The applicant is not the person whose name is shown on the precinct register.

      . Section 10 reads:
      (A) Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony.
      (B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
      (1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
      (2) A person actually under an order of imprisonment for conviction of a felony.
      (C) Exception. Notwithstanding the provisions of Paragraph (B) of this Section, a person who desires to qualify as a candidate for or hold an elective office, who has been convicted of a felony and who has served his sentence, but has not been pardoned for such felony, shall be permitted to qualify as a candidate for or hold such office if the date of his qualifying for such office is more than fifteen years after the date of the completion of his original sentence. [Emphasis supplied.]

      . Section 1 states: "The legislature shall adopt an election code which shall provide for permanent registration of voters and for the conduct of all elections.”

      . See Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 96, 102 So.2d 755 767 (1958), and the concordance tables for specific placement of the relevant sections of the former law in the Louisiana Election Code.