author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Jackie GREEN.
    No. 2010-KA-0454.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant, Jackie Green.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

I,Defendant Jackie Green was indicted on two counts of second-degree murder and entered pleas of not guilty. Defendant filed motions to suppress the evidence, confession, and identification. Defendant was found guilty as charged on both counts of second-degree murder, and he was sentenced on both counts to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Defendant appeals, arguing that the verdicts of second-degree murder are “irrational” because the mitigating factors of “sudden passion” or “heat of blood” introduced at trial only support verdicts of manslaughter. Defendant also argues that the trial court erred in admitting into evidence the recording of a conversation with his mother.

We find that the evidence presented was sufficient to prove that Defendant had the specific intent to kill or to inflict great bodily harm before entering the house. Further, we find that the trial court did not err in admitting into evidence the recording of Defendant’s conversation with his mother, as the interrogation room became Defendant’s temporary jail in which he had no reasonable expectation of privacy. Defendant’s convictions and sentences are affirmed.

|,STATEMENT OF THE CASE

Defendant was indicted on two counts of second-degree murder. Defendant entered pleas of not guilty. Counsel for Defendant filed motions to suppress the evidence, confession and identification, and the district court denied all three motions. Counsel for Defendant filed a three-part motion in limine.

The district court ruled to only allow the murder weapon and shells to be introduced as evidence, to allow the taped conversations between Defendant and his family to be introduced as evidence and, to disallow the first 911 tape into evidence. The State filed an emergency writ in this Court. This Court granted the writ, reversed the district court’s ruling on the 911 tape, and ruled the 911 tape admissible. Following a two day trial, Defendant was found guilty as charged on both counts; Defendant was sentenced on both counts to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

FACTS AND PROCEDURAL BACKGROUND

The following facts were adduced at trial and at the motion to suppress hearing:

Cierra Williams, daughter of the victim, Marilyn Williams Green, testified that her mother and Defendant were married in 2001. Cierra was five years old when they met and began to date each other. Cierra had a very close relationship with Defendant. She never observed Defendant show physical violence towards her mother but admitted that they had violent “words” with each other. Prior to Hurricane Katrina, Defendant and the victim were separated for approximately one year. Cierra had no contact with Defendant during that time. After the storm, Cierra, her mother, and two cousins moved into a FEMA trailer with Defendant. |sThe arguments continued with cursing and yelling by Defendant. Cierra testified that Defendant never harassed her or her mother after he moved out of the Cavalier Drive house. However, on one occasion Defendant used his house key to enter the house. When Defendant discovered that one of Cierra’s cousins was in the middle bedroom, he quickly left the house. Cierra stated that her mother asked Defendant for his house key when he left, but he must have had a copy of the key. Her mother did not change the locks because she could not afford to do so, nor did she obtain a restraining order. On one occasion she found her mother upset and crying because Defendant had made verbal threats to her. She referred to an incident of a verbal threat made by Defendant to her mother during a cell phone call on April 10, 2009. Her mother recorded the threat and went to a police station to press charges. She stated that she never would have expected Defendant to kill her mother.

Cierra described an April 10, 2009 incident as a vehicle confrontation by Defendant. As she and her mother were driving home, Defendant drove behind their vehicle and began to bump the back of the vehicle. At the same time, he called Cier-ra’s cell phone and ordered her mother to answer the phone. Cierra testified as follows:

“And my mom was like, speed up, speed up, speed up. So I answered the phone. He was like, tell your mama to get the phone. My mom, she was making hand gestures, I don’t want the phone. I was like, she said she don’t want the phone. He was telling that “B” to get the phone. My mom still did her hand, she don’t want to. I said, she don’t want to talk. During the time I placed the phone on speaker, and he said, tell that “B” I’m going [sic] kill her and hung up the phone. At the same time he’S [sic] still running as if he was going to hit the vehicle.”

She and her mother drove to the police station and explained what had occurred, and she further testified as follows:

14“And at this time he was still calling my phone. Yeah. He called it again. It was private, of course. And I placed the phone on speaker. And I said, why you just said you was going to kill my mama? And one of the police was like sitting, waiting for him to say something. I say, why you say you was going to kill my mama? He said, I’m not going to kill your mama. And the police was kind of laughing. Where y’all at? Y’all at the police station? Y’all at the police station? He hurry up and hung the phone up.”

The date was April 10, 2009; her mother was murdered on April 25, 2009. Cierra testified that when she returned home at approximately 12:30 p.m. on the date of the incident she observed yellow tape, a barricade, an ambulance, police cars, and a lot of her neighbors standing outside her mother’s residence on Cavalier Drive. She learned that her mother and her mother’s Mend, Lionel Nelson, had been shot to death. She testified that her mother and Defendant were divorced in 2006. Later, they reconciled and lived together from late 2006 until late 2007 in a FEMA trailer located on Defendant’s aunt’s property. They moved back into their home on Cavalier Drive in September 2007. In February 2009, Defendant and the victim separated again, and Defendant moved out of the house on Cavalier Drive. However, Cierra testified that Defendant returned to the neighborhood almost on a daily basis, driving past the Cavalier Drive house. He would speak to the neighbors and often would visit Cierra at the house. Eventually, Marilyn Green instructed Cierra not to allow Defendant into the house; Cierra obeyed her mother’s instructions and refused to allow Defendant into the house. Approximately twenty-three days after the murder, Cierra returned to the house and found her mother’s cell phone. She checked the incoming and outgoing calls and discovered that Defendant had made two calls to her mother on the night of the murders.

IsSergeant Stuart Smith of the New Orleans Police Department testified that he responded to a call of a shooting of a female. Upon arriving at the scene, Sgt. Smith observed a black female lying in the grass between the sidewalk and the curb in front of the residence; the female was deceased. Sgt. Smith notified the dispatcher that the call was a possible homicide and to notify the homicide division, the crime lab, and the coroner’s office. The porch light of the residence was on and the front door was open. Smith notified the dispatcher that he was going to enter the residence to check for other victims or possible perpetrators. Smith approached the front door, announced his presence as a police officer, and asked if anyone was in the house. He heard a noise but could not tell if it was a person or an animal. He heard what he perceived to be a voice and a banging sound. He again announced his presence and gave the command to come out; there was no response. Sgt. Smith and two other police officers then proceeded inside the house and into a hallway. Sgt. Smith observed a black male lying on the floor of the master bedroom banging on the floorboard of the bed. A pool of blood was under the man’s left hip. The man kept saying, “I can’t breathe, I can’t breathe.” Sgt. Smith asked the man where he was shot. The man tapped his left hip and his chest. Sgt. Smith pulled up the man’s T-shirt and observed in the middle of his left upper chest a wound with both muscle and fat tissue exposed. The man was transported by Emergency Medical Services (EMS) to the hospital. Sgt. Smith observed blood spatter in the kitchen, master bedroom, bathroom, den and living room. In the den the coffee table was moved; items on the table were skewed; a house phone and strands of hair were on the floor. Sgt. Smith located shotgun wadding lying next to both victims. In the driveway of the residence, underneath the passenger side of a parked vehicle, Sgt. Smith found a spent twelve ftgauge shotgun shell. He ordered all the evidence to be collected by the crime lab and turned over to the homicide detectives.

Dr. Paul McGary, forensic pathologist, performed the autopsy on Lionel Nelson. Dr. McGary reviewed the autopsy protocol written by Dr. Hubert who performed the autopsy on Marilyn Green. Lionel Nelson sustained two shotgun wounds; one entered the right lower chest, penetrated the abdomen, liver, and intestines, and exited through the left side of the stomach resulting in a lot of internal bleeding. The second shotgun wound was to the left upper thigh. Both wounds were inflicted at close range with a buckshot type load that stayed together in a small cluster. Death was due to blood loss and was classified as a homicide. Marilyn Green sustained two close range shotgun wounds. One went through the back of the forearm. The second entered through the left chest above the left breast, penetrated the right lower back, both lungs, the heart, aorta, lungs, liver and the major veins coming back to the heart. Death was due to massive internal hemorrhage.

Dr. McGary described a shotgun shell as consisting of an outer casing containing gunpowder and an igniter surrounding either one lead ball, nine to twenty lead pellets, or hundreds of small birdshot lead pellets depending on the nature of the shell. Dr. McGary agreed that finding two shotgun wounds on each victim is not necessarily indicative of four shots fired. He opined that two shots could have inflicted the wounds on each individual.

Emily Martinez, New Orleans Police Department crime lab technician, photographed, dusted the crime scene for fingerprints, collected evidence and completed a crime scene report. She identified photographs of the interior and exterior of 13649 Cavalier Drive and photographs of the female victim. Martinez |7colleeted seven spent pellets, two metal fragments, two shotgun shell wads, one twelve gauge double ought buck spent shotgun shell and partial latent fingerprints. All evidence was sent to the central property and evidence department.

Martinez photographed all of the pellets and shotgun shells, but opined that it was possible that some may have been missed. She photographed the bed in the master bedroom but did not take a full picture of the mattress from top to bottom. She photographed the inside of the kitchen door but not the outside.

Officer Troy Dickerson, forensic examiner with the New Orleans Police Department, processed Defendant’s vehicle, a two-door maroon Chevy Cavalier, following Defendant’s arrest. Inside the vehicle Dickerson found a Savage Arms twelve-gauge shotgun, model ninety-four, bearing serial number P, 440473; one unspent shell was inside the weapon. Dickerson photographed the interior and exterior of the vehicle and all evidence found inside the vehicle.

Dickerson identified a photograph of the shotgun found inside Defendant’s vehicle showing the unspent shell inside the barrel.

Detective Desmon Pratt of the New Orleans Police Department Homicide Division arrived at the scene, where his supervisor informed him that a black female was lying outside of the residence and a second victim had been transported to the hospital. He learned later that the second victim died in surgery. Det. Pratt spoke to the responding officers on the scene and instructed Emily Martinez to collect blood evidence, fingerprints, and to photograph the entire crime scene. Only Sgt. Smith was inside the house because he had rendered assistance to the male victim. The EMS responders entered through the front door; no one entered the side door to the house. Inside the master bathroom, Det. Pratt found shotgun wadding, and he observed blood evidence in the living room, hallway, | ^master bedroom, bathroom and two rooms off to the right of the master bedroom/bathroom. The female victim was found outside on the grass in front of the residence. Next to a parked vehicle in the driveway of the residence, Det. Pratt found shotgun wadding and a double ought buck shotgun shell.

Following an interview with Cierra Williams, Det. Pratt developed Defendant as the prime suspect. He radioed a description of Defendant’s vehicle to the New Orleans Police Department, Jefferson Parish Sheriffs Office and the Louisiana State Police. The day following the murders, Det. Pratt received information that defendant obtained gas money to travel either to Mississippi or Baton Rouge to evade capture. Det. Pratt contacted the Slidell Police, the St. Tammany Parish Sheriffs Office, Kenner Police, LaPlace Police, the Baton Rouge Police, and the Troop “B” State Police to be on the look-out for a vehicle fitting the description of Defendant’s car. Subsequently, Det. Pratt was notified that Defendant had been arrested near the 1-10 twin spans near Oak Harbor as he drove east. Det. Pratt relocated to the location of Defendant’s arrest. Det. Pratt informed Defendant of his Miranda rights, placed him under arrest, and transported Defendant to New Orleans Police Department Headquarters. A red shirt, black shorts and Reebok tennis shoes were confiscated from Defendant; Defendant admitted that he wore the clothes when he shot the victims. Inside Defendant’s car, Det. Pratt observed a shotgun on the passenger seat. He secured the vehicle, and ordered the crime lab to process, photograph, and tow the vehicle to the crime lab.

Det. Pratt testified that he arrived at the crime scene around 11:28 p.m. He performed a search of both crime scenes and ordered that they be secured. Inside the hall bathroom, Det. Pratt found seven double-ought buck pellets. Fragments of |3shotgun shell wadding were found in the master bedroom. Sergeant Smith informed Det. Pratt that the male victim told him that he had been shot twice. Det. Pratt received information from family members and others, who wanted to remain anonymous, that Defendant was planning on fleeing the area. Defendant’s grandfather told Det. Pratt that Defendant was planning on going to his girlfriend’s house in Baton Rouge. Defendant admitted that he had a girlfriend in Baton Rouge but did not state that he was planning on going there. Defendant was very cooperative when arrested. Forensic tests were positive for seminal fluid on Marilyn Green’s underwear.

Detective Decynda Barnes, assigned to the New Orleans Police Department’s cold case files, advised Defendant of his Miranda rights and provided him with a waiver of rights form prior to taking his recorded audio/video statement. She read Defendant his Miranda rights. Defendant acknowledged he understood his rights, and he agreed to waive his rights and give a recorded audio/video statement to Detectives Barnes and Pratt. During the interview, Defendant requested to speak to his mother; his mother was contacted, and she agreed to come and speak to Defendant. Following the conclusion of the statement, Det. Barnes stepped out of the interview room. Defendant’s mother and sister entered the interview room. Within minutes she returned to ask Defendant about his clothes. The recording device was still operating. Defendant’s conversation with his mother was recorded (the recorded conversation was played for the jury).

Detective Barnes did not participate in any other aspects of the homicide investigation. During the interview, Defendant told Det. Barnes that he “snapped” because he “had pressure on him from all different angles, ... stuff wasn’t going | mright” ... and “his marriage was bad and he caught somebody in the house sleeping with his old lady ...”

Detective Orlando Mathews, homicide detective with the New Orleans Police Department, assisted Detective Pratt with the investigation. On the Sunday following the murders, Det. Mathews conducted a photographic line up with a female witness who saw a man leaving the crime scene the night of the murders. She identified Defendant as the man that she saw and signed and dated the back of Defendant’s photograph. The witness was not threatened or coerced and was not under the influence of any narcotic or alcohol.

Det. Mathews testified that he may have been the person who turned on the video and audio equipment during Defendant’s interrogation. He explained that there is no set rule on how the equipment is operated. He testified that it is not protocol to turn the equipment off after an interview if the suspect remains in the interrogation room because there is no expectation of privacy during interrogation. He stated that he was not the last detective in the interrogation room, and he did not recall if the equipment remained on during Defendant’s conversation with his mother.

Officer Leary testified that the pellets recovered from the crime scene were single ought and double-ought buck shotgun pellets. He opined that a person shot with twenty single or double ought buckshot pellets could possibly have been shot more than one time or with more than one shell. Off. Leary examined the shotgun, a Savage Arms twelve gauge crack barrel that was seized from Defendant’s car. It contained one unspent shell in the barrel. Off. Leary opined that to load the gun, a release lever must be pushed to the right and the barrel pulled down. Once fired, the empty shell must be removed by hand and another shell inserted into the barrel.

| nFor shotgun shell wadding to penetrate a victim’s body, the victim would have to be shot at close range from between ten or twelve feet away depending on the length of the barrel. Off. Leary also examined four spent copper coated lead shotgun pellets recovered from 18649 Cavalier Drive which were consistent with double ought buck size shotgun pellets, one spent copper coated lead shotgun pellet recovered from the body of Lionel Nelson which was consistent with double ought buck size shotgun pellets, five copper coated pellets too deformed for size determination, twenty copper coated lead shotgun pellets which were consistent with single ought buck size shotgun pellets, and one plastic shotgun wad recovered from the body of Marilyn Green.

Off. Leary stated that the pellet removed from the body of Lionel Nelson was not a single slug but was consistent with double ought buckshot. Off. Leary was not aware that any single slugs were found at the crime scene. He explained that the difference between single and double ought buckshot is the size of the pellets. Off. Leary stated that it was possible for a shotgun shell to contain more than the usual fifteen pellets if the shell was recycled using a reloading machine. Off. Leary was unaware of any pellets that may have struck a parked vehicle or a neighbor’s house. He opined that a person could be shot once with a shotgun and still sustain more than one wound because of the spray of the pellets.

On April 26, 2009, Defendant requested money from his friend, Orgie Collins. Defendant acknowledged that he knew about the murders, and he told Collins that after he ate breakfast he was going to turn himself in to the police.

Defendant drove to Collins’s home at about 10:00 a.m. the day following the murders. Defendant asked Collins if he heard about what happened the previous day. Collins answered that Defendant’s mother had informed him of the shootings. 112Pefendant told Collins that he might drive to Baton Rouge before turning himself in to the police.

Hilda Green, Defendant’s mother, testified that Defendant loved Marilyn. In March 2009, Defendant moved into her home after he separated from Marilyn. Defendant had several rifles and a handgun. Green testified that Defendant’s guns were used for hunting.

Green testified that Defendant was never violent and was never in trouble. Green was surprised that Defendant would commit such a crime. Prior to Defendant moving into her home, Green saw the couple at Christmas and New Year’s Day when they came for dinner. Defendant and Marilyn were still seeing each other and communicating as late as February 2009. She remembered that Defendant and Cierra went out together for Mardi Gras.

Defendant, Jackie Green, testified to the following:

He met Marilyn Green in 1993; they began dating in 1994, and Defendant moved into her apartment in the B.W. Cooper Housing Development. Marilyn Green’s daughter, Cierra, was four or five years old. Defendant and Marilyn Green were married in February 2001, and he raised Cierra as his own daughter. In December 2001, the family moved into the home at 13649 Cavalier Drive. The first few years the marriage was wonderful. The couple did things together and were trying to make it like everyone else. Defendant began having financial trouble in 2004 when Marilyn quit her job at Hibernia Bank. Defendant’s oil field job slowed down, and he only worked three days per week. He stated that, “things were kind of loaded on me at that time.” He admitted that during an argument with Marilyn over a cell phone, he broke a window pane, and Marilyn called the police. 11sThe police told him to leave the home for the night. He went to his mother’s home. He and Marilyn discussed their problems and decided to move forward.

Eventually, the couple filed for bankruptcy. Marilyn was very upset about the bankruptcy, and a lot of tension developed between the couple. The couple sought marriage counseling from their pastor. They were told that the main problem was communication and were instructed on how to work through their problems. When things got tough at home, Defendant went hunting with his father in Mississippi. Defendant had a number of guns at his home on Cavalier Drive and at his mother’s home. The guns at his mother’s house consisted of a twenty-two caliber rifle and a small shotgun. These guns were old and were hardly ever used.

In February 2005, his marriage deteriorated again due to financial problems. Marilyn refused to sleep with him; he left the home but continued to contact Marilyn and Cierra. Defendant would often enter the family home, look around, and leave Marilyn money to pay bills. Following Hurricane Katrina, he evacuated to Florida. Cierra and Marilyn evacuated to Mississippi. Defendant returned to New Orleans in November 2005. He moved in with his mother and Orgie Collins in a three bedroom leased house in Metairie. At that time he received divorce papers from Marilyn. Family members encouraged Defendant to agree to the divorce; he signed the papers and returned them to Marilyn. Subsequently, he moved into a FEMA trailer on Monroe Street. Cierra would often ask him to visit because she missed him.

In November 2006, Marilyn contacted Defendant to help her with a flat tire. They began dating again, and Marilyn asked Defendant if she could move into the FEMA trailer with him. Because he loved Marilyn and Cierra, he agreed to let them live with him; they moved back in with Defendant on a permanent basis in | ^January 2007. The marriage was wonderful, and Defendant opened his own cabinet business. Marilyn worked as a part-time dispatcher and in Defendant’s business. The couple talked about getting remarried. In September 2007, the family moved back into the renovated Cavalier Drive home. Defendant described his relationship with Marilyn as “real fine, real fine.”

Following Hurricane Gustav in 2008, Defendant’s cabinet business began to slow down. In November 2008, Defendant closed the business, hoping that he could reopen later. Financial problems still plagued the couple, but their relationship was stable. Defendant sold his inventory to pay the bills. In January 2009, the couple was two months in default of their mortgage. Marilyn told Defendant that they needed $5600.00 or the bank would foreclose. Defendant borrowed money from his mother, and Marilyn borrowed money from her father to pay the late mortgage payments. The couple’s relationship continued to deteriorate. Marilyn moved into Cierra’s bedroom. In March 2009, Marilyn asked Defendant to leave the home. Defendant took some clothes and checked into a motel. He did not believe the separation was permanent because he and Marilyn had separated before and always got back together. Marilyn never told him that she did not want him anymore. He denied that Marilyn asked him for the house keys. He admitted that he would return to the home often, but would call Marilyn and tell her that he was coming over. They would speak briefly and then he would leave. On one occasion prior to the murders, Marilyn contacted Defendant and told him that he had some mail at the house. Defendant drove to the house to retrieve his mail. He tried to call Marilyn, but she did not answer the phone. When he arrived at the house, he did not see Marilyn’s or Cierra’s vehicles. He entered the house, retrieved the mail from Cierra’s bedroom, got a drink from the 11firefrigerator and left the house. Later, he returned to the house because Marilyn left a cell phone message that he had left the door open. He denied leaving the door open, and denied telling Cierra “That B-, I’m going to kill her” He also denied following Marilyn and Cierra in his car .on the night of April 10, 2009. On April 15, 2009, he went to the house. When Marilyn opened the front door, he saw a man sitting in the kitchen. He stated that he “kind of barged in the house ...” and asked Marilyn who the man was. The man got up, asked what was going on, and displayed a pistol he had in his waistband. Marilyn told Defendant that the man was a contractor; Defendant left the house. Marilyn never told Defendant that she was dating anyone or that she did not want him in her life anymore.

On April 25, 2009, at approximately 10:00 p.m., he drove to the Cavalier Drive house because Marilyn asked him to remove an old car he had in the backyard. He did not call Marilyn because his cell phone had been disconnected. When he arrived at the house, he saw Cierra’s vehicle in the driveway. The lights were on in Cierra’s bedroom and the guest room. He rang the doorbell; no one answered. When he started walking back to his car, he saw the light go off in the guest bedroom. As he backed out of the driveway, he saw the light in Cierra’s bedroom go off. Defendant turned around, walked back to the house and rang the doorbell; no one answered. Defendant went to the side door and looked inside. The living room was dark. He walked back to the front of the house and looked into Cierra’s bedroom; he heard what sounded like Marilyn’s voice.

Defendant tried to open the front door with his key; the door would not open. Using his key, Defendant entered the house through the side door. The kitchen light was on. Defendant walked to Cier-ra’s bedroom and pushed the door open. When he turned on the lights he saw Marilyn having sex with the male | ¶ ¿victim, Lionel Nelson. Nelson yelled, “Get the f- - - out of here you fat mother f--.” Defendant testified that his “mind snapped”. He went into the master bedroom and retrieved a shotgun from under the mattress. The shotgun shells were in a pouch on the butt of the gun. Lionel Nelson ran into Cierra’s bathroom and locked the door; Marilyn ran into the living room. When she saw Defendant, she ran to the front door; Defendant grabbed her and asked, “... why you doing this? Why you got this guy in the house? What is going on here?” Nelson came out of the bathroom and came toward Defendant; Defendant fired two shots, striking Nelson. Marilyn ran out the front door. Defendant reloaded the shotgun and shot Marilyn. Defendant described the entire shooting as taking about three minutes. Defendant left the scene and drove to Gulfport, Mississippi where he pulled into a truck stop. He testified that he “... just drove, was disoriented, you know. I wasn’t thinking straight, you know.”

Early the next morning, Defendant drove to Slidell, checked into a motel, and telephoned his father. Around 10:00 a.m., he left the motel and drove to his grandmother’s house and Orgie Collins’s house to get money for gas. He intended to return to the motel and turn himself in to the police the next day. As he approached the Highway 11 exit, a police officer in a marked unit began to follow him. When he crossed the twin span he stopped on the shoulder of the road, removed the empty shell from the shotgun, reloaded the shotgun and tried to kill himself; the gun did not fire. Defendant exited the car, put his hands in the air, and lay on the ground. He was handcuffed, arrested, and transported to police headquarters where he was asked if he wanted to give a statement; he agreed to give a statement. He denied knowing that the statement was being videotaped, and he did not know that his conversation with his mother was being videotaped. He 117testified, “I was still out of my mind. I was saying stuff that I normally — that’s not me. That’s not my character. That’s not me. That’s not my character. That’s not what I’m made of. This ordeal had me hyped up. I didn’t calm down until about two weeks later after I was locked up in Parish Prison. I didn’t really know where I was. I was trying to give them a statement. I said some things on videotape that I shouldn’t have, that I didn’t mean nothing by it, just talking.” He testified that he regretted what he did and did not go to the house that night to hurt Marilyn or anyone else. He denied ever threatening Marilyn and said that he still loved her.

Defendant admitted that he left Marilyn on the front lawn after he shot her. He drove to Mississippi, Slidell and back to his mother’s house but did not turn himself in to the police. He insisted that he intended to turn himself in, but needed to get away for a little while before he made the decision. He admitted that Marilyn was no longer his wife when he killed her. He believed the man he saw in the kitchen on April 15, 2009, was the male victim, Lionel Nelson. He told his mother and the police that he intended only to hit Nelson with the butt of the shotgun, but admitted that he loaded the shotgun and shot Nelson. He admitted that he told his mother that he gave “that b-a dose”, “knocked fire from her”, and would have killed Cierra if she had been in the house.

Defendant testified that he did not mean it when he said that he would have killed Cierra, and if she had been there, the shootings would not have happened.

ERRORS PATENT

A review for errors patent reveals none.

SUFFICIENCY OF EVIDENCE

| lsDefendant argues that the verdicts of second-degree murder are “irrational” because the mitigating factors of “sudden passion” or “heat of blood” introduced at trial only support verdicts of manslaughter.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1309-1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

A fact-finder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. White, 28,-095 (La.App.2d Cir.5/8/96), |19674 So.2d 1018.

Conflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La.App. 4 Cir.1989). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La.1984).

Defendant was convicted of two counts of second-degree murder, which is defined in pertinent part as: “the killing of a human being: 1) when the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989).

The determination -of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975). In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia; State v. Huizar.

Pursuant to La. R.S. 14:31(A)(1), manslaughter is:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce aj^homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

It has long been held that “heat of blood” and “sudden passion” are not elements of the offense of manslaughter but are mitigating circumstances which may serve to reduce the grade of a homicide. State v. Tompkins, 403 So.2d 644 (La. 1981).

The record reflects that while Defendant and his ex-wife, Marilyn Green, lived together on and off prior to the shootings, they had been divorced for approximately four years. Defendant’s testimony, as well as that of his step-daughter, Cierra Williams, reflects that the relationship between Defendant and his ex-wife was unstable for many years prior to the murders. They engaged in violent verbal arguments, and Defendant made verbal threats to Marilyn. Fifteen days before the murders, Defendant, in a cell phone call, verbally threatened to kill Marilyn. During that incident, Defendant, unprovoked, followed Cierra and Marilyn in his car, bumping the back of the car and demanding to speak to Marilyn on Cierra’s cell phone. When Marilyn refused to speak to him, he told Cierra that he was going to kill the “b-”. Williams reported the incident to the police, but Defendant denied the threat. This incident, which occurred shortly before the murders, indicates that Defendant was capable of engaging in violent actions directed at Marilyn. Cierra testified that her mother asked Defendant for his house key because she did not want him entering the house; Defendant denied this. Defendant testified that he would always ring the doorbell before entering the house. However, Defendant contradicted this testimony by admitting that he entered the house using his key to retrieve his mail when he thought no one was home.

121 On the night of the murders, Defendant heard Marilyn engaging in sex, and by her turning the lights off, he was aware that she did not want to answer the door. Disregarding the obvious, Defendant, uninvited, used his key to enter the house through the kitchen door. He knew where Marilyn and Nelson were and what they were doing; he went directly to the bedroom where he heard Marilyn’s voice. Accordingly, it was not unreasonable for the jury to conclude that Defendant was not suddenly surprised when he saw the victims engaged in sexual intercourse. Furthermore, Defendant admitted that the shotgun was not loaded when he retrieved it from under the mattress, and that the shells were inside of a pouch attached to the butt of the gun. Further, the firearms testimony indicated that the murder weapon had to be opened and loaded one shell at a time. Each spent shell had to be removed before another live shell was inserted. During the time it took Defendant to load the shotgun, Lionel Nelson had sufficient time to dress and lock himself inside the bathroom in the hall; Marilyn had time to go into the living room area, dress, break free of Defendant’s grasp, open the front door, and attempt to flee from the house. Nelson was shot when he exited the bathroom after hearing Marilyn scream; Marilyn was shot after fleeing from the house. Defendant testified that he only shot each victim once. However, prior to being transported the hospital, Nelson told Detective Smith that he was shot twice. Also, the forensic testimony indicated that each victim was shot twice at close range. Nelson was shot once in his left thigh and once in his chest, and Marilyn was shot once in the back of her arm and once in her chest. Defendant had to open the shotgun a minimum of four times, load it four times, and unloaded it four times to shoot the victims. Thus, Defendant had sufficient time to reflect on his actions. The record does not support Defendant’s contention of provocation and that he “snapped.” |22The evidence presented was sufficient to prove that Defendant had the specific intent to kill or to inflict great bodily harm before entering the house. The verdicts indicate that the jury rejected Defendant’s version of the facts. We find that this assignment of error is without merit.

ADMISSIBILITY OF EVIDENCE

Defendant argues that the trial court erred in admitting into evidence the video/audio recording of the conversation with his mother in violation of his right to privacy and the Louisiana Electronic Surveillance Act, La. R.S. 15:1301, et seq. relative to the disclosure of wire, electronic, or oral communications.

An appellate court will only review issues that were submitted to the trial court. Rule 1-3, Uniform Rules, Courts of Appeal. See also C.Cr. P. art. 841. As a corollary to the contemporaneous objection rule, the error must have been pointed out to the trial judge, and a defendant is limited on appeal to grounds for the objection articulated at trial. State v. Jackson, 450 So.2d 621 (La.1984). Defense counsel failed to object to the admission of the recorded statement between Defendant and his mother as a violation of the Louisiana Electronic Surveillance Act either in the motion to suppress the statement, at the motion to suppress hearing, or at trial. Defense counsel’s questioning of the witnesses addressed Defendant’s reasonable expectation of privacy, not a surreptitious recording of Defendant’s conversation. Accordingly, this issue has not been preserved on appeal.

LjjEven assuming, arguendo, that the recorded conversation with his mother should have been suppressed, the error is harmless because the trial court’s actions amounted to no more than harmless error that would not have changed the outcome of the trial. The jurisprudence provides that a trial error does not provide grounds for reversal of a defendant’s conviction and sentence unless it affects substantial rights of the accused. La. C.Cr.P. art. 921; State v. Johnson, 94-1379, pp. 16-17 (La.11/27/95), 664 So.2d 94, 101-102. The test is whether there is a reasonable possibility the error might have contributed to the conviction and whether the court can declare a belief that the error is harmless beyond a reasonable doubt. State v. Juniors, 2003-2425, p. 54 (La.6/29/05), 915 So.2d 291, 331. The reviewing court must find that the verdict actually rendered was surely not attributable to the error. Johnson, 94-1379, pp. 16-17, 664 So.2d at 101-102. In the instant case, the only outcome unfavorable to Defendant would have been that the jury, after hearing Defendant’s conversation with his mother, did not believe Defendant “snapped” to support the responsive verdicts of manslaughter. As previously addressed, Defendant’s conviction rests on sufficient evidence even in the absence of the recorded conversation with his mother, to support the instant convictions. Accordingly, the admission of Defendant’s recorded conversation with his mother cannot reasonably be said to have contributed to the verdicts.

In State v. Davis, 96-1659 (La. App. 4 Cir. 11/27/96), 684 So.2d 540, this Court addressed a suspect’s privacy rights pursuant to Art. I, Section V of the Louisiana Constitution as follows:

“... the Louisiana Constitution only protects against unreasonable invasions of privacy. The basic test for determining whether a person’s constitutional right to privacy has been violated is 1) whether there was a reasonable expectation of privacy and 2) whether society |24⅛ ready to accept that expectation of privacy as reasonable.” (citation omitted).
In State v. Hussey, 469 So.2d 346 (La. App. 2d Cir.1985), two passengers were placed in the backseat of a police car to be driven to the police station because they and the driver were too intoxicated to move their vehicle off of the highway. A hidden tape recorder recorded their conversation during which they discussed stolen items that were in the vehicle they were driving. Based on the tape recording, the passengers were arrested and charged. The appellate court upheld denying the defendants’ motion to suppress the tape recording because the defendants did not have a reasonable expectation of privacy while in the rear seat of the police car.
Davis had less of an expectation of privacy. He was not just a passenger in a police care, but had been placed under arrest and given his Miranda rights. Once arrested, the police car became Davis’s temporary jail in which he had no reasonable expectation of privacy.

In the instant case, Defendant agreed to give a recorded audio/video statement to the police as to the events leading to the murders. He spoke to his mother in the same interrogation room where he gave his recorded confession to the police. The video camera was on the wall, and none of the recording equipment had been removed from the room. Defendant was not told that his conversation with his mother was private. Detective Barnes briefly stepped out of the room, but returned within minutes to ask Defendant about his clothes. Therefore, no indicia of privacy were present. Detective Barnes testified that Defendant knew the video camera was on because he kept looking at it during the interview. Furthermore, Defendant waived his Miranda rights and had already confessed to the murders. As in Davis, the interrogation room became Defendant’s temporary jail in which he had no reasonable expectation of privacy while speaking to his mother. Defendant’s argument that he had a reasonable expectation of privacy is without merit.

^DECREE

We find that the evidence presented was sufficient to prove that Defendant had the specific intent to kill or to inflict great bodily harm before entering the house, and the verdicts indicate that the jury rejected Defendant’s version of the facts. Further, we find that the trial court did not err in admitting into evidence the video/audio recording of Defendant’s conversation with his mother. Defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED

      . La. R.S. 15:1303 provides in pertinent part:
      (A) Except as otherwise specifically provided in this Chapter, it shall be unlawful for any person to:
      (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication....


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Edward P. WILLIAMS.
    No. 2010-KA-1023.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

hThe State of Louisiana charged Edward Williams by bill of information with one count of violating La. R.S. 40:967(0(2), possession of cocaine. The defendant appeared before the trial court for arraignment and pled not guilty to the charge. On March 11, 2009, the trial court heard the defendant’s motion to suppress the evidence and motion to suppress statement and held a preliminary hearing. At the close of the hearing, the trial court denied the defendant’s motions and found sufficient probable cause to substantiate the State’s charge. Subsequently, the defendant filed, and the trial court denied, a motion to reconsider the trial court’s probable cause ruling.

At a later date, the defendant appeared before the trial court and pled guilty to the charge pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The defendant waived sentencing delays, and the trial court sentenced the defendant to five years at hard labor with the Department of Corrections. Alleging that the defendant was a second offender, the State also filed a multiple bill against the defendant, to which the defendant pled guilty. The trial court then vacated its prior sentence and re-sentenced the defendant to serve seven years at hard labor.

[2The defendant filed a petition for supervisory -writs with this Court seeking a review of the trial court’s March 11, 2009, ruling. This Court granted in part the writ application allowing the defendant to file a motion for appeal into the record. State v. Williams, unpub., 2009-0693 (La. App. 4 Cir. 11/3/09). The defendant then filed a motion for appeal.

STATEMENT OF FACT

At the March 11, 2009 suppression hearing, the State elicited testimony from one witness, Officer David Barnes. Officer Barnes testified that on January 28, 2009, he was assigned to the N.O.P.D.’s First District and had the occasion to arrest the defendant near the intersection of North Dupre and Orleans Avenue. Officer Barnes testified that he and his partner were in their patrol vehicle, traveling on North Dupre towards its intersection with Orleans Avenue, and observed the defendant standing near a bicycle. Officer Barnes noted that the defendant was approximately ten to fifteen feet away from the patrol car when he first spotted him. Further, Officer Barnes explained that the defendant drew their attention because he appeared to be having trouble standing up. Officer Barnes described the defendant’s actions as follows:

He was getting off the bicycle and at first we thought he might be sick because it appeared that he was about to throw up in the street. So upon approaching him, we observed that he was more intoxicated than sick. He was— He appeared that he was at one point trying to ride away on the bicycle and was having trouble getting the kickstand down when he was putting the bicycle down.

Based on their observations, Officer Barnes and his partner stopped the defendant, concluded that he was intoxicated and arrested him for violating the municipal ordinance banning public intoxication. Municipal Ordinance 54-405. Officer Barnes testified that the defendant exhibited bloodshot eyes, smelled of [.-¡alcohol, was uncoordinated with the bicycle, and slurred his words. Further, Officer Barnes stated that he placed the defendant under arrest, instead of merely issuing him a citation, because he believed that the defendant, in his then-drunken state, could pose a threat to himself and others: “If he had decided to ride that bicycle and stumble on Orleans Avenue and get hit by a car, it would have been my responsibility at that point because I knew he was intoxicated and let him go.”

After arresting the defendant, Officer Barnes conducted a search of the defendant’s person, finding a black plastic bag that contained five individually wrapped pieces of what later proved to be crack cocaine in the sock on the defendant’s right foot. When the testimony was concluded, the trial court denied the defendant’s suppression motions and found sufficient probable cause to substantiate the State’s charge. Subsequently, the defendant pled guilty pursuant to State v. Crosby, supra.

ERRORS PATENT

A review of the record reveals no errors patent.

DISCUSSION

In his sole assignment of error, the defendant argues that his conviction and sentence should be reversed because the trial court erred when it denied his motion to suppress the evidence where the evidence was seized in a search incident to an arrest for public intoxication, which was unlawful. The defendant bases his argument upon the assertion that the State failed to establish that he was a danger to himself or others. Accordingly, the defendant maintains that the trial court should have suppressed the seized heroin because his arrest for public intoxication was unlawful. The State disagrees, arguing that the trial court ruled correctly as Officer Barnes’ testimony shows that at the time of the defendant’s arrest, the|4officers reasonably believed that the defendant may have posed a danger to himself or others.

The State has the burden of proving the admissibility of all evidence seized without a warrant. La. C.Cr.P. art. 703(D). Trial courts are vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Oliver, 99-1585, p. 4 (La. App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and the district court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 2001-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218 (citing U.S. v. Seals, 987 F.2d 1102 (5 Cir.1993), cert. denied 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116.)

Search incident to arrest is a long recognized exception to the warrant requirement. State v. Parker, 2006-0053, p. 3 (La.6/16/06), 931 So.2d 353, 355. When a law enforcement officer has probable cause to believe that a person has committed a crime, he may place that person under arrest. Incident to that lawful arrest, the officer may legally conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. State v. Robertson, 2002-0156, p. 7 (La.App. 4 Cir. 2/12/03), 840 So.2d 631, 636. Probable cause to arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Wilson, 467 So.2d 503, 515 (La.1985).

|fiIn the present ease, the complained of search occurred incident to the defendant’s arrest for violation of New Orleans Municipal Code 54-405, which provides:

It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.

The defendant cites to two cases emanating from this Court in support of his argument, State v. Smiley, 99-0065 (La.App. 4 Cir. 3/3/99), 729 So.2d 743 and State v. Hawkins, 2005-0810 (La.App. 4 Cir. 1/11/06), 923 So.2d 763. In State v. Smiley, officers patrolling the French Quarter when an unknown man approached them and reported that a man in a nearby truck had just tried to sell him drugs. Smiley, 99-0065, 729 So.2d at 744. While observing the truck, they noticed the defendant and two other people leave the truck and stagger into a nearby bar. Id. The unknown man identified Smiley as the man who tried to sell him drugs. Id. The officers called for backup, and within five minutes four officers entered the bar and eventually located Smiley. Id. Smiley agreed to accompany the officers outside. Id. The officers noticed Smiley was having difficulty making his way out of the bar, staggering and weaving. Id. One officer also got close to Smiley as he exited the bar and smelled alcohol on Smiley’s breath. Id. When they reached the sidewalk, the officer placed Smiley under arrest for public intoxication, purportedly to keep him from driving away in the truck. Id. The officer testified that as one officer was pulling items out of Smiley’s pants pocket, a bag of what was later found to be cocaine came out of his pocket. Id. The trial court found no probable cause for Smiley’s arrest for public intoxication and suppressed the evidence.

|fiThis Court concluded that although the officer had reasonable cause to stop the defendant based on the fact that a citizen had identified him as the man who had tried to sell him drugs, there was not sufficient grounds for arrest. Smiley, 99-0065, pp. 4-5, 729 So.2d at 746.

The officer testified that he arrested the defendant for public intoxication to prevent him from driving away in his truck. Smiley, 99-0065, pp. 4, 729 So.2d at 746. This Court discussed the fact that mere “public intoxication” was not prohibited by municipal ordinances or state statutes. It is only when he may endanger himself or other persons or property. Municipal Ordinance 54^405. This Court further noted the testimony did not establish any danger and even though the officer said he did not want him driving, there was no indication he intended to get behind the wheel. Id. “Therefore, at the time the officers placed the defendant under arrest, there was no probable cause to arrest him. Thus, the subsequent search, which produced the cocaine, could not be validated as a search incident to his arrest.” Id.

In State v. Hawkins, this Court reversed a defendant’s conviction for possession of cocaine, finding the underlying arrest for public intoxication illegal. Hawkins, 2005-0810, 923 So.2d 763. Specifically, officers on patrol observed Hawkins, “stumbling, staggering down the sidewalk” and they thought she “appeared to be heavily intoxicated.” Id., pp. 9, 923 So.2d at 768. They stopped to see if the defendant was all right. Id. She exhibited slurred speech, her motor skills were impaired, and she also reeked of alcohol. Id. One of the officers testified that they “knew right off the bat that she was highly intoxicated.” Id. The officer further testified that the defendant made no statements except that she questioned |7the officers about what she had done, stating “I’m not drunk. I only had a couple of beers.” Id.

This Court found the defendant had been illegally arrested because the evidence in the record did not support the officers’ contention that Hawkins was a danger to the public. This Court stated that her mere intoxication was insufficient to warrant an arrest, citing to Municipal Ordinance 54-405 and Smiley.

More recently, the Supreme Court has addressed the issue in State v. Parker, 2006-0053 (La.6/16/06), 931 So.2d 353. The facts in Parker were as follows:

Police officers, while on routine patrol, observed a woman attempting to open the locked door of an obviously closed business. The business was closed even though it was mid-morning on a weekday. The officers approached the woman and asked if she worked there, to which she replied in the negative. The officers observed that her eyes were bloodshot and that she was incoherent and unsteady on her feet. They asked her for identification and if she was on medication. She stated that she did not have any identification and that she had smoked crack cocaine earlier. Given the defendant’s statement and her condition, the officer arrested her for public intoxication. As they were conducting a search incident to arrest, the officers discovered a cigarette pack containing crack cocaine.

2006-0053, p. 1, 931 So.2d at 354.

The trial court granted the defendant’s motion to suppress, finding that the officers lacked probable cause to arrest. This Court affirmed in an unreported decision. The State sought writs. The Supreme Court granted writs and reversed.

| sLater, in State v. Wells, 2008-2262 (La.7/6/10), 45 So.3d 577, the Supreme Court again addressed the issue of arrest pursuant to New Orleans Municipal Code 54-405. According to the testimony, police officers viewed the defendant staggering and he appeared to be intoxicated as he proceeded along the sidewalk. Id., 2008-2262 p. 2, 45 So.3d at 579. He was arrested and searched. Two pieces of crack cocaine were discovered in defendant’s pants pocket. Id. He claimed he had purchased the drugs from someone at a nearby gas station. Id. The seller was never identified. Id. The defendant was charged with possession of cocaine and pled not guilty. Id. 2008-2262 p. 3, 45 So.3d at 579.

The defendant filed a motion to suppress his statement and the physical evidence. At the hearing on the motion to suppress, the arresting officer testified that:

... he arrested defendant because he “appeared very intoxicated.” Defendant was in a “very high-crime neighborhood.” According to the officer’s testimony, the area was plagued with “a lot of drug activity, ... shootings and homicides [and] robberies.” Officer Parker testified he wanted to remove him from the area for defendant’s own safety. Additionally, Officer Parker stated, “I didn’t want him to wander off into traffic and get hit by a car, ... to get robbed.”

2008-2262, p. 3, 45 So.3d at 580.

Based upon the officer’s testimony, the trial court denied the motion to suppress the evidence, specifically finding the officer acted “in good faith.” The defendant appealed to this Court, which vacated the trial court’s judgment, and reversed the defendant’s conviction and sentence. State v. Wells, 2008-0211 (La.App. 4 Cir. 8/20/08), 991 So.2d 583. This Court analyzed the case under Hawkins and Parker and found that the evidence presented did not conclusively show that appellant was incapacitated to such an extent that he may endanger himself. Wells, 2008-0211, pp. 7-8, 991 So.2d at 586-587.

|flThe State filed writs, the Louisiana Supreme Court granted certiorari, and reversed this Court. Wells, 2008-2262, p. 10, 45 So.3d at 584. In reversing this Court, the Supreme Court concluded that this Court first erred by substituting its own credibility evaluations for those of the trial court, which specifically found the testifying officer to be in good faith. Id. Further, the Supreme Court in Wells noted that this Court erred by requiring the State to show conclusively that the defendant violated the applicable municipal ordinance.

In conclusion, the Supreme Court, reiterating that intoxication alone is not sufficient to establish a violation of the ordinance, declared that each case must be determined on its own set of facts and circumstances. Wells, 2008-2262, p. 10, 45 So.3d at 583-584. More specifically, the trial court must determine whether the officer acted in good faith and has articulated sufficient facts to establish probable cause to arrest. Id. “The trial court’s evaluation should not be overturned absent an abuse of the great discretion afforded the trial court’s ruling.” Id.

In light of the Supreme Court’s recent opinions in Parker and Wells, we are directed to evaluate whether the arresting officer acted in good faith and has articulated sufficient facts to establish probable cause to arrest. When making that determination, this Court must give deference to the trial court’s factual findings. Although the trial court in the present case did not specifically note that it found | Tnthe arresting officers in the present case to be in good faith, it would be reasonable to presume such a finding from its ruling.

At the hearing, Officer Barnes provided detailed testimony regarding the defendant’s physical and mental capabilities at the time he was initially questioned. He was confident that the defendant was intoxicated and posed a threat to himself or others. Under the facts and circumstances of this case the trial court was within its discretion when it denied the motion to suppress.

For the reasons discussed, the trial court’s ruling denying the motion to suppress is hereby affirmed.

AFFIRMED

      . In a per curiam opinion the Supreme Court stated:
      The state met its burden of showing the officers had probable cause to arrest the defendant for violation of the ordinance. At the hearing, the officer testified that the defendant was incoherent and unsteady on her feet. Her eyes were bloodshot and in response to their question of whether she was on medication, she replied that she had smoked crack cocaine. Given these facts, the trial judge erred in finding the police did not have probable cause to arrest the defendant for the offense of public intoxication. The officers had probable cause with respect to each element of the offense: the defendant was in public, manifestly under the influence of alcohol or drugs not therapeutically administered, to the degree that she endangered herself or property. Parker, 2006-0053, p. 2, 931 So.2d at 355.

      . The Supreme Court wrote:
      In State v. Pham, 01-2199, p. 6 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 219-220, the court stated: "For an arrest, the law does not require that 'reasonable cause to believe’ be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person's guilt. The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt....”

        Wells, 2008-2262, pp. 6-7, 45 So.3d at 582.


author: JAMES F. McKAY III, Judge.

text:
    SUCCESSION OF Lawrence Trevor WINCHESTER, Jr.
    No. 2010-CA-1300.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 2011.
    Darryl Harrison, Law Office of Bernard L. Charbonnet, Jr., Ike Spears, New Orleans, LA, for Appellant, Nicholas Russell.
    Carol Gaston, Marrero, LA, for Appel-lee, Succession of Winchester.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

|,In this filiation action, the plaintiff, Nicholas Russell, appeals the trial court’s maintaining of the exception of prescription filed by the defendant, Succession of Lawrence Trevor Winchester, Jr. We affirm.

FACTS AND PROCEDURAL HISTORY

Lawrence Winchester, Jr. died on September 27, 2008. He was married only once to Lois Courseault Winchester and they had five children. However, Mr. Winchester had an intimate relationship with Debra Russell in February and March of 1985. Debra Russell gave birth to Nicholas Russell on December 23, 1985. A DNA test prior to Mr. Winchester’s death demonstrated that there was a 99.998% probability that he was Mr. Russell’s father.

On July 19, 1991, Mr. Winchester executed a statutory will which left his estate to the five children of his marriage. Succession proceedings were instituted on October 16, 2008. Two weeks later, Mr. Russell presented to the succession results of the paternity test. On November 13, 2008, the succession representative filed a supplemental affidavit of heirship acknowledging the test result.

lijOn September 29, 2009, Mr. Russell commenced a filiation action in a separate proceeding. The estate filed exceptions of prescription, no cause of action, and no right of action. On November 19, 2009, the trial court granted the exception of prescription and deemed the remaining exceptions moot. Mr. Russell moved for a new trial/reconsideration of the judgment which was granted. However, on June 3, 2010, the trial court again sustained the estate’s exception of prescription. DISCUSSION

On appeal, the plaintiff raises the following assignments of error: 1) the district court erred in ruling that the estate was not put on notice of an additional forced heir in the Succession of Mr. Winchester; and 2) the district court erred in ruling that Mr. Russell’s petition of filiation did not relate back to the original filing. In essence, the issue before this Court is whether or not Mr. Russell’s claim for filiation has prescribed.

Nicholas Russell filed his petition under current La. C.C. art. 197. La. C.C. art. 197 was enacted on June 29, 2005, replacing former La. C.C. art. 209. La. C.C. art. 197 provides as follows:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

La. C.C. art. 197.

Former C.C. art. 209, which was in effect on Mr. Russell’s nineteenth birthday, provided in part as follows:

|SB. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever occurs first. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

Former La. C.C. art. 209.

Under both of these articles, Mr. Russell’s petition for filiation is prescribed on its face. However, Mr. Russell argues that his filiation petition should be allowed to relate back to the original petition filed by the defendant in a separate proceeding. There is no basis under the law for this argument. La. C.C.P. art. 1151 provides in part:

A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

La. C.C.P. art. 1151.

|4Mr. Russell also argues that he should have been made a party to the succession proceeding. However, he did not take the requisite action to qualify as an heir. Therefore, he had no right to participate in the succession. See Succession of James, 2007-2509, pp. 7-8 (La.App. 1 Cir. 8/21/08), 994 So.2d 120,125.

In the instant case, Mr. Russell waited until almost twenty-three years after his birth and one year and two days after the death of Mr. Winchester to file a petition for filiation. Mr. Russell did not take any of the required formal steps to interrupt prescription. Unfortunately for Mr. Russell, his action for filiation is prescribed under both La. C.C. art. 197 and former La. C.C. art. 209.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s maintaining the defendant’s exception of prescription.

AFFIRMED


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Wayne ODOMS.
    No. 2010-KA-1278.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for appellee.
    Jee Park, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

hThe State of Louisiana charged Wayne Odom with one count of possession of marijuana, second offense in violation of La. R.S. 40:966(E). He pled nolo contendere as charged, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the denial of his subsequently filed written motion to quash the bill of information. He waived all delays, and court sentenced him to one year at hard labor, suspended, and placed him on one year active probation, with fines and fees imposed. Thereafter, the court amended Odom’s sentence to delete the fines and fees.

FACTS

Because Odom pled guilty, this fact summary is taken from the gist of the police report contained in the appeal record. Police officers on patrol saw Odom riding a bicycle on the sidewalk on General Meyer Drive. The officers observed Odom weaving back and forth from the sidewalk to the road. Because riding a bicycle on a sidewalk is prohibited for someone over fifteen years of age, and because the officers believed that Odom may have been intoxicated, they stopped |?him and immediately smelled alcohol on his breath. They also noticed that his speech was slurred. The officers arrested Odom for public intoxication, and incidental to this arrest, they found a hand-rolled cigarette containing what appeared to be marijuana. The officers transported Odom to the police station where they tested the substance in the cigarette, the result of which was positive for marijuana.

DISCUSSION

ERRORS PATENT

A review of the record reveals no patent errors.

ASSIGNMENT OF ERROR

By his sole assignment of error, the appellant contends that the trial court erred by denying his motion to quash the bill of information based upon his claim that La. R.S. 40:966(E), is unconstitutional. He argues that the United State Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana Supreme Court’s ruling in State v. Brown, 2003-2788 (La.07/06/04), 879 So.2d 1276, mandate a finding that La. R.S. 40:966(E) is 1 .^unconstitutional because the statute allows the State to increase the maximum sentence to which he was exposed based upon at least one prior misdemeanor conviction for which he was not entitled to a jury trial. He acknowledges that this argument is the same as that rejected by the Supreme Court in State v. Jefferson, 2008-2204 (La.12/1/09), 26 So.3d 112. Nonetheless, he now asserts this claim for this court’s reconsideration and to preserve the issue.

In rejecting these arguments, the Court in Jefferson stated:

After reviewing the statute, the jurisprudence, and the constitutional provisions at issue, we find, contrary to the conclusion of the district court, that LSA-R.S. 40:966(E)(2) does not suffer from a constitutional infirmity. For the reasons set forth, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use of a prior valid, fair, and reliable conviction of a misdemeanor, obtained against an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Accordingly, we reverse the judgment of the district court granting the defendant’s motion to quash and declaring LSA-R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.

Jefferson, 2008-2204 at pp. 1-2, 26 So.3d at 113. The Court acknowledged that in Ap-prendi the U.S. Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-2363. The Jefferson Court interpreted “prior conviction” to mean any prior conviction, whether or not the defendant had been entitled to a jury trial, noting that a defendant charged with a misdemeanor “is entitled to all the procedural protections available to a defendant in a felony prosecution, with the exception of the right to a jury trial, which the 14U.S. Supreme Court has determined is not essential to fair and reliable fact finding in a misdemeanor case involving a petty or non-serious crime. Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) (‘[W]e hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.’).” Jefferson at p. 12, 26 So.3d at 119. The Court then stated:

Our examination of the Apprendi line of cases convinces us that reliability, assured through proceedings that included all the procedural protections the Constitution requires for those proceedings, is the sine qua non for use of prior convictions to enhance a sentence under the “prior conviction” exception, and not the right to a jury trial. Indeed, it makes little sense to conclude, under Apprendi, that a judgment of criminality which the Sixth and Fourteenth Amendments deem fair and reliable enough, when rendered, to impose criminal penalties upon a defendant is nonetheless constitutionally inadequate for later use to establish the defendant’s recidivism.

Id. at p. 13, 26 So.3d at 120.

Moreover, as here, the defendant in Jefferson also argued that the Court’s ruling in Brown mandated that a misdemeanor conviction cannot be used to enhance a sentence. In Brown, the Court held that a juvenile adjudication for which a defendant was not entitled to a jury could not be used to enhance a subsequent felony conviction. The Jefferson Court rejected this argument, refusing to equate a misdemeanor adult conviction with a juvenile adjudication for enhancement purposes. While acknowledging that one of the factors the Brown Court relied upon to exempt the use of juvenile adjudications in multiple bill proceedings was the lack of a jury trial, the Jefferson Court emphasized that its holding in Brown was grounded on the fundamental differences between an adult 1 ¡jconviction and an adjudication of delinquency from a juvenile court, which “under the guise of parens patriae ... emphasizefs] treatment, supervision, and control rather than punishment.” Brown, 2003-2788 at 19, 879 So.2d at 1289. The Court concluded:

In the final analysis, we find that Louisiana’s statutory scheme of increased punishment for recidivist marijuana possession is in line with the constitutional principles of Apprendi and its progeny, and does not conflict with our ruling in Brown, which is limited to juvenile adjudications and the unique nature of the juvenile justice system. More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Ap-prendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana’s statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.

Jefferson at p. 20, 26 So.3d at 124.

In State v. George, 2008-1193 (La.App. 4 Cir. 3/11/10), 34 So.3d 941, this court rejected the same arguments as those raised in Jefferson.

Citing Apprendi and Brown, the appellant argues that any enhancement based on a misdemeanor conviction is unconstitutional. However, as set forth in Jefferson and George, the trial court did not err by denying the appellant’s motion to quash based upon this ground. This assignment of error has no merit.

CONCLUSION

The appellant’s argument has been rejected by both this court and the Louisiana Supreme Court. The trial court did not err by denying his motion to | r,quash based on this argument. Accordingly, we affirm his conviction and sentence.

AFFIRMED.

      . As noted by the State, apparently the appellant orally moved to quash the bill prior to pleading nolo contendere at his initial arraignment. The minute entry from the arraignment, however, is silent on the subject other than reserving Mr. Odom’s rights under State v. Crosby. As per La.C.Cr.P. art. 536, a motion to quash must be filed in writing. Technically, the court erred by considering his oral motion at that time. Although he later filed a written motion to quash raising the same claim, Art. 535A provides that a motion to quash must be filed prior to the commencement of trial (or in this case his plea of guilty). However, as also noted by the State, the basis of the motion to quash is a jurisdictional claim that the prosecution was brought under an unconstitutional statute, which as per Crosby, may be raised even when a defendant gives an unqualified plea. Thus, as the State argues, this court should address the issue rather than vacating the appellant’s plea of guilty based on his assumption that he could appeal the denial of an oral motion to quash and allowing him to raise the issue again in the proper form.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Michelle Rae SMITH v. James E. BAMBINO, Erie Insurance and Nationwide Mutual Fire Insurance Company.
    No. 2010-CA-1174.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2011.

      Robert J. Caluda, The Caluda Law Firm, Victor A. Dubuclet III, Metairie, LA, for Plaintiff/Appellee, Michelle Rae Smith.
    James Ryan III, Timothy T. Roniger, Jeffrey A. dayman, James Ryan III & Associates, LLC, New Orleans, LA, for Defendants/Appellants, James E. Bambino and Erie Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_[iDefendants-appellants, James E. Bam-bino (“Bambino”) and his liability insurer, Erie Insurance Company (“Erie”), appeal a judgment dated March 24, 2010, awarding the plaintiff-appellee, Michelle Rae Smith (“Smith”) penalties in the sum of $5,000.00 for allegedly failing to pay an agreed upon settlement amount of $85,000.00 within 30 days of the settlement pursuant to La. R.S. 22:1973.

On January 13, 2007, Smith was a passenger in an automobile being driven by Bambino when she was allegedly injured. She sued Bambino, his insurer, Erie, and her UM carrier, Nationwide Mutual Fire Insurance Company. It appears that at some point other defendants may have been added, including the driver of the other vehicle, but this appeal does hot concern the merits of the personal injury claim and the only defendants involved in this appeal are Bambino and Erie.

La. R.S. 22:1973 B(2) provides that penalties may be assessed against an insurance company, in this case, Erie, for: “Failing to pay a settlement within thirty days after an agreement is reduced to writing.”

The record contains an uncontested copy of a “Memorandum of Settlement Agreement” dated October 19, 2009, executed by and among the parties to this appeal, pursuant to a mediation. It is from this date that the plaintiff contends that the 30-day period commenced to run under La. R.S. 22:1973. In this document the ^parties agree to the terms of the settlement, and “further acknowledge and agree that, within a reasonable period of time hereafter they will enter into a formal settlement agreement, setting forth in more detail the terms of the agreement....”

In neither the trial court nor in this court did the plaintiff attempt to explain the effect of the stipulation in the mediation of October 19, 2009, that the parties would “within a reasonable time hereafter ... enter into a formal settlement agreement, setting forth in more detail the terms of the agreement....” There can be no doubt that another writing was contemplated. There is no admissible evidence in the record concerning the reason for the delay between October 19, 2009, and the time the plaintiff was paid, approximately 50 days later, and no evidence as to how much of a delay would be reasonable. We find as a matter of law that, at the very least, the 30-day delay contemplated by La. R.S. 22:1973 B(2) would not begin to run until the final settlement agreement was confected or until the expiration of “reasonable period of time” for the confection of a “formal settlement agreement” contemplated by the language of the mediation agreement.

The plaintiff cites the following cases in the “Table of Authorities” of her original brief on appeal: The Sultana Corp. v. Jewelers Mut. Ins. Corp., 03-0360 (La.12/3/03), 860 So.2d 1112; Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184; Soileau v. Allstate Ins. Co., 03-0120 (La.10/15/03), 857 So.2d 1264; Defazio v. City of Baton Rouge, 625 So.2d 733 (La.App. 1 Cir.1993); Fruge v. Classic Communications, Inc., 04-1348 (La.App. 3 Cir. 2/2/05), 893 So.2d 222; and Guilbeau v. Ramsay, 03-1402 (La.App. 3 Cir. 4/7/04), 870 So.2d 565.

Sultana involved a claim for penalties for failure to pay a settlement promptly, but in Sultana there was no agreement to prepare a formal settlement ^agreement as there was in this case and no release by the plaintiff and dismissal "with prejudice.

Theriot, supra, says that insurers must deal in good faith, but has no facts relevant to the instant case.

In Soileau, supra, the court held that there was no valid settlement agreement.

In Defazio, supra, the court specifically stated that the case was not decided on grounds of failing to pay a settlement reduced to writing within 30 days.

In Fruge, supra, the Court held that reading a settlement into the court record constitutes reducing it to writing. In the instant case, that was not done.

Similarly, Guilbeau, supra, is a case in which the settlement was read into the court record.

The defendants cite Levy v. Cummings, 25,475 (La.App. 2 Cir. 1/19/94), 631 So.2d 55. In Levy the court found that a plaintiff could not recover under La. R.S. 22:1220(B)(2) [which was later designated 22:197333(2) ] when there was a letter agreement to settle a case, providing “for the issuance of the check when the release had been signed, notarized, and returned” and this condition was not satisfied by the plaintiff. Id., 25,475 pp. 3-4, 631 So.2d at 57. The court noted the following:

An “agreement” contemplates a meeting of the minds. If there was no “meeting of the minds” on the issue of how the release and check were to be exchanged, then there was no “agreement reduced to writing” within the meaning of the statute. Accordingly, the plaintiff cannot recover under Section 1220(B)(2).

Id.

I/The Levy case is the closest one to the facts of the instant case, but is distinguishable by the fact that in Levy the preliminary agreement specifies when the check is to be issued and there is no such specific language in what the parties in the instant case agreed to preliminarily at the mediation.

In addition to the cases cited by the parties we note two others: LeBlane v. State Farm Ins. Co., 03-1522 (La.App. 3 Cir. 5/26/04), 878 So.2d 715, and this Court’s opinion in Walk Haydel & Assocs., Inc. v. Coastal Power Production Co., 98-0193, pp. 3-4 (La.App. 4 Cir. 9/30/98), 720 So.2d 372, 373-74. Both of these cases involve mediation agreements which contemplated a subsequent more formal and detailed agreement consistent with the facts of the instant case. In both cases the courts held that the mediation agreements were enforceable. However, penalties for late payment were not an issue in either of those cases.

On December 8, 2009, prior to the plaintiffs filing of the aforementioned Motion and Order of dismissal, the plaintiff executed a “Receipt, Release and Agreement to Indemnify” acknowledging receipt of $85,000.00 in return for which she released Bambino and Erie “from any and all liability to [Smith, including] any and all known or unknown injuries, losses and/or damages sustained ... on or about January 13, 2007, directly or indirectly, as a consequence of the automobile accident that occurred in New Orleans, Louisiana....”

The release went on to encompass the release of all claims filed by the plaintiff in the trial court and included language stating that the plaintiff authorized and instructed her attorney to dismiss her claims against Bambino and Erie “with full prejudice[]”. The release also included language requiring the plaintiff to |Bprovide indemnity to Bambino and Erie for any claims asserted against them by anyone in connection with the accident.

The release concludes with language declaring that it is not to be construed against (i.e., it was not to be treated as a contract of adhesion) Bambino and Erie, as Smith was represented by her own counsel, as well as language stating that in executing the release, the plaintiff “relies wholly on her own judgment and belief, and has not been influenced to any extent whatsoever by any representation or statements made by the persons, firms or corporations, their agents or employees.... ”

It is significant that this blanket “Receipt, Release and Agreement to Indemnify” was executed after plaintiffs claim for penalties would have accrued were this Court to accept the plaintiffs argument that the 30-day period commenced to run on October 9, 2010. The defendants argue, and the plaintiff has not contended otherwise, that the language of the “Receipt, Release and Agreement to Indemnify” is so broad as to encompass any claims related to plaintiffs accident, including the claim for La. R.S. 22:1973 penalties. Instead, the plaintiff argues, as will be discussed at greater length hereafter, that the “Receipt, Release and Agreement to Indemnify” was executed by her under duress of an economic nature.

On December 23, 2009, on motion of the plaintiff, the trial court signed an Order (Judgment) dismissing with prejudice plaintiffs claims against Bambino and Erie, discharging them “from any liability arising out of or in any way connected with, related to, or incident to claims and causes of action for injuries, losses, and/or damages sustained by Michelle Rae Smith as a consequence of the automobile accident that occurred ... on or about January 13, 2007.... ” This | (judgment of dismissal with prejudice obtained upon motion of the plaintiff, was filed and signed after the plaintiffs claim for penalties would have accrued, and pri- or to the time the plaintiff filed her claim for penalties. The defendants argue, and the plaintiff has not contended otherwise, that the Order of dismissal with prejudice was broad enough to include the plaintiffs claim for penalties. In other words, it is uncontested that both the “Receipt, Release and Agreement to Indemnify” as well as the motion and order to dismiss with prejudice were so broad and all-encompassing as to include the plaintiffs claim for penalties that is the object of this appeal. However, the plaintiff contends that she moved for the dismissal with prejudice under duress of an economic nature as she needed immediate access to the settlement funds. But, as we will explain below, there is no admissible evidence in the record of any such economic duress.

On January 6, 2010, Smith filed a “Motion to Assess Penalties for Late Payment of Settlement Funds.” In this motion the plaintiff sought “a minimum penalty of $5,000.00” from Bambino and Erie for “failure to pay the settlement [reduced to writing] in this matter within thirty (30) days,” pursuant to La. R.S. 22:1973 B(2). The Motion explained that: “Plaintiff, Michelle Smith, was in necessitous circumstances and dependent on those settlement proceeds for financial support that were finally tendered fifty (50) days after the settlement was reached,” i.e., the plaintiff was forced by the duress of financial necessity to sign a full release to receive settlement proceeds after 50 days when she had an unconditional right to receive them within 30 days. We again note that the 50 days referred to in the plaintiffs claim for penalties dates from the October 9, 2010 mediation.

|7The motion was served upon opposing counsel only, and not on Erie or Bambino directly. Bambino and Erie assign this as error, insisting that as the suit had been dismissed with prejudice, process could no longer be served on the defendants through their attorney of record. In spite of the fact that the defendants argued this issue in brief below and to this Court, they filed no exception as to citation or service of process.

Annexed to the motion to assess penalties was: (1) a copy of the mediation agreement; (2) a copy of a letter dated December 7, 2009, addressed to the plaintiffs attorney, Mr. Robert J. Caluda, from Timothy T. Roniger, counsel for Bambino and Erie, including a copy of the proposed settlement agreement and a copy of the settlement check to be delivered to the plaintiff once the settlement agreement was executed; (3) an affidavit signed by counsel for the plaintiff, Robert J. Caluda, averring that counsel for Bambino and Erie stated that he would not release the settlement funds if the plaintiff reserved her rights to claim penalties for failure to pay the settlement funds promptly. The affidavit goes on to state that: “Plaintiff, Michelle Smith, indicated to Plaintiff counsel that she had necessary circumstances[] and had no alternative but to take the settlement proceeds that were nearly twenty (20) days late from the maximum due date.” The defendants filed timely objections to Mr. Caluda’s affidavit, correctly noting that it is inadmissible hearsay. The plaintiff points to no exception to the hearsay rule that would permit the consideration of Mr. Caluda’s affidavit. We note further that it is conclusory in nature as it contains no description of what the plaintiffs necessary circumstances might be.

| sThere is no affidavit from the plaintiff, herself, in the record and no explanation of why she could not have executed one.

We find that the plaintiffs argument based on duress is, in effect, an argument that the dismissal with prejudice is null as regards the plaintiffs claim for penalties because duress would constitute La. C.C.P. art. 2004 A “ill practices.” It follows according to the defendants, that the plaintiff must bring an action in nullity for which purpose summary procedure would not be proper. The plaintiff has filed no action in nullity. Moreover, the defendants argue that the dismissal with prejudice of December 23, 2009, constitutes res judicata. However, the defendants filed no formal exception of res judicata in either the trial court or this Court. However, we note that this court may notice the exception of res judicata on its own motion. La. C.C.P. art. 929 B.

Plaintiffs Motion to Assess Penalties was presented in the form of a show cause order which was fixed for hearing on February 26, 2010. The defendants objected to the use of summary procedure both in the trial court and in this appeal, but they have filed no formal exceptions regarding same.

The defendants also make arguments objecting to personal jurisdiction, but they filed no formal exceptions in either the trial court or this Court.

Apparently, the hearing was continued until March 2, 2010, as the March 24, 2010 judgment rendered pursuant to that hearing indicated that counsel for the parties appeared on March 2, 2010 for argument. There is no transcript of the hearing in the record.

The judgment states that:
[T]he Court finds that the Defendants did in fact pay the settlement in this matter in excess of thirty (30) days from the date settlement was perfected and the |9settlement proceeds were paid twenty (20) days late on December 8, 2009, after the settlement was confect-ed on October 19, 2009. The Court finds that Plaintiffs motion is well founded and assesses the Defendants, James E. Bambino and Erie Insurance a $5000.00 penalty pursuant to Louisiana Revised Statute 22:1973....” [Emphasis added.]

Of the various possible exceptions argued by the defendants but not filed in formal form, only the exception of res judi-cata is peremptory and may be noticed by this Court on its own motion. La. C.C.P. art. 929 B. Otherwise, after judgment, the jurisdictional and citation and service of process issues raised by the defendants must be raised in an action of nullity under La. C.C.P. art. 2002 A(2) and (3), which was not done in this case. However, La. C.C.P. art. 2002 B states that such an action in nullity “may be brought at any time.”

While we have noted the many grounds for appeal raised by the defendants, we find one that is both straightforward and dispositive: There is not sufficient evidence in the record to support the judgment of March 24, 2010. That judgment was based on the plaintiffs claim of economic duress and there is no admissible evidence in the record to support that claim.

For the foregoing reasons, we vacate the judgment of the trial court and dismiss the plaintiffs claim for penalties with prejudice.

VACATED AND RENDERED.

      . However, none of the cases were cited or discussed in the body of the plaintiff’s brief.

      . Emphasis original.

      . Emphasis added.