text:
    STATE of Louisiana v. Ricky CURE.
    No. 2011-K-2238.
    Supreme Court of Louisiana.
    July 2, 2012.
    James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Andrew Pickett, Assistant District Attorney, for Applicant.
    Mary Constance Hanes, New Orleans, LA, for Respondent.
   PER CURIAM.

hThe state charged defendant by bill of information with possession of heroin in violation of La.R.S. 40:966. After the trial court denied his motion to suppress the evidence, defendant entered a plea of guilty as charged, reserving his right to seek review of the trial court’s adverse ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced him to four years imprisonment at hard labor, suspended, with four years of active probation. On appeal, the Fourth Circuit reversed defendant’s conviction and sentence on grounds that the trial court erred in denying the motion to suppress. State v. Cure, 11-0109 (La.App. 4th Cir. 10/05/11), 84 So.3d 592 (McKay, J, dissenting without reasons). We granted the state’s application to review the decision below and reverse for reasons that follow.

The testimony of Detective Andrew Roc-caforte, an experienced narcotics officer in the New Orleans Police Department and the only witness to appear at the hearing on the motion to suppress, established the following. On March 5, 2011, Roccaforte conducted an undercover surveillance in the parking lot of a gas station and fried chicken restaurant on Crowder Boulevard in New Orleans. He was in plain clothes and driving an unmarked car. The officer had become familiar with the area from numerous prior narcotics investigations in which he had observed “a lot of drug meets between drug dealers and drug users that take place in the ^parking lot, drug usage that takes place, as well, in the parking lot....” At approximately 3:30 p.m., a gray Toyota Camry, driven by Christopher Dauth, pulled into the spot next to Roccaforte in the parking lot. Defendant sat next to Dauth in the front passenger seat. The two men did not immediately exit the vehicle but seemed preoccupied with something in their laps, as they were looking downward. Shortly thereafter, defendant exited the car carrying in his hand an empty transparent plastic cup and went into the restaurant. He emerged moments later still carrying the cup, now filled with steaming water, and walked back to the Camry parked next to the officer.

Roccaforte testified defendant’s conduct immediately raised his suspicion because he knew that heroin users need water to help liquefy the heroin. His suspicions intensified after defendant got back in the car and noticed the officer looking at him. At that point, defendant “got a little nervous” and the driver of the Camry relocated the car to a parking spot on the opposite side of the lot. Roccaforte concluded the men were there to use narcotics and contacted Detective Christy Bagneris, who was in the area driving an unmarked vehicle. When Bagneris arrived on the scene she parked next to the Camry on the driver’s side. Bagneris also observed the driver and defendant looking down at something in their laps, but she could not see what held their attention. Bagneris walked over to the driver’s side of the Camry, instructed Dauth to exit the Camry and for both men to place their hands up on the vehicle. She then opened the driver’s door of the car and observed that Dauth had on his lap a blue notebook with a tan powder scattered on top. Bagneris ordered Dauth to put the notebook down and then to step out of the vehicle. At the same time, Detective Roccaforte, who had driven across the lot and parked on the other side of the Camry, approached the vehicle on the passenger side. He observed that defendant had complied with Bagneris’s | -¡order by placing his hands on the dashboard of the car. However, defendant had his right hand clenched. Roc-caforte ordered him to open his hand and when defendant complied, he placed two clear plastic bags containing tan powder on the dashboard. Roccaforte removed defendant from the, car, secured him in handcuffs, and placed both men under arrest. In the car, the detectives found a partially cut can with burn marks on it, which Roc-caforte explained was commonly used to “cook up” heroin. They also found a liquid filled syringe and a needle. The field test on the tan power was positive for heroin.

At the close of the hearing, the trial court denied defendant’s motion to suppress. The court observed that “[i]f the officer is walking up to the car and they’re in the vehicle, he can certainly ask them to put their hands out where they can see them.... so when the defendant opened his hand it revealed the drugs that the officer suspected may have been going on in the vehicle from the beginning.” Although it disagreed with the lower court’s analysis, the Fourth Circuit panel acknowledged Det. Roccaforte had reasonable suspicion to conduct an investigatory stop of the vehicle and its occupants. Cure, 11-0109 at 6, 84 So.3d 592 (“Not surprisingly, an individual’s presence in a high crime area, coupled with nervousness, startled behavior, flight, or suspicious actions upon the approach of officers is sufficient to justify an investigatory stop.”) (citations omitted). The majority further acknowledged the officers “had the right to order the defendants out of the vehicle.” Id., 11-0109 at 8, 84 So.3d 592 (citing State v. Kelley, 05-1905, p. 6 (La.7/10/06), 934 So.2d 51, 55) (“Given an objective basis for detaining the defendant bidefly to determine why he was ‘just there,’ the officers acted reasonably by requesting that he step from the car, even in the absence of any particularized suspicion that he was armed and dangerous.”) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977)). However, the majority | ¿concluded that “Detective Bagneris did not have the right to open the vehicle’s door,” Cure, 11-0109 at 8, 84 So.3d 592, and thereby ruled out the plain view and inevitable discovery doctrines as rationale for justifying seizure of the evidence, the former because the notebook holding the heroin came into view only after the officer opened the door, and the latter because the state had failed to prove by a preponderance of the evidence that the detectives would have inevitably discovered the heroin had Bagneris not opened the door on her own. Cure, 11-0109 at 10-12, 84 So.3d 592. The majority further concluded that Detective Rocca-forte did not have a reasonable basis for ordering defendant to open his hand because the officer had failed to articulate any concern for his safety or that of Detective Bagneris. Id., 11-0109 at 13, 84 So.3d 592. The majority thus determined that all of the evidence seized by the officers on the scene was inadmissible at trial.

We agree with the court of appeal that Detective Roccaforte had reasonable suspicion to initiate an investigatory stop of the vehicle and its occupants. State v. Sylvester, 01-0607, p. 5 (La.9/20/02), 826 So.2d 1106, 1109 (“In determining whether police officers have a ‘particularized and objective basis’ for conducting an investigatory stop, reviewing courts ‘must look at the totality of the circumstances of each case,’ a process which ‘allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ”) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (other internal quotation marks and citation omitted)). We further agree that as part of the stop, Detectives Bag-neris and Roccaforte had the authority to order both the driver and the passenger to step out of the car, even assuming that they lacked any particularized and articu-lable basis for believing that the occupants posed a risk to their safety. See Mimms, 434 U.S. at 110-11, 98 |aS.Ct. at 333 (“[W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.... Against this important interest, we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis.”); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997) (“mile there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out [during a routine traffic stop], the additional intrusion on the passenger [by extending the rule of Mimms to passengers as well as drivers] is minimal.”); see also 4 Warren R. La-Fave, Search and Seizure, § 9.2(d) (4th ed. 2004) (“[Ordering a suspect out of a car, which the Supreme Court has approved even with respect to a routine traffic stop, is a generally permissible tactic in connection with Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] stops of vehicles.”) (citing Mimms; footnotes omitted). Mimms and Wilson are avowedly bright-line rules, see Wilson, 519 U.S. at 413, n. 1, 117 S.Ct. at 885 (“[T]hat we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to passengers as well.”), and they reflect the premise that “ ‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.’” Wilson, 519 U.S. at 414, 117 S.Ct. at 886 (quoting Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)) (footnote omitted).

Given Detective Bagneris’s lawful authority to order the occupants out of the car, we fail to see how her act in opening the door of the Camry, thereby asserting unquestioned command of the situation, even marginally increased the Rdegree of intrusiveness on the privacy interests of the driver occasioned by the officer’s direct order to exit the vehicle. Detective Bag-neris did not attempt to enter the vehicle physically, and one way or the other, the door would open, thereby exposing the interior of the vehicle, including what the driver Dauth had on his lap. Cf. New York v. Class, 475 U.S. 106, 117-18, 106 S.Ct. 960, 968, 89 L.Ed.2d 81 (1986) (police officer’s entry into vehicle following routine traffic stop to remove papers blocking view of the VIN on left doorjamb satisfied all three factors involved in Mimms and Summers: “the safety of the officers was served by the governmental intrusion; the intrusion was minimal; and the search stemmed from some probable cause focusing suspicion on the individual affected by the search.”).

Detective Bagneris thereby acquired probable cause to arrest both men for possession of the heroin powder strewn on the blue notebook. Thus, whether Rocea-forte ordered defendant to open his clenched fist before or after Bagneris opened the car door, recovery of the two papers of heroin in defendant’s possession, as well as the narcotics paraphernalia in the vehicle, would have inevitably followed as an incident of a lawful arrest. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1723, 173 L.E.2d 485 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”); State v. Lee, 05-2098, p. 24 (La.1/16/08), 976 So.2d 109, 127-28 (“‘Circumstances justifying application of the “inevitable discovery” rule are most likely to be present if ... the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have |7occurred later.’ ”) (quoting 6 Warren R. LaFave, Search and Seizure, § 11.4, pp. 278-79 (4th ed.2004)).

Moreover, given the “inordinate risk confronting an officer as he approaches a person seated in an automobile,” Mimms, 434 U.S. at 110, 98 S.Ct. at 333, and given also that “‘[cjertainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties’ ” id. (quoting Terry, 392 U.S. at 23, 88 S.Ct. at 1881), we agree with the trial judge that apart from any search-incident rationale, it was objectively reasonable for Detective Roccaforte to order defendant’s hand unclenched to protect not only himself during the investigation of a narcotics offense but also Detective Bagneris, who was preoccupied with the driver of the Camry. The relevant question with respect to self-protective searches conducted by the police “is not whether the police officer subjectively believes he is in danger, or whether he articulates that subjective belief in his testimony at a suppression hearing,” but whether “a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of other [persons] was in danger.” State v. Boyer, 07-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471 (citations omitted); cf. Sylvester, 01-0607 at 6, 826 So.2d at 1109 (“[T]he officer’s concern for his own protection and that of his partner justified ordering defendant to open his fist.”) (citing United States v. Moore, 235 F.3d 700, 704 (1st Cir.2000) (“Weapons such as knives and razors can ... be concealed inside a closed fist.”)). Thus, even assuming that Detective Bagneris did not act reasonably when she opened the door of the Camry, the lawful recovery of all of the evidence in the vehicle would have inevitably occurred once defendant opened his hand at Detective Roccaforte’s order and dropped the two papers of heroin onto the dashboard of the car.

| ^Accordingly, the decision below is reversed, defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for purposes of execution of sentence.


source: Caselaw Access Project

author: PER CURIAM. JOHNSON, J.,

license: Public Domain

text:
    STATE in the Interest of C.D.
    No. 2011-CK-1701.
    Supreme Court of Louisiana.
    July 2, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Summerlin Forsyth Strachan, Assistant District Attorney, for Applicant.
    Louisiana Appellate Project, Katherine’ M. Franks, for Respondent.
   PER CURIAM.

hThe state filed a delinquency petition in the Juvenile Court for the Parish of Orleans charging defendant with distribution of heroin in violation of La.R.S. 40:966(A)(1). After a hearing conducted on September 30, 2010, the court adjudicated defendant delinquent and ordered him committed to the custody of the Department of Public Safety and Corrections for a period not to exceed one year. On appeal, the Fourth Circuit set aside the juvenile court’s adjudication and disposition order on grounds that “any rational trier of fact, after viewing all of the evidence favorably to the prosecution, must have a reasonable doubt as to the defendant’s guilt.” State in the Interest of C.D., 11-0121 (La.App. 4th Cir.6/29/11), 69 So.3d 1219. We granted the state’s application for review and reversed the decision below because the court of appeal erred in substituting its appreciation of the evidence presented at the delinquency hearing for that of the fact finder.

The evidence adduced at the delinquency hearing showed the following. On June 28, 2010, New Orleans Police Officer Rafael Dobard, assigned to the Narcotics Unit where he had worked for over six years, testified he received a confidential informant’s tip that heroin and unidentified pills were being sold from a house at 2033 Wagner Street, in the Fischer Housing Development. At approximately 10:30 a.m. on June 28, 2010, Dobard set up a surveillance unit to investigate possible drug trafficking. Additional police officers were in the ^neighborhood to act as the “take-down” team for any individuals observed in transactions with the occupants of the residence.

Through binoculars from a location and at a distance he would not describe for fear of revealing his surveillance point, Dobard observed one or two transactions in which unknown individuals would walk up to 2033 Wagner Street, and engage in brief conversation at the door with a brown-complected black male who was wearing a black t-shirt and black shorts. Dobard viewed the individuals and the black male exchange an unknown amount of currency for an unknown item. After one of the individuals left, Dobard sought to have his “take-down” team arrest him, but they were unsuccessful in finding him. Later that afternoon, Dobard observed a black female approach the residence in a champagne-colored Buick Regal, speak with the black male under observation at the front door, and both went to the side of the house. Once there, the black male reached into his pants, retrieved an item and gave it to the woman in exchange for money. The female then returned to her car and drove out of the development. Dobard radioed his take-down team to alert them and continued to watch the residence. According to the officer, the development buildings, styled something like townhouses, had both front and back entrances, and his surveillance point provided him with a view of the front door.

Within a minute of Dobard’s call, the take-down team pulled over the departing female, later identified as Mary Charles, in the Buick Regal only two blocks away. As the officers were removing her from the vehicle, Charles threw a foil packet clenched in her right hand to the ground. The officers retrieved the packet, conducted a field test on the brown powder concealed within, and placed Charles under arrest. After the take-down team notified him the powder was heroin, Dobard relayed this information to another officer to prepare a search L warrant for the residence while he continued his surveillance of the location for approximately one more hour. Once the warrant was prepared and presented to a magistrate for signing, Do-bard left the scene to retrieve his own police cruiser. The officer observed defendant walk back into the house before he left. Dobard assigned another officer to keep the residence and black male under surveillance in his absence.

Shortly after 4:00 p.m., the officers returned to the residence to execute the search warrant, and Dobard was part of this police team. A search of the house failed to locate the black male among the five or six individuals on the scene, some of whom were arrested. However, Dobard then noticed his suspect standing across the street. The officer observed the black male no longer wore black shorts and a black t-shirt but had on a yellow, black, and white plaid shirt, and blue jeans. Defendant was placed under arrest and $138 was seized from him as evidence. No drugs or drug contraband were seized. Dobard was the only police officer involved in the investigation to testify at the hearing.

Defendant’s mother testified he was helping her move during the day, and he had only left her around 4:30 to 5:00 p.m. She later testified he left around 1:30-2:00 p.m. to go to a nearby house on Hendee Street occupied by a woman identified only as the “candy lady.” She further testified the police took defendant from the “candy lady’s” house and brought him to Wagner Street, where they then arrested him. Defendant’s mother could see both 2033 Wagner Street and the “candy lady’s” home on Hendee street from her own home on Vespasian Street. The defense also called Annaise Rashad Esteen, a resident of 2033 Wagner Street. Esteen acknowledged that he had pled guilty to possession of a stolen firearm and possession of pills stemming from the search of the residence on June 28, 2010. Esteen testified he knew defendant from the neighborhood, but claimed defendant |4had never been to his house or porch which is frequently crowded by other residents of the Fischer Housing Development. “We have everybody on our porch,” Esteen testified, “I don’t tell them nothing.” Among the crowd on his porch was an individual who looked similar to defendant. Esteen described the man as having a “red” skin complexion and a chipped tooth. According to Esteen, the man is of the same height as defendant but lighter complected.

James Baker testified for the defense he was also at the “candy lady’s” house and was arrested at the same time as defendant. Baker stated he had been with defendant for “about a hour and 30 minutes,” at the home of his friend next to the “candy lady” house before their arrest, and he never saw defendant go to Wagner Street residence. For his part, defendant testified he was arrested because “they thought I looked like somebody,” although, in his opinion, he did not resemble anyone else in the development. When arrested, defendant told police they had the wrong person, and denied he had been on Wagner Street until the police arrested him at the “candy lady’s” house and brought him there.

Recalled by the defense, defendant’s mother testified that a man named “Earnest” was probably the individual the police and other persons around the neighborhood confused for her son. She described “Earnest” as “red” in skin tone, in her terms, “brown skinned,” just as her son, and stated that the only difference is that Earnest “got a crack [tooth].”

In vacating the juvenile court’s delinquency adjudication of defendant, the court of appeal noted the state’s case rested entirely on the uncorroborated testimony of Officer Dobard, which, in the court’s view, “[did] not negate every reasonable probability of misidentification, especially given C.D.’s different clothing [at the time of arrest], the lack of drugs on his person, and his lack of connection to this part of the neighborhood and the 2033 Wagner residence.” C.D., 11-0121 at 7, 69 So.3d at 1223. Although acknowledging that “eye witness testimony alone can be sufficient evidence to satisfy the State’s burden,” the court of appeal observed that “Louisiana jurisprudence has recognized that there are instances in which ‘numerous eccentricities, unusual coincidences and lack of corroboration’ make such testimony so unreliable that even a reasonably pro-prosecution rational fact finder must have a reasonable doubt about the identification.” Id., 11-0121 at 7-8, 69 So.3d at 1223 (quoting State v. Mussall, 523 So.2d 1305, 1311 (La.1988)). In concluding the present case offered one such instance, the court of appeal took into account the failure of the state to produce any evidence in support of its hypothesis that defendant could have changed clothes and slipped out of the back of 2033 Wagner undetected by police surveillance even as he crossed the street and stood in front of the residence where Dobard found him after the officer returned to the scene with the warrant team. Id., 11-0121 at 8, 69 So.3d at 1224. The court of appeal further noted the police had made no attempt to bring Mary Charles back to the scene to identify the person who sold her the heroin, an omission that spoke “volumes” about the state’s failure to corroborate Dobard’s eyewitness identification of defendant. Id., 11-0121 at 9, 69 So.3d at 1224. Finally, the court of appeal emphasized that juvenile delinquency proceedings are essentially civil in nature, State in the Interest of Batiste, 367 So.2d 784, 789 (La.1979), and that review of a delinquency adjudication is therefore subject not only to the due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), but also to a broader standard by which an appellate court reviews both the facts and law, specifically, the trial court’s factual findings, for clear or manifest error, “to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.” C.D., 11-0121, p. 6, 69 So.3d at 1223 (citation 1nomitted). Given the loose ends in the state’s case, the court of appeal concluded “the trial court was clearly wrong in determining that the state had proven the identification of C.D. beyond a reasonable doubt.” Id., 11-0121 at 10-11, 69 So.3d at 1224-25.

However, as a matter of due process, the court of appeal erred in losing sight of the basic principle on review that the rational fact finder test of Jackson v. Virginia, “does not permit a reviewing court to substitute its own appreciation of the evidence for that of the [fact finder].” State v. Lubrano, 563 So.2d 847, 850 (La.1990) (citing State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983)). Thus, an appellate court should ordinarily not assume “the role of the fact-finder to weigh the respective credibilities of the witnesses” and thereby “second guess the credibility determinations of the trier of fact beyond ... sufficiency evaluations under the Jackson standard of review.” Graffagnino, 436 So.2d at 563.

As the court of appeal acknowledged in the present case, “[e]yewitness testimony alone is usually sufficient in the mill run of cases.” Mussall, 523 So.2d at 1311. Mus-sall stands as the single, sui generis, exception to that rule in this Court’s jurisprudence, and it is distinguished by its truly bizarre facts. Id., 523 So.2d at 1312 (“With the addition of the eccentricities of [the victim’s] story any rational trier of fact must take a dim view of the state’s case even in its most favorable light: a frugal young man who saves a nest egg on minimum wage, responds to a call out of the blue from a virtual stranger about a boat owned by the caller’s friend by liquidating his $4,000 savings, borrowing $2,000 more from his sister at 18 ½%, and rushing off to meet the caller with $6,000 in his pocket, without first inspecting the boat or talking to the owner of the boat about price; and an armed robber who calls in advance of the crime to renew acquaintances with his |7victim, uses his correct name and leaves his home phone number so that he cannot fail to be identified.”).

The decision in Mussall has no bearing on the outcome in the present case because there was nothing “eccentric” or “unusual” about the testimony of Officer Dobard, an experienced narcotics officer who conducted a routine drug investigation in a routine manner, a “mill run case” in which the police acted on a tip from a confidential informant, established a surveillance of the suspect location, and observed what then happened in an attempt to verify the information. See, e.g., State v. Williams, 250 La. 64, 193 So.2d 787 (1967); State v. Robertson, 02-0156 (La.App. 4th Cir.2/12/03), 840 So.2d 631; State v. Lawrence, 02-0363 (La.App. 4th Cir.5/8/02), 817 So.2d 1216; State v. Bryant, 98-1115 (La.App. 4th Cir.8/4/99), 744 So.2d 108. Officer Dobard would not give his location or exact distance from 2033 Wagner Street but he did state he was “not 200 feet” away and was using a pair of binoculars. He then observed defendant conducting two or possibly three transactions, including the exchange with Mary Charles. The officer thus had more than an ample opportunity to view his suspect, an important factor bearing on the reliability of eyewitness identification testimony. Mamon v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (reliability is the lynchpin of the admissibility of identification testimony and is determined by several factors, foremost of which is the opportunity to view).

In addition, while the state failed to produce “surveillance video, maps, or the like,” C.D., 11-0121 at 8, 69 So.3d at 1224, to show the various entrance and exit points of 2033 Wagner Street, Dobard testified explicitly the residence had front and back approaches. His surveillance point had afforded him a view of the front porch and the officer assigned to watch the house while Dobard went for his police cruiser to accompany the warrant team presumably continued the 18surveiIIance from Dobard’s vantage point. That the officer may have missed defendant’s departure, perhaps through the back exit, and subsequent appearance across the street wearing different clothing than worn by the suspected heroin dealer, did not negate the reasonable probability Dobard made a reliable identification, based his hours-long observation of the seller through binoculars, because Dobard remembered what defendant looked like, notwithstanding he had changed outfits. Kyles v. Whitley, 514 U.S. 419, 466, 115 S.Ct. 1555, 1581, 131 L.Ed.2d 490 (1995) (Scalia, J., dissenting) (“Facial features are the primary means by which human beings recognize one another. That is why ... the Lone Ranger wears a mask instead of a poncho ... and ... why a criminal defense lawyer who seeks to destroy an identifying witness by asking You admit that you saw only the killer’s face?’ will be laughed out of the courtroom.”). Given the circumstances under which Dobard conducted the surveillance and viewed the heroin trafficker, the failure of the police to keep Mary Charles on the scene for two or more hours until the surveillance wrapped up and the warrant for 2033 Wagner Street was executed may have reflected no more than a rational assessment by officers on the scene that Dobard was in a position to make a reliable identification and that they did not need additional input from a heroin user.

Argument of counsel at the close of the hearing brought all of the circumstances considered by the court of appeal to the attention of the juvenile court, including discrepancies in the defense case with respect to where and how defendant spent the afternoon before his arrest and whether defendant did, or (in his opinion) did not resemble anyone else in the Fischer Housing Development. In the end, the juvenile court found Dobard’s testimony sufficient to negate any reasonable probability of misidentification and because that credibility determination appears rationally based on the evidence presented at the ^adjudication hearing, the court’s finding forecloses second guessing by an appellate court under the rational fact finder test of Jackson v. Virginia. Moreover, even under a broader, civil standard of review, we find no clear or manifest error in the trial court’s credibility determination. See Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (“When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings.... [unless] documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.... a factfin-der’s finding ... based on its decision to credit the testimony of one of two or more witnesses ... can virtually never be manifestly erroneous or clearly wrong.”) (citing, inter alia, Mussall); see also Foley v. Entergy Louisiana, Inc., 06-0983, p. 10 (La.11/29/06), 946 So.2d 144, 153 (“If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”) (citation omitted).

However, defendant further argues that, even assuming the state’s case negated any reasonable probability of misidenti-fication, the evidence at trial nevertheless failed to connect him to the packet of heroin discarded by Mary Charles when Officer Dobard’s back-up team stopped her. Given its view about the reliability of Dobard’s identification, the Fourth Circuit did not address this aspect of defendant’s challenge to the sufficiency of the evidence. We may nevertheless exercise our supervisory authority to consider this claim because the failure of the state’s case on an essential element of the offense charged, in the present case, delivery of the heroin to Mary Charles by defendant, remains subject 110to review “regardless of how the error is brought to the attention of the reviewing court.” State v. Raymo, 419 So.2d 858, 861 (La.1982); see State v. Celestine, 95-1393, p. 3 (La.1/26/96), 671 So.2d 896, 897 (in narcotics cases, distribution is “defined as the ‘delivery’ or transfer of possession and control over controlled substances.”)(citing La.R.S. 40:961(9) & (13); State v. Martin, 310 So.2d 544, 546 (La.1975)).

Defendant argues that because Mary Charles made no statements implicating him in the distribution of the single heroin packet found in her possession, and did not identify him as her supplier, the state’s case failed to negate the reasonable possibility she may have already had the heroin in her possession and obtained it from another source before she stopped at the address on Wagner Street. One such source may have been Shedrick Myles, whose name appears under the same item number assigned to Charles’s arrest and on the criminalist’s report regarding the test results on the packet of heroin, although Detective Dobard testified Mary Charles was alone in the Buick Regal and testimony of the back-up team members at the hearing failed to mention the presence of anyone else accompanying Charles when they pulled over her car.

The record does not reveal what connection, if any, Shedrick Myles may have had to the recovery of the heroin packet from Charles. However, the evidence at the hearing established that Officer Dobard’s back-up unit stopped |nMary Charles less than a minute and no more than two blocks away after receiving his report he had observed an apparent drug transaction conducted at the side of the Wagner Street address. The timing of the stop supported a rational inference by the juvenile court judge that the object clenched in Mary Charles’s hand as she drove away from the scene was the same object Dobard had witnessed defendant transfer to Charles only moments before, even assuming she was not alone in the car when the police stopped the vehicle. Cf. State v. Graham, 422 So.2d 123, 130 (La.1982)(“In comparison with the prosecution’s hypothesis of defendant’s guilt, which is consistent overall with the evidence, the defendant’s circumstantial theory of innocence is remote.”). We therefore find no clear error in the juvenile court’s determination defendant delivered the packet of heroin to Charles.

The decision of the court of appeal is therefore reversed, the juvenile court’s adjudication of delinquency is reinstated, and this case is remanded to the juvenile court for purposes of executing its disposition order.

JOHNSON, Justice, dissents and assigns reasons.

JOHNSON, J.,

dissents from the PER CURIAM and assigns reasons.

hThe Court of Appeal was correct in its review of the State’s evidence and correctly applied the principles set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and La. C.Cr.P. art. 821 before reversing C.D.’s adjudication.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” R.S. 15:438.

In vacating the juvenile court’s delinquency adjudication, the Court of Appeal noted the State’s ease rested entirely on the uncorroborated testimony of Officer Dobard, which did not negate every reasonable hypothesis of innocence, especially given the fact that when the officers searched the residence under surveillance at 2033 Wagner Street, C.D. was not found there. At the time of his arrest, C.D. had on different clothes than the person Officer Dobard had observed engaged in an alleged hand-to-hand transaction at the Wagner Street residence. C.D. had no drugs on his ^person, and several people, including Annaise Rashad Esteen, who pled guilty to possession of pills stemming from the search of the Wagner Street residence, testified that C.D. was not present at the Wagner Street house.

      . According to Detective Dobard, several persons were arrested inside the Wagner Street residence during execution of the search warrant and a Criminal District Court docket master indicates that Shedrick Myles, Mary Gasper, and Annaise Esteen were charged together with various offenses arising out of their arrests on June 28, 2010. As he confirmed in his testimony at the hearing, the prosecution led to Esteen’s guilty pleas to possession of a firearm and Schedule IV drugs. Gasper and Myles also pleaded guilty to possession of heroin and defendant supposes Mary Charles is, in fact, Mary Gasper. In any event, whatever the basis for the charge against Myles, testimony at the hearing placed a packet of heroin in the hand of the woman driving the Buick Regal less than a minute after Dobard reported the apparent drug transaction involving defendant and the driver of the Regal who subsequently identified herself as Mary Charles.


author: PER CURIAM.

text:
    STATE of Louisiana v. Courtney Paul SAVOY.
    No. 2011-K-1174.
    Supreme Court of Louisiana.
    July 2, 2012.

      James D. Caldwell, Attorney General, James C. Downs, District Attorney, Willard T. Armitage, Jr., Assistant District Attorney, for Applicant.
    Edward Kelly Bauman, Lake Charles, LA, for Respondent.
   PER CURIAM.

| tThe state charged defendant by bill of information with simple escape from the Winn Correctional Center in January of 2007, in violation of La.R.S. 14:110(A). After trial by jury, defendant was found guilty as charged and sentenced to the maximum term for the offense of five years’ imprisonment at hard labor, to run consecutively to the sentence he was already serving at the time of the escape. At sentencing, the trial court specifically took into account defendant’s rap sheet which revealed 13 prior felony convictions. The court also considered as an aggravating factor that defendant had (in the court’s opinion) lied in his testimony at trial in which he denied any complicity in the escape. On appeal, the Third Circuit reversed defendant’s conviction and sentence on grounds that the trial court improperly precluded the defense from impeaching state witnesses with their prior inconsistent statements. State v. Savoy, 08-1444 (La.App. 3rd Cir.6/3/09), 11 So.3d 1184.

On remand of the case, the state filed an amended bill of information charging defendant with the more serious crime of aggravated escape in violation of La.R.S. 14:110(C)(1). Defendant filed a pro se motion to quash the amended bill on grounds of prosecutorial vindictiveness in the substitution of a more serious charge for the original to punish him for success on appeal. See Blackledge v. Perry, 417 U.S. 21, 28-29, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974) (“[I]t was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.”). The state rendered the motion moot by filing a third bill of information recharging defendant with simple escape. After trial by jury in 2010, defendant was again found guilty as charged and the trial court resen-tenced him to five years’ imprisonment at hard labor, again noting his long prior felony record and subscribing to its prior sentencing reasons.

The state thereafter filed an habitual offender bill charging defendant as a third offender on the basis of two sets of prior convictions entered on January 25, 2000, and on January 31, 2005. Defendant filed another pro se motion to quash, alleging selective prosecution and prosecutorial vindictiveness. The trial court denied the motion summarily and after a contradictory hearing, adjudicated defendant a third felony offender. The court sentenced defendant to ten years’ imprisonment at hard labor, the maximum term for a third offender convicted of simple escape, to run consecutively to the sentence he was already serving.

On appeal, the Third Circuit affirmed defendant’s conviction but reversed his sentence as excessive and remanded for resentencing. State v. Savoy, 10-1140 (La.App. 3rd Cir.5/11/11), 64 So.3d 457 (Saunders, J., dissenting). We granted the state’s application for review and for reasons that follow, reverse the decision below and remand the case to the court of appeal for further consideration.

The evidence at trial shows that in January 2007, defendant and another Winn Correctional Center inmate, Jacob Shaw, were transported by van from Winnfield to a hospital in Pineville, Louisiana, for injuries ostensibly suffered in a fall. Both inmates were in wrist cuffs, leg irons, and waist chains. Upon arriving at the hospital, one of the guards opened the door of the prison van and observed |sShaw holding his waist chain in his hands. Shaw bolted past the guard and sprinted for the woods nearby, leaving defendant behind still clad in his leg and hand shackles and waist chain. Despite several shots fired in his direction by one of the guards, Shaw escaped into the woods and eluded capture until the following day.

In an initial statement to Winn Parish authorities following his capture, Shaw claimed that he alone had slipped off his waist chain, undid one of his leg irons, and ran for the woods. However, in a second statement, and at trial, Shaw claimed that defendant had helped him escape by picking the locks on both their leg irons as part of a plan to escape from the Correctional Center by overpowering the guards, seizing their weapons, and locking them in the back of the prison van while they drove away. The plan went awry when Shaw, about to pounce on the guard at the rear door of the van after they arrived at the hospital, looked back and saw defendant still seated in the van and refastening his leg irons. Shaw quickly concluded that his accomplice had “fed [him] to the wolves,” and that it was “suicide” to try to grab the guard’s gun. He headed for the woods instead. Shaw had resolved his own escape charge by way of a guilty plea and a sentence of two years’ imprisonment at hard labor. For his part, although he had given conflicting statements about whether he had played any role in Shaw’s escape, at first denying any complicity and then admitting that he had agreed to assist Shaw in the escape, defendant testified at trial and denied that he had planned any escape, assisted Shaw in escaping, or attempted to escape himself.

On appeal, the Third Circuit affirmed defendant’s conviction after rejecting several assignments of error, including one raising the sufficiency of the evidence. As to that question, the court of appeal noted that the trial “involved testimony from several witnesses who contradicted themselves at one point or another,” but 14also observed that “the jury could have reasonably found, based on its credibility determinations, that Savoy aided and abetted in Shaw’s escape or directly or indirectly counseled with him to commit simple escape.” Savoy, 10-1140, p. 9, 64 So.3d at 464. As to the sentence, the court of appeal rejected defendant’s pro se argument that his adjudication and sentence as an habitual offender amounted to selective prosecution, especially in light of the unen-hanced two-year term of imprisonment received by Shaw following his guilty plea. Savoy, 10-1140, p. 23, 64 So.3d at 471 (“What the State did or did not decide with regard to Shaw is immaterial to its legal prosecution of Savoy as a habitual offender.”). The court of appeal further noted that in his pro se brief, defendant argued “he was erroneously given a harsher sentence on retrial (five and ten years) without the trial court’s showing of justification for a more severe sentence than was imposed at the first trial (five years).” Id., 10-1140, p. 9, 64 So.3d at 464. The Third Circuit did not address that claim because it found defendant’s sentence excessive in any event, particularly when compared with the two-year term received by Shaw, who had been serving a 20-year sentence for forcible rape at the time of his escape. Given the settled jurisprudential rule that maximum sentences are ordinarily reserved for the most blameworthy offenders committing the most serious violations of the charged offense, see, e.g., State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982), the court of appeal reasoned that “as one who was imprisoned for the commission of a crime of violence, a sex offense, Shaw received the minimum sentence for his completed escape, while Savoy received the maximum sentence for his role as a principal, enhanced to the maximum extent by the third offender adjudication.” Savoy, 10-1140, p. 12, 64 So.3d at 465. The majority concluded that defendant was “not a ‘worst offender’ on whom a maximum sentence should be imposed,” that “the maximum sentence is, indeed, reserved for more egregious offenders,” | ¿and that defendant’s offense “warrant[ed] a shorter sentence.” Savoy, 10-1140 at 12-13, 64 So.3d at 465. The court of appeal therefore vacated defendant’s sentence and remanded for resentencing without providing any specific direction to the trial court.

Dissenting in part, Judge Saunders agreed with the majority’s decision to affirm defendant’s conviction but disagreed with reversing his sentence, noting that defendant had shown “remarkable versatility” in acquiring 13 convictions for a variety of crimes which displayed continued “contempt for law and order.” Savoy, 10-1140 at 1, 64 So.3d at 472 (Saunders, J., dissenting in part). Further, Judge Saunders noted that while none of defendant’s crimes for which he had been adjudicated a third offender involved violence, defendant had in this instance “concocted a plan to overpower the guards and effectuate a multiple escape,” and had thereby “now crossed the line from non-violent to violent felonious conduct.” Id. Judge Saunders thus found no abuse of the trial court’s broad sentencing discretion.

We agree with Judge Saunders that defendant’s sentence does not implicate La. Const. art. I, § 20’s prohibition against excessive sentences. In determining whether a punishment is grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering, State v. Bonanno, 384 So.2d 355, 357 (La.1980), this Court has repeatedly emphasized that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959; State v. Humphrey, 445 So.2d 1155, 1165 (La.1984). In the present case, the court of appeal found that defendant warranted a shorter term of | ¿imprisonment not because it found that the sentence he received was grossly disproportionate to the severity of the offense but because the punishment appeared grossly disproportionate to the sentence imposed on Jacob Shaw, a convicted rapist who actually escaped under circumstances in which at least his life had been threatened when one of the guards opened fire. In fact, while co-defendants convicted of the same crime “need not be sentenced equally, even where the co-defendants come from similar backgrounds and might be similar in other respects, disparity of sentences is ... [a] factor[ ] to be weighed by [an appellate court] in assessing an excessiveness claim.” State v. Smith, 433 So.2d 688, 698 (La.1983).

However, we find no abuse of the trial court’s sentencing discretion in according defendant a “worst offender” status by placing primary weight on his extraordinary prior record by which he appears to have amassed considerably more than just 13 prior felony convictions in two separate proceedings conducted five years apart involving what Judge Saunders accurately characterized as “remarkable versatility” because they included the offenses of simple burglary, simple burglary of an inhabited dwelling, forgery, unauthorized use of an access card, illegal possession of stolen things, bank fraud, and felon in possession of a firearm. As Judge Saunders noted, defendant added to that versatility in the present case by planning an escape which contemplated the use of physical force or violence to overpower the guards and disarm them and, as the state belatedly acknowledged when it briefly charged defendant with the more serious crime of aggravated escape, a 10-year felony offense, had endangered at least the life of Jacob Shaw, who was firmly convinced he had been set up by his accomplice, and threatened public safety generally, when the prison guard opened fire in the hospital parking lot. Defendant’s pri- or lengthy record provided an objective and particularized basis for the trial court to place him in the “worst offender” category. See, e.g.,_jjState v. Harris, 414 So.2d 325, 328-29 (La.1982) (near maximum sentence of four and one-half years for simple escape not excessive given defendant’s lengthy criminal record and disciplinary violations, in addition to his lack of respect and continued defiance of authority); State v. Nunn, 599 So.2d 462, 464-65 (La.App. 2nd Cir.1992) (nine-year sentence not excessive for offender with long history of criminal convictions, escape planned in advance, and posed serious risk to public safety).

Nor do we find any abuse of discretion by the trial court in considering that defendant’s testimony at trial, completely at variance not only with Shaw’s testimony but also with one of the statements he gave the authorities in the course of the investigation, reflected what his lengthy prior record revealed about his potential for rehabilitation. While a trial court may not use its assessment of defendant’s credibility as the sole basis for imposing a relatively harsh sentence, State v. Soco, 441 So.2d 719, 721 (La.1983); Quebedeaux, 424 So.2d at 1014, a court may “tak[e] into account the defendant’s honesty under oath as a measure, ⅛ light of all other knowledge gained about the defendant ... [of] his prospects for rehabilitation and restoration to a useful place in society.’ ” State v. Salinas, 97-2930, pp. 1-2 (La.9/25/98), 719 So.2d 1035 (quoting United States v. Grayson, 438 U.S. 41, 55, 98 S.Ct. 2610, 2618, 57 L.Ed.2d 582 (1978)).

We conclude that the Third Circuit erred in vacating defendant’s sentence as excessive. However, the enhanced term of 10 years’ imprisonment at hard labor, twice what defendant received before the court adjudicated and sentenced him as a third offender, may implicate Blaclcledge and the Supreme Court’s seminal decision in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969), which held that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having | ^successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” See also Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986) (noting that the Pearce rule has undergone refinement over the years according to “the need, under the circumstances, to ‘guard against vindictiveness in the resentencing process.’ ”) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714) (omitting emphasis).

Accordingly, the decision below setting aside defendant’s sentence as excessive is reversed and this case is remanded to the court of appeal for consideration of defendant’s pro se claim pretermitted on original appeal that his resentencing as a habitual offender to a term of imprisonment twice as long as originally imposed does not comport with due process of law.

DECISION OF THE COURT OF APPEAL REVERSED; CASE REMANDED.


author: GASKINS, J.

text:
    John E. SETTLE, Jr., Bike, L.L.C. and Kathy Condon, Plaintiffs-Appellants v. BOSSIER PARISH SCHOOL BOARD, Honorable Tom Schedler, Louisiana Secretary of State and Angie Rogers, Commissioner of Elections & Registration, Defendants-Appellees.
    No. 47,644-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 3, 2012.

      John E. Settle, Jr., Bossier City, LA, for Plaintiffs-Appellants.
    Hammond and Sills, Baton Rouge, LA, by Jon K. Guice, for Defendant Appellee Bossier Parish School Board.
    Merietta Spencer Norton, Stephen Hawkland, Baton Rouge, LA, for Defendants-Appellees Tom Schedler, Secretary of State and Angie Rogers, Commissioner of Elections.
    Before STEWART, GASKINS, CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

|! This appeal arises from an action contesting an April 21, 2012, election on propositions submitted to the voters of Bossier Parish for the issuance of bonds and the levying of property tax millages for the parishwide school district. The bond proposition passed; the proposed tax mil-lages were rejected. The plaintiffs, John E. Settle, Jr., BIKE, L.L.C., and Kathy Condon, then sought to void the election. The trial court denied the plaintiffs’ petition and upheld the election. We affirm, concluding like the trial court, that the actions taken in this case are not irregularities or fraud in the conduct of the election that would require nullification.

FACTS

The plaintiffs’ petition, relying on La. Const, art. 11, § 4, which prohibits the use of public funds to urge any elector to vote for or against any candidate or proposition, alleged that the Bossier Parish School Board (“BPSB”) conducted unlawful activities in the “promotion” of the propositions. Paragraph 22 of the petition included the following allegations (verbatim):

(3) utilization of BPSB employees to send emails to parents regarding bond and tax election through “school loops”;
(4) utilization of BPSB employees to promote the election by urging (if not requiring) that they vote and solicit votes from friends, families, and organizations;
(6) advising the public through the media as well as the emails and mailings, that passages and the “tax renewal” would not be new taxes.

Paragraph 25 of the petition asserted that the information distributed failed to advise the public that “almost all immovable property in Bossier Parish is to be |2reassessed in 2012 as per state law and that most residences would be reassessed at a higher value.”

Paragraphs 26-28 alleged that the language on the ballot for the tax proposition was false and misleading, that BPSB was seeking authority to sell new bonds and incur new debt, that the language on the ballot was for the passage of $210,000,000 of General Obligation Bonds, and not for a “tax renewal” as advertised, and that the ballot proposal stated the bonds would be payable from ad valorem taxes with no estimated increase in the millage rate to be levied in the first year of the issue above the 13.55 mills currently being levied.

As to the allegations concerning the circulating of false and misleading information about the propositions, the court first quoted from Concerned Business and Property Owners of DeSoto, Inc. v. DeSoto Parish School Board, 528 So.2d 567 (La.App. 2d Cir.1988), reversed on other grounds, 531 So.2d 436 (La.1988), “[c]ourts will not entertain election contests unless it is shown that the matters complained of would have changed the result of the election. ... Additionally, courts are loathe to thwart the result of an election and will change that result only for grave and sufficient reasons.” The trial court, citing Adkins v. Huckabay, 1999-3605 (La.2/25/00), 755 So.2d 206, restated the burden of proof and noted that the plaintiffs’ were required to show that because of fraud or irregularities, the outcome of the election either would have been different, or would have been impossible to determine.

The trial court found that the representations made by BPSB about the millages and the cost of the bond proposal were factually correct, that the evidence did not indicate that BPSB intentionally misled voters into believing that the bond proposition would not increase taxes, that there was no evidence BPSB had deliberately misrepresented or suppressed the fact that properties in Bossier Parish |swere scheduled to be reassessed in 2012, and that no evidence was set forth that would indicate the results of the election would have been any different had any alleged irregularities been rectified. Finally, the court held that the language of the proposition complied with statutory requirements.

Finding that the plaintiffs failed to carry their burden of proof on fraud, and that the bond proposal strictly complied with Louisiana law, the trial court refused to overturn the election of April 21, 2012. For the following reasons, we hold that the trial court correctly refused to void the election on the basis of the alleged dissemination of false and misleading information.

On appeal, the appellants essentially assert that the trial court erred in finding the absence of fraud or irregularities on the part of BPSB, and that the trial court failed to apply the correct burden of proof as set forth in Adkins v. Huckabay, supra.

The provisions of La. R.S. 18:1401(0 state:

A person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different. [Our emphasis.]

Except for the allegations concerning the language on the ballot, plaintiffs’ petition, as well as the evidence submitted at trial, focused solely on: (1) the alleged illegal use of public funds and resources by BPSB to promote passage of the proposition; and (2) the truthfulness of information disseminated by and on behalf of BPSB in that regard.

La. Const, art. 11, § 4 addresses the prohibited and allowed use of public funds in an election for a proposition:

No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization. This provisions shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot.

| .¡This constitutional article is restated in La. R.S. 18:1465, and provides for a criminal penalty for prohibited actions.

On February 1, 2012, the school board disseminated a communication to the Bossier schools to be included on their website, entitled “Grow With Us.” Pertinent excerpts from that document include the following:

Bossier Schools must continue to move forward, not slip backward — which is why we urge you, the stakeholders of our parish, to vote “yes” to the bond referendum we will be seeking April 21. This construction bond is a continuation of the 13.55 mills being currently levied in Bossier Parish and will not raise property taxes. Your continued support, however, will generate funds needed to build new schools where warranted and renovate those in need of improvements.

The school board was advised that some of its promotional activities might be in violation of the law with respect to expenditure of public funds, and urging electors to vote; by February 17, 2012, the language urging the vote was omitted from this website communication. This “urging to vote” language was only on the websites a maximum of 17 days, and was taken down two months prior to the election. While arguably this may have violated the use of public funds prohibition in urging the vote for the proposition, it was insubstantial and too remote in time to affect the outcome of the election. Additionally, the school board presented testimony that a private entity had paid for some of the proposition promotions.

Two days before the election, the principals were sent a letter to put on their websites and to send electronically to parents, which included the following:

This is all possible at no increased cost to taxpayers. The parishwide construetion bond proposition on the April 21 ballot would simply enable Bossier Schools to restructure and reallocate the current 13.55 millage to sell bonds to fund these improvements and meet the growth and renovation needs.

The language of the bond proposition that was placed on the ballot stated:

IfiParishwide Proposition (School District) (Bond)
Summary: To authorize not exceeding $210,000,000 of not exceeding 20 year General Obligation Bonds of Parishwide School District of the Parish of Bossier, State of Louisiana, for the purpose of acquiring and/or improving lands for building sites and playgrounds, including construction of necessary sidewalks and streets adjacent thereto; purchasing, erecting and/or improving school buildings and other school related facilities within and for the District and acquiring the necessary equipment and furnishings therefore, and refunding and extending outstanding certificates of indebtedness.
Shall Parishwide School District of the Parish of Bossier, State of Louisiana (the “District”), incur debt and issue in series from time to time not exceeding, Two Hundred Ten Million Dollars ($210,000,000) of general obligation bonds to run not exceeding twenty (20) years from date thereof, with interest at a rate or rates not exceeding nine per centum (9%) per annum, to be sold at par, premium or discount, approximately $202,500,000 of which bonds to be issued for the purpose of acquiring and/or improving lands for building sites and playgrounds, including construction of necessary sidewalks and streets adjacent thereto; purchasing, erecting and/or improving school buildings, and other school related facilities within and for the District and acquiring the necessary equipment and furnishings therefor, title to which shall be in the public, and approximately $7,500,000 of which bonds to be issued for refunding and extending the outstanding Certificates of Indebtedness, Series 2008, of the Parish School Board of the Parish of Bossier, State of Louisiana; all of which bonds will be general obligations of the District and will be payable from ad valorem taxes to be levied and collected in the manner provided by Article VI, Section 33 of the Constitution of the State of Louisiana of 1974 and statutory authority supplemental thereto, with no estimated increase in the millage rate to be levied in the first year of issue above the 13.55 mills currently being levied to pay General Obligation Bonds of the District?

Trial testimony, particularly that of David Scott Hughes, executive director of the Alliance for Education, revealed that the basis of plaintiffs’ claims of false and misleading information focused on the claim that the bond proposition would not raise property taxes. Hughes explained that the current 13.55 millage would have expired when the already existing bonds were paid off, and that by asking for a new construction bond of 13.55 mills, “you’re actually asking for the right to extend out the tax another 20 to 25 more years. So, in effect, yes, if you’re a taxpayer expecting that millage to go off the books, this would be a new tax going on the books.” He continued, “The fact that it would be the same amount I think in many people’s minds might imply that they’re not going up, but in effect they would go to zero one day and go back up the next day and that would be an increase in taxes.”

The plaintiffs also alleged that the school board’s information about no tax increase was false because property was scheduled to be reassessed in 2012. Testimony of the Bossier Parish Tax Assessor, Bobby W. Edmiston, indicated there would be a reassessment in 2012, and that he estimated a two to four percent increase in the value of residential property; on the other hand, he did not foresee an increase in value of business property, and perhaps a decrease overall. He did not expect the assessments on racetrack and casino operations to go up.

DISCUSSION

The jurisprudence stops short of holding that allegations concerning pre-election promotion of a proposition or candidate can never state a cause of action under the Election Code. See Concerned Business, supra; Williams v. Police Jury of Concordia Parish, 160 La. 325, 107 So. 126 (1926), and Dupre v. City of Houma, 216 So.2d 576 (La.App. 1st Cir.1968), writ refused, 253 La. 329, 218 So.2d 45 (1969). Instead, the provisions of La. R.S. 18:1401(C) show that the focus of inquiries concerning allegations of fraud and irregularities is on the conduct of the election.

The Louisiana Election Code consists of an elaborate framework of statutes designed to cover every aspect of conducting elections, and includes specific provisions regulating bond and tax elections that address matters from the resolution of a governing authority ordering the election, to the canvassing of the returns. Under this framework, fraud and irregularities in the conduct of an ^election could involve such matters as improper voter registration, exclusion of voters at the polls, receiving illegal votes, tampering with voting machines, mishandling absentee ballots, improper canvassing of the returns, etc. These matters obviously can have a direct impact on the outcome of an election.

Additionally, the trial court correctly concluded that the evidence did not indicate that BPSB intentionally misled voters into believing that the bond proposition would not increase taxes, that there was no evidence BPSB had deliberately misrepresented or suppressed the fact that properties in Bossier Parish were scheduled to be reassessed in 2012, and that no evidence was set forth that would indicate the results of the election would have been any different had any alleged irregularities been rectified. The language used in promoting the proposition was correct in that the current tax millage of 13.55 was not estimated to increase in the year of issue, and no evidence was presented to show that it would increase in the future. Moreover, the scheduled reappraisal was independent of this election; under La. Const, art. 7, § 18, “all property subject to taxation, shall be reappraised and valued in accordance with this section, at intervals of not more than four years.” The tax assessor’s testimony that some assessments were expected to increase, while others were expected to stay the same or decrease, does not aid the plaintiffs in any respect. The description of the 13.55 mills in the language promoting the proposition as “a continuation of the 13.55 mills being currently levied” is accurate.

For the reasons stated, the plaintiffs fell short of meeting their burden of proving that because of fraud or irregularities the outcome of the election either would have been different, or would have been impossible to determine. In this regard, we also note that no witnesses testified that they believed they were misled 18in any way by the school board’s promotion, or that they would have voted differently had they not been influenced by the school board’s promotion.

As for the plaintiffs’ allegation concerning the language on the ballot for the tax proposition, we have examined that language and do not find it either false or misleading in any respect; like the trial court, we find that the language of the proposition complies with the provisions of La. R.S. 18:1284.

For the foregoing reasons, we affirm the trial court’s decision upholding the election.

ADDITIONAL MATTERS

Recusal of the Trial Judge

The plaintiffs assert on appeal that the trial judge should have recused himself. They point to the judge’s connection to BPSB, and argue that “[i]t would have been a fruitless exercise” to have insisted on a recusal hearing, and request, as an alternative to voiding the election, that due to the nonrecusal, the case be remanded for a new trial before another judge of the 26th Judicial District Court.

The record reveals that on the day of the trial, the plaintiffs filed a motion to recuse Judge Cox on the basis that he was personal and social friends with two school board members, Brad Bockhaus and Mike Mosura. Judge Cox was unaware of the recusal motion until the beginning of the trial proceedings. Judge Cox informed plaintiffs’ attorney that he did not know Brad Bockhaus, to which plaintiffs’ attorney replied, “Anonymous phone calls often are not correct, Your Honor.” On the other hand, Judge Cox readily admitted that he knew Mr. Mosura, decided to hold a pretrial conference, and stated, “And then I’m going to put some things on the record and then I’m probably going to refer it to a recusal hearing.”

After the pretrial conference, the judge announced that he was not going to recuse himself; he then went on to disclose his relationship with Mr. Mosura with | gwhom he had hunted and fished and with whom he went to church. The judge also revealed that Jason Smith, who the judge believed was “over the architectural part of the bond election” was in the judge’s Sunday school class; that the judge’s wife had worked for BPSB in the past; that Bill Kostelka, who had served on the school board in a prior period, was in the Rotary Club with the judge and had a partner who prepared the judge’s financial disclosures for the state; and that when the judge was an assistant district attorney, he was at two school board meetings where he served as an attorney for the school board.

After making these disclosures both in the pretrial conference and in open court, the judge stated that he would let the plaintiffs’ attorney decide if he wished to have a recusal hearing; if so, the judge said he would then set it immediately. However, the plaintiffs’ attorney stated:

Yes, Your Honor, thank you for your disclosure. Your reputation on the bench is impeccable. We anticipate the case will be — proceed probably from this Court to another courtroom and my client has insisted, and rightly so, that our record be complete. I’ve conferred with my client and after full disclosure which was information that had been sent to my office some of which, not all of it, by various people anonymously. We’ve decided we’ll continue with — with you in the case. I do want the motion in the- — for the record, but I’ll waive any hearing and agree to have you hear the case. [Our emphasis.]

The plaintiffs’ attorney made no objection on the record.

The record reveals no grounds for recu-sation, mandatory or otherwise. La. C.C.P. art. 151. The plaintiffs did not allege that the judge was biased or prejudiced, or interested in the cause or its outcome to such an extent that he would be unable to conduct fair and impartial proceedings. Furthermore, after the judge made a full disclosure and offered to refer the matter for a recusal hearing, the plaintiffs’ attorney praised the judge for his impeccable reputation, waived the | shearing, and agreed to have Judge Cox hear the case. Given these circumstances, the plaintiffs’ recusal argument is merit-less.

No Right of Action

As previously noted, a “person in interest” may bring an action, such as the one herein, contesting an election in which a proposition is submitted to the voters. Although BPSB did not file an exception of no right of action in the trial court, and has not formally filed such an exception in this Court, BPSB asserts at the end of its appellate brief that the plaintiffs did not have a right of action to bring the lawsuit. BPSB points out that the plaintiffs offered no proof that they were registered voters in Bossier Parish and/or that they are taxpayers of immovable property situated in Bossier Parish, and that BPSB denied their allegations of such status in its answer.

Despite BPSB’s failure to file an exception of no right of action, we note that an appellate court can notice the absence of a right of action on its own motion. La. C.C.P. art. 927(B). While the term “person in interest” is not defined in the Election Code, BPSB did admit in its answer that plaintiff, John E. Settle, maintained an office in Bossier Parish. Furthermore, Mr. Settle stated, when questioning Mr. Edmiston, that he owned commercial property at 1915 Citizen’s Bank Drive (the same address as his law office). Mr. Ed-miston responded, “Right.” Mr. Settle then asked if his property would be reassessed in 2012, and Edmiston replied, “That will be reassessed this year.”

Given that BPSB admitted Settle had an office in Bossier Parish, and given that part of the reassessment in 2012 would cover not just business real estate, but business personal property as well, we conclude that sufficient evidence existed to show Settle was a person in interest.

| ^Timeliness of Appeal Bond

We also note that, on the face of the record, the bond for this appeal appears to have been filed late. The provisions of La. R.S. 18:1409(D) state in pertinent part, “Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs.” In this matter, the parties were notified of the trial court judgment at 10:38 a.m. on June 26, 2012. The order of appeal and bond was set at 8:33 a.m. on June 27, 2012. The appeal bond was filed at 2:26 p.m. on June 28, 2012.

While jurisprudence supports the strict implementation of this time limit, there is also jurisprudence that allows extensions of time for the bond filing based upon notions of proper notice and fair play. See Dumas v. Jetson, 446 So.2d 747 (La.App. 1st Cir.1983); Walker v. Rinicker, 29,361 (La.App.2d Cir.9/6/96), 681 So.2d 1; Francois v. Thibodeaux, 2002-1588 (La.6/12/02), 821 So.2d 479. See and compare Burkett v. Lewis, 42,985 (La.App.2d Cir.9/21/07), 966 So.2d 718; Davis v. Malveaux, 2006-2096 (La.App. 1st Cir.10/24/06), 945 So.2d 70. No reasons were presented to explain the apparent late filing of the bond. However, no party has complained that the filing was not timely. Because we affirm the trial court ruling and uphold the election, we pretermit this matter without further investigation.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . The petition also contained allegations that public funds were spent to urge voters to vote for the proposition. On this issue, the trial court granted the defendants’ exception of no cause of action. The correctness of this ruling was not cited as error in this appeal.

      . Under die Rules of Professional Conduct, once the attorney waived his objection and stated the trial judge’s reputation was impeccable, the attorney should not have and could not, cite the lack of recusal as an error on appeal.