author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Demetrius T. TAYLOR.
    No. 12-KA-25.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Demetrius T. Taylor, appeals his conviction of possession of a firearm by a previously convicted felon. For the reasons which follow, we affirm the defendant’s conviction and sentence.

STATEMENT OF THE CASE

On July 23, 2008, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Demetrius T. Taylor, with possession of a firearm after having been previously convicted of a felony, in violation of LSA-R.S. 14:95.1. A sanity motion was filed, and defendant was ruled competent to stand trial on October 1, 2008. Subsequent to finding defendant competent, defendant was arraigned and entered a plea of not guilty. Several pretrial motions, including a motion to suppress evidence and statement, were filed by defendant and denied on April 27, 2009, by the trial court.

On October 15, 2009, trial of this matter commenced. During the trial, and outside the presence of the jury, the defendant moved for a mistrial on the grounds that defendant was incompetent to stand trial. The trial court granted defendant’s motion for mistrial, at which time defense counsel waived any potential double jeopardy issues. Thereafter, a competency hearing was held on January 27, 2010, Land after examination of the expert report, the trial court found defendant incompetent.

Several months later, on April 28, 2010, defendant’s competency was re-evaluated and defendant was found competent to stand trial. On August 12, 2010, defendant withdrew his not guilty plea and entered a plea of “not guilty and not guilty by reason of insanity.” On the morning of trial, defendant withdrew his not guilty by reason of insanity plea. The matter proceeded to trial before a 12-person jury on June 21, 2011.

Sergeant Kevin Cannatella, of the Louisiana State Police, testified that on June 28, 2008, he received information that a vehicle was traveling the wrong way down Interstate 10 (“1-10”). Pursuant to this information, Cannatella testified that he identified the vehicle and conducted a traffic stop. Because the vehicles were facing each other when the stop was conducted, Cannatella testified that he observed the defendant lean forward and move something on the floorboard in front of him. The defendant was ordered to exit his vehicle and was approached by Cannatella who asked him for identification. The defendant informed Cannatella that his state identification card was inside the vehicle. Cannatella testified that he accompanied the defendant back to his vehicle to retrieve the identification and upon opening the driver’s side door, Cannatella observed, on the floorboard in plain view, a chrome revolver. At that point other police troopers had arrived on the scene, so Cannatella escorted the defendant to the troopers who ordered defendant to place his hands on the hood of the car while Cannatella secured the weapon. Cannatel-la further testified that the defendant was advised of his Miranda rights, but could not specifically recall which officer had Mirandized the defendant. Cannatella testified that the rights would have been read from a card used by the State Police. Cannatella also testified that the defendant understood |4his rights and indicated that he was willing to speak with the officers. The defendant then told the officers that he knew the gun was inside his vehicle and that the gun belonged to a family member. However, defendant could not provide the name of the family member who owned the gun. The defendant’s identification card was also retrieved from the vehicle and a criminal background check was performed. Pursuant to the background check, Canna-tella testified that the defendant was placed under arrest.

Trooper Justin Berry, also of the Louisiana State Police, testified that when he arrived on the scene, there were three other officers present and that the defendant was standing outside of his vehicle with his hands on the hood of his car. Berry further testified that while Canna-tella secured the gun, he asked the defendant about the gun. The defendant advised Berry that it belonged to his cousin but was unable to provide his cousin’s name. Berry also testified that he did not read the defendant his Miranda rights, and did not indicate in his report that the defendant’s rights had been read. According to Berry, he was under the impression that the defendant’s rights had been read prior to his arrival.

After considering the evidence presented, the jury found defendant guilty as charged. On August 29, 2011, the trial court sentenced defendant to ten years imprisonment, with credit for time served. The trial court also ordered defendant’s sentence to run concurrently “with any other sentence and with any parole revocation.” On the same date, defendant filed a motion for appeal which was granted by the trial court on August 30, 2011.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, the defendant argues that the trial court erred in denying his motion to suppress because his statement was made pursuant to a custodial interrogation and prior to receiving his Miranda rights. Defendant further | .^contends that the evidence acquired as a result of the illegality, namely, the gun, should have also been suppressed. Specifically, defendant asserts that when he was handcuffed and questioned about the gun, an illegal war-rantless arrest and search occurred. And because the illegal procedure tainted the physical evidence that was gathered, as well as the statement obtained, defendant argues that his motion to suppress should have been granted.

In response, the State first submits that the gun, recovered from the driver’s side floorboard, was seized after it was observed in plain view and prior to the defendant’s statement. Thus, the State maintains that the gun was not obtained as a result of any alleged illegality which had yet to occur. Second, the State argues that defendant’s statement was made after he was advised of his Miranda rights by one of the troopers on the scene, as testified to by Cannatella. Additionally, the State contends that Trooper Berry testified that the defendant provided the subject statement prior to being placed under arrest and while the troopers were still investigating a potential traffic stop. Thus, because the defendant was not “in custody3’ at the time the statement was made, the State argues that Miranda was not implicated.

At the motion to suppress hearing, Sergeant Cannatella’s testimony differed from his testimony at trial with respect to the timeline of events in this case. At the suppi'ession hearing, Cannatella testified that on June 28, 2008, he received a call that a green SUV was traveling the wrong way down 1-10. Cannatella observed the vehicle described, activated his overhead lights, and conducted a traffic stop. Upon conducting the stop, the driver was asked to exit the vehicle at which time Cannatella observed him leaning over, appearing to place something underneath his seat. Once the driver had exited the vehicle, Cannatella approached him and asked him to identify himself, however, the defendant was unable to provide | ^identification. The defendant advised Cannatella that the vehicle did not belong to him, and made several attempts to return to his vehicle but Cannatella prohibited him from doing so until a safety check was performed. Upon opening the driver’s side door, Can-natella observed part of a chrome revolver on the floorboard. Cannatella took control of the revolver at which time a second trooper arrived on the scene. Cannatella instructed the trooper to place defendant in handcuffs for safety because of the weapon recovered. Cannatella further testified that he heard Trooper Flynn read defendant his Miranda rights. Cannatella testified that they ran the serial number on the revolver and discovered that it had been “taken in an armed robbery and reported stolen out of Texas.” Cannatella testified that upon learning this information, the investigation changed from one for safety to placing defendant under arrest for possession of a stolen weapon, for which defendant was re-Mirandized. Can-natella then testified that after being Mir-andized for a second time, he heard the defendant state that he knew the weapon was in the vehicle, and that the weapon belonged to his cousin.

At the conclusion of the hearing, and after argument of defense counsel that the defendant’s statement should be suppressed because the State failed to produce the trooper who read defendant his Miranda rights, the trial court held the matter open so Trooper Flynn could testify-

Many months later, and after submitting post-hearing memoranda, on April 27, 2009, defendant moved the trial court to render a ruling on his motion to suppress. Thus, at the second hearing on defendant’s motion to suppress, the State argued that upon conducting a safety check of the defendant’s vehicle, a gun was recovered in plain view and that the defendant told the officers that he knew the gun, which belonged to his cousin, was in the car. However, because the State did not present the testimony of the officer who read defendant his Miranda rights, the |7State argued that the question before the court was whether the defendant’s statement should be suppressed absent Miranda warnings. The State further argued that Cannatella’s question to the defendant in which he asked him “what’s this,” was not an interrogation within the purview of Miranda. The State further asserted that the defendant was not in “custody” at the time the statement, “this is my cousin’s gun,” was made. In response, the defendant argued that he was handcuffed and in “custody” but was not read his Miranda rights before being questioned about the gun.

Prior to ruling, the court framed the issue as: whether a handcuffed suspect who is asked “what’s this,” gives rise to a custodial interrogation. The trial court denied defendant’s motions to suppress evidence and statement, noting that the officer initially handcuffed the defendant for safety reasons, but did not place him under arrest.

The State has the burden, in a hearing on a motion to suppress the evidence, of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Butler, 01-0907, p. 6 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 124. In determining whether the ruling on a motion to suppress was correct, the court is not limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at the trial of the case. State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 2001-0940 (La.2/8/02), 807 So.2d 859.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, law enforcement officers are authorized by LSA-C.Cr.P. art. R215.1, as well as state and federal jurisprudence, to conduct investigatory stops, which allow officers to stop and interrogate a person who is reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Gresham, 97-1158 (La.App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200.

“Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774. The violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Jones, 01-177 (La.App. 5 Cir. 10/17/01), 800 So.2d 958, 962. Evidence derived from an unreasonable stop will be excluded from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989. Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passenger out of the vehicle pending completion of the stop. State v. Gomez, 06-417, (La.App. 5 Cir. 11/28/06), 947 So.2d 81 (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)).

After reviewing the entire record, including all pertinent evidence adduced at the trial of this case, we find that the trial court did not abuse its great discretion in ruling on defendant’s motion to suppress evidence. Regarding the initial investigatory stop, we find that the record clearly reflects that defendant was stopped for a traffic violation. Both Cannatella and Berry testified that they received a call from dispatch regarding a vehicle traveling the wrong way on 1-10. |9Cannatella further testified that upon responding to the call, he personally observed the defendant’s vehicle traveling the wrong way on 1-10. Cannatella explained that driving the wrong way on the interstate, or any roadway, is a traffic violation, so he conducted a traffic stop. Based upon this information, we find that the officer had reasonable suspicion to stop defendant’s vehicle.

With respect to the seizure of the gun from defendant’s vehicle, the defendant argues that the exclusionary rule applies, which prohibits the receipt of evidence at trial which was acquired as the result of an illegal arrest. However, we find that defendant’s contention is misplaced, reasoning that the exclusionary rule is inapplicable to the gun which was seized prior to the occurrence of any unconstitutional police conduct.

In State v. Hill, 97-2551 (La.11/6/98), 725 So.2d 1282, 1283-84, the Louisiana Supreme Court discussed the exclusionary rule:

The primary purpose of the exclusionary rule is to deter future impermissible police conduct. The rule, which requires the exclusion of evidence gained through impermissible official conduct, is designed to deter unconstitutional methods of law enforcement. Louisiana has codified this jurisprudential doctrine in Louisiana Code of Criminal Procedure Article 708(A) which provides that a defendant, adversely affected by unconstitutional police misconduct, may move to suppress any evidence on the grounds that it was unconstitutionally obtained. However, there are several well-settled judicial doctrines that supply exceptions to the exclusionary rule. If one of these doctrines is applicable, evidence seized following official misconduct may not require suppression. These three jurisprudentially created doctrines which prevent the suppression of evidence are: (1) the independent source doctrine, (2) the inevitable discovery doctrine, and (3) the attenuation doctrine. Wong Sun v. U.S., 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963); U.S. v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); State v. Welch, 449 So.2d 468 (La.1984); State v. Guy, 575 So.2d 429 (La.App. 4 Cir.1991), writ denied, 578 So.2d 930 (La.1991).

In the present matter, we find that defendant’s argument that the gun should have been suppressed under the exclusionary rule lacks merit because it was obtained prior to the defendant’s alleged unconstitutionally obtained statement. | ^Additionally, we find that Cannatella had prior justification for his intrusion into the protected area of defendant’s vehicle, and thus, lawfully obtained the gun under the plain view exception.

In order for the plain view exception to the warrant requirement to apply, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 116, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464. The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983); State v. Smith, 07-815, p. 6 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-0927 (La.11/14/08), 996 So.2d 1088. An officer who peers into the interior of a vehicle during a legitimate traffic stop is not conducting a search within the meaning of the Fourth Amendment. State v. Schouest, 351 So.2d 462 (La.1977); State v. Daniels, 614 So.2d 97 (La.App. 2 Cir.1993), writ denied, 619 So.2d 573 (La.1993).

Here, once Cannatella had lawfully stopped defendant’s vehicle for a routine traffic violation, he observed the defendant lean forward and move something underneath him in the area of the front seat floorboard. Thus, Cannatella ordered the defendant out of the vehicle pending completion of the stop. When asked to see defendant’s identification, the defendant indicated that his state identification card was located inside the vehicle. Upon returning to the vehicle to retrieve the identification, the driver’s side door was opened and Cannatella observed on the | nfloorboard, in plain view, a chrome revolver. Because the traffic stop gave the officer justification for being next to defendant’s vehicle, and the gun was immediately apparent to Cannatella when he opened the door, we find that Cannatella had the right to seize the gun based on the plain view, exception to the warrant requirement.

Since it appears that the trial court did not abuse its discretion in denying defendant’s motion to suppress evidence, the query now shifts to the trial court’s denial of defendant’s motion to suppress statement. Defendant contends that his statement should have been suppressed because it was made pursuant to a custodial interrogation and prior to defendant being advised of his Miranda rights.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. State v. Franklin, 03-287, p. 4 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817. On appeal, defendant does not appear to challenge the voluntariness of his statement, but only argues that his statement was made pursuant to a custodial interrogation and prior to being read his Miranda rights.

An arrest is the taking of one person into custody by another through actual restraint that may be imposed by force or that may result from submission of the person arrested to the custody of the one arresting him. LSA-C.Cr.P. art. 201. Whether a person has been arrested is determined by an objective test. Neither the person’s subjective impression nor the lack of formality of the arrest resolves the issue. State v. Fisher, 97-1133, p. 6 (La.9/9/98), 720 So.2d 1179, 1183. The | ^determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. Id.

A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Fisher, 97-1133 at 6, 720 So.2d at 1183. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended l’estraint on the person’s liberty. Id. “The circumstances indicating an intent to effect a restraint on the liberty of an accused, rather than the precise timing of the words “ ‘you are under arrest,’ ” determine when an arrest has been made.” State v. Hargrave, 411 So.2d 1058, 1060 (La.1982) (quotations omitted). This Court has recognized that the only relevant inquiry in the determination of whether there was a formal arrest or a restraint of freedom of movement to a degree associated with an arrest is how a reasonable man in the suspect’s position would have understood the situation. State v. Gant, 06-232, pp. 27-28 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1122, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

In the ease at bar, there appears to be a discrepancy between Cannatella’s trial testimony and his motion to suppress testimony regarding the point in time defendant was placed in “custody.” And although appellate courts may consider all pertinent evidence adduced at the pre-trial hearing and at the trial of the case, the contradictory evidence presented in this case appears to be critical when reviewed in conjunction with the trial court’s ruling on the motion to suppress.

Specifically, at the suppression hearing on November 12, 2008, Cannatella testified to the following order of events: 1) Defendant was ordered to place his hands on the car, and was then placed in handcuffs, for safety reasons, by troopers 11son the scene after the gun was recovered; 2) Cannatella overheard the defendant being advised of his Miranda rights and being told he was under investigation; 3) it was discovered that the gun found in defendant’s ear was stolen; 4) defendant was placed under arrest and re-Mirandized; and 5) defendant made a statement that he knew the gun was in the car and that it belonged to his cousin.

The court held the suppression hearing open and did not render a ruling on defendant’s motion until April 27, 2009, more than five months after the hearing. Upon ruling, the trial court framed the issue as “whether a handcuffed suspect” who is asked “what’s this,” gives rise to a custodial interrogation. The trial court then denied defendant’s motion to suppress evidence and statement, noting that the officer initially handcuffed the defendant for safety reasons, but did not place him under arrest. While the trial court was correct that Cannatella initially handcuffed the defendant for safety reasons, Canna-tella also testified that once he discovered that the gun was stolen, the investigation changed from one of safety to a criminal investigation for which defendant was placed under arrest before he gave the inculpatory statement.

At trial however, Cannatella testified to a different timeline with regard to the time at which defendant provided his statement in this case: 1) defendant was ordered by the troopers on the scene to place his hands on the hood of the car once the gun was recovered; 2) Cannatella overheard defendant being read his Miranda rights but could not recall which officer advised defendant of his rights; 3) defendant gave his statement regarding his knowledge of the gun and indicated that it belonged to a family member; 4) a criminal records check was performed; and 5) defendant was placed under arrest.

The suppression hearing testimony reveals that defendant was in custody at the time he made his statement, while the trial testimony tends to indicate that | ^defendant was not in custody at the time defendant’s statement was made. Although, as a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress, State v. Sherman, 04-1019, p. 1 (La.10/29/04), 886 So.2d 1116, 1116 (per curiam), the Court’s focus should be on the trial court’s ruling to determine whether an error was made. And while a review of the trial testimony may provide supplemental information relevant to the suppression issue, it may also disclose conflicting testimony relevant to the credibility of the witness. Id. In many cases the testimony at trial may not diverge from the evidence adduced at a pre-trial hearing on a motion to suppress. Id. at 2, 886 So.2d at 1116. An appellate court is therefore not required to review the testimony at trial in every instance. Id. Here, the evidence adduced at the pre-trial hearing on the motion to suppress diverges greatly from the testimony presented at trial.

In this case, the trial court found that defendant was not in custody at the time he made his statement and thus, never addressed the issue of whether defendant was read his Miranda rights prior to giving his statement. However, because the testimony seems to indicate that defendant was in fact in custody at the time the statement was made, we could find the trial court erred in denying defendant’s motion to suppress on the grounds asserted in its ruling.

However, even if we find that the trial court erred in denying defendant’s motion to suppress statement, the erroneous admission of a statement or confession is subject to a harmless error analysis. State v. Harris, 2001-2730, p. 26 (La.1/19/05), 892 So.2d 1238, 1260, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005) Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. \ n,Robertson, 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172, writ denied, 08-2301 (La.9/4/09), 17 So.3d 950; State v. Barbour, 2009-1258, p. 14 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, 1150, writ denied, 2010-0934 (La.11/19/10), 49 So.3d 396, cert. denied, Barbour v. Louisiana, — U.S. —, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). Considering all of the evidence, we find beyond a reasonable doubt, the guilty verdict rendered in the instant case was unattributable to any possible error by the trial court in denying the defendant’s motion to suppress the statement.

Defendant was convicted of violating LSA-R.S. 14:95.1 (possession of a firearm by a convicted felon). In order to convict a person of violating LSA-R.S. 14:95.1, the State must prove: 1) the defendant possessed the firearm; 2) the defendant had a prior conviction for an enumerated felony; 3) the defendant possessed the firearm within ten years of the prior conviction; and 4) the defendant had the general intent to commit the offense. State v. Watson, 08-214, p. 7 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 784.

Actual possession of a firearm is not necessary to prove the possession element of LSA-R.S. 14:95.1. Constructive possession is sufficient to satisfy the element of possession. State v. Day, 410 So.2d 741, 743 (La.1982); Anderson, supra. A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. Id., 03-1228 at 5, 870 So.2d at 999.

A defendant’s mere presence in an area where a firearm was found does not necessarily establish possession. Johnson, 03-1228 at 5, 870 So.2d at 999. The State must prove that the offender was aware that a firearm was in his presence and that the offender had the general intent to possess the weapon. Guilty knowledge |]Bmay be inferred from the circumstances and proved by direct or circumstantial evidence. Id., 03-1228 at 5, 870 So.2d at 998.

Cannatella testified both at the suppression hearing and at trial, that when he stopped the defendant for driving the wrong way down the interstate, their vehicles were facing each other, at which time he observed the defendant leaning over, “appearing to be placing something on the floorboard in front of him.” Cannatella further testified that the defendant kept eye contact with him the entire time while he was “manipulating something on the floorboard in front and underneath him.” Additionally, Cannatella testified that once the driver exited his vehicle, he made several attempts to return to his vehicle but Cannatella prohibited him from doing so until a safety check of the vehicle was performed. Based on Cannatella’s testimony, there is a strong inference that the defendant bent over in an attempt to hide the weapon when he became aware that he was the subject of a traffic stop. Moreover, the evidence adduced at trial establishes that the gun was recovered on the front seat floorboard in plain view, indicating that defendant constructively possessed the gun and had guilty knowledge of its presence. Therefore, even if the trial court did improperly permit defendant’s statement regarding his knowledge of the gun into evidence, we find that beyond a reasonable doubt, the guilty verdict rendered in the instant case was unattributable to any possible error by the trial court in denying the defendant’s motion to suppress the statement.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that the State failed to provide him with Brady material. Specifically defendant contends that the State failed to disclose the fact that the fingerprints on the bill of information, from defendant’s previous conviction, were unreadable and could not be used to prove defendant’s prior conviction. Defendant further contends that the information 1 ^withheld by the State concerning the unusable fingerprints, was “material” to defendant’s guilt, and had the evidence been properly disclosed, the outcome of the trial would have been different. Therefore, defendant submits that the trial court erred in denying defendant’s motion for mistrial given the prejudicial nature of the evidence and accordingly requests a reversal of his conviction.

In response, the State argues that the exhibits used to establish defendant’s prior conviction were introduced into evidence and available for defense counsel’s inspection since October 15, 2009, during the first trial of this matter. Thus, the State submits that the defendant was informed well in advance of trial that the fingerprints on defendant’s arrest register connected with his prior conviction, and not those contained on the bill of information, would be used to establish defendant’s felon status. Additionally, the State maintains that the defendant was not denied a fair trial as a result of this evidence, noting that defense counsel was able to cross-examine Prudhomme regarding the fingerprint comparison performed. Finally, the State contends that defendant has failed to offer any specific argument or allegations to establish the prejudice he has suffered by the alleged “late disclosure” of the unsuitability of the fingerprints on the bill of information, and thus, urges this Court to find such claim meritless.

At the trial of this matter on June 21, 2011, Aischa Prudhomme, of the Jefferson Parish Sheriffs Office Crime Laboratory, was qualified as an expert in the field of fingerprint identification. Prudhomme testified that she was unable to compare the fingerprints located under defendant’s name on the back of the bill of information in case number 379-642 because the fingerprints were not suitable for comparison. Prudhomme explained that if the fingerprints she is provided by the District Attorney’s office are unsuitable for comparison, alternate records that correlate with the conviction will be compared. Thus, to prove defendant’s identity |1sas the individual previously convicted in case number 379-642, Prudhomme testified that she compared defendant’s fingerprints with those contained on the arrest register associated with case number 879-642 “I,” Orleans Parish Criminal District Court. Prudhomme testified that pursuant to her analysis, the defendant’s fingerprints matched the fingerprints associated with defendant’s previous arrest for armed robbery and attempted murder. Prudhomme further testified that she did not prepare a report in this case, but that she did inform the District Attorney’s Office in 2009, when the case was first brought to her for analysis, that the fingerprints located on the back of the bill of information in the certified conviction packet were not suitable for comparison.

Defense counsel objected to Prud-homme’s testimony on the grounds that the State failed to inform him that the prints on the back of the bill of information in case number 379-642 were unsuitable for comparison, and moved for mistrial pursuant to Brady. In response, the State argued that all of the exhibits at issue, including the certified conviction packet in case number 379-642, which contained the bill of information and the arrest register, were provided to defense counsel when the case was first tried in 2009. The State also argued that at the previous trial, defense counsel cross-examined Prudhomme concerning the fingerprint comparisons. Defendant’s request for a mistrial was denied by the trial court.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the State of evidence favorable to the accused after it receives a request for it violates a defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecutors. See also State v. Bright, 02-2793, pp. 5-6 (La.5/25/04), 875 So.2d 37, 41-42. The duty to disclose is applicable even where there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 |13S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). The State’s due process duty to disclose applies to both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Kemp 00-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545. Brady also requires the disclosure of evidence concerning a promise of leniency or immunity to a material witness in exchange for his testimony at trial. Giglio v. United States, supra. See also State ex rel. Guise v. State, 00-2185, p. 2 (La.10/15/02), 828 So.2d 557, 558.

Evidence is “material” under Brady only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. A reasonable probability is one that is sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. A reviewing court determining materiality must ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566,131 L.Ed.2d 490 (1995).

While the United States Supreme Court has emphasized the prosecution’s duty to disclose exculpatory evidence, it has not specifically spoken on the timing of such disclosures. But the Louisiana Supreme Court has held that late disclosure as well as non-disclosure of exculpatory evidence may deprive the defendant of a fair trial. Kemp, supra; State v. Williams, 448 So.2d 659, 665 (La.1984). See also State v. Lande, 06-24, pp. 23-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 296, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154.

Moreover, discovery violations are not grounds for reversal unless they have actually prejudiced the defendant. State v. Ganick, 03-0137, p. 5 (La.4/14/04), 870 So.2d 990, 993 (per curiam); State v. Strickland, 398 So.2d 1062, 1067 (La.1981).2n Even a discovery violation involving the State’s failure to disclose exculpatory evidence does not require reversal under the Due Process Clause “unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

Additionally, since mistrial is a drastic remedy, in instances where it is not mandatory, this relief is warranted only when the defendant suffers substantial prejudice that deprived him of any reasonable expectation of a fair trial. State v. Lee, 09-37, (La.App. 5 Cir. 5/12/09), 15 So.3d 229, (citing State v. Harris, 00-3459, p. 9 (La.2/26/02), 812 So.2d 612, 617). The decision to grant or deny a mistrial is within the trial court’s sound discretion. The denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. Lee, supra.

In the present matter, we find that the evidence at issue does not constitute Brady material, and that the alleged untimely disclosure of the “fingerprint usability” did not prejudice defendant such that a mistrial should have been granted. As previously discussed, the Brady violation that defendant complains of is the fact that he was not informed that the fingerprints located on the bill of information in case number 379-642 (the prior conviction used to establish defendant’s felon status) were unusable for comparison.

First, the information at issue was disclosed to defense counsel prior to, or during, the first trial of this matter in 2009, when Prudhomme testified, and was cross-examined, regarding the fingerprint comparisons conducted.

Additionally, at the first trial, the State introduced into evidence a certified copy of the minute entry, bill of information, docket master, arrest register, and waiver of rights in case number 379-642. Second, even assuming that the subject 121 evidence was not disclosed in the first trial of this matter, it cannot be argued that the evidence at issue is “material” under Brady because the outcome of the trial would not have been different if the evidence would have been timely disclosed to the defense. It is well settled that to establish the defendant as the same person convicted of a prior felony, the State need not use a specific type of evidence, and that prior convictions may be proven by any competent evidence. State v. Lindsey, 99-3302, p. 7 (La.10/17/00), 770 So.2d 339, 344. Proof of identity can be established in various ways, including the State presenting: (1) the testimony of witnesses to prior crimes, (2) expert testimony matching the fingerprints of the accused with those in the record of the prior proceeding, (3) photographs contained in a duly authenticated record, or (4) evidence of identical driver’s license number, sex, race, and date of birth. State v. Isaac, 98-0182, p. 7 (La.App. 4 Cir. 11/17/99), 762 So.2d 25, 28-29, writ denied, 00-0239 (La.1/26/01), 781 So.2d 1255.

In State v. Armstead, 542 So.2d 28 (La.App. 4th Cir.1989), writ denied, 566 So.2d 391 (La.1990), the state produced an arrest register with fingerprints on the back of it. There were no fingerprints on the bill of information or minute entries of the guilty plea. However, because there was sufficient information on the documents supporting the conviction to prove the eonnexity with the arrest register, the court found that the State could use the fingerprints from the arrest register to show that the defendant was the same person who committed the predicate offense. Armstead, 542 So.2d at 30-31.

Similarly, in the instant case, during the testimony of Prudhomme, the State introduced three exhibits: 1) the fingerprints taken from the defendant on the morning of the first trial; 2) the arrest register containing defendant’s fingerprints associated with case number 379-642 for attempted murder and armed robbery, | ^alleged to have occurred on August 4, 1995; and 3) a certified packet from defendant’s prior conviction for attempted murder and armed robbery (case number 379-642) containing the bill of information, guilty plea form, docket master, minute entry, arrest register, and screening action form.

Prudhomme then matched the fingerprints from the arrest register with the certified conviction packet to show that defendant was the same person who committed the predicate offense. Not only does the name, date of birth, and address of defendant contained in the certified conviction packet match that on the arrest register, but the offenses charged, the date of the offenses were committed, the victim of the crime, and the folder number (702400) matches the conviction and the arrest register in case number 379-642. Thus, even if the State had failed to disclose Prudhomme’s inability to use the fingerprints on the bill of information, the outcome of the trial would not have differed since the State could, as it did, use the fingerprints from the arrest register to show that the defendant was the same person who committed the predicate offense.

Finally, we do not find that defendant was prejudiced and/or was unable to receive a fair trial because of this information. First, as argued by the State, the defendant does not point to any specific prejudice he has suffered as a result of the State’s failure to provide him with this information. Second, the jury in this case listened to the testimony of Prudhomme who testified that the fingerprints on the bill of information were not suitable for comparison. And third, defendant cross-examined Prudhomme extensively on this issue, regarding the fingerprints from the arrest register being used to establish defendant’s identity. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

Igjln light of the foregoing, we determine that the evidence does not support the conclusion that the State violated Brady, finding that the failure to disclose the subject information was not “material” evidence as to the defendant’s guilt or punishment, and that the results of the proceedings would not have been different if disclosed prior to trial.

We also find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial based on Prudhomme’s inability to compare the fingerprints contained on the bill of information to establish defendant’s identity as previously convicted felon.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters are presented for review.

First, although the commitment reflects that defendant was given a proper advisal of the time period for seeking post-conviction relief, it appears that the transcript reflects an incomplete advisal. The transcript reflects that defendant was advised that he had “30 days to appeal this sentence and two years to file post-conviction relief.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598.

This Court has recently corrected this error patent by way of its opinion. See State v. Neely, 08-707, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463, pp. 10-P.I24 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Accordingly, this Court advises defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. See Neely, supra; Davenport, supra.

Next, although the commitment reflects that defendant’s sentence is to be served at hard labor, the transcript does not. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

LSA-C.Cr.P. art. 879 requires the trial court to impose a determinate sentence.

If a sentence is indeterminate in violation of LSA-C.Cr.P. art. 879, it should be remanded for the trial judge to clarify the sentence on resentencing. State v. Lachney, 621 So.2d at 846 (La.App. 5 Cir.1993); State v. Lai, 04-1053 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175. However, when the underlying statute requires the sentence to be served at hard labor, allowing no discretion to the trial judge, the error is harmless. State v. Stewart, 10-389 (La.App. 5 Cir. 5/10/11), 65 So.3d 771, writ denied, 11-1245 (La.1/20/12), 78 So.3d 140.

Here, defendant was convicted of being a felon in possession of a firearm, which requires that the sentence imposed be served at hard labor. (See, LSA-R.S.14:95.1). Thus, because the underlying statute affords the trial judge no discretion, the error was harmless and the sentence is not an impermissible indeterminate sentence. Therefore, we find that no corrective action is necessary.

125Third, the record indicates that the trial judge failed to impose statutory restrictions at sentencing. Although the trial judge failed to mention the restrictions, such conditions are deemed to exist by operation of law, under LSA-R.S. 15:301.

In State v. Williams, 00-1725, pp. 14-15 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court found:

In instances where these restrictions are not recited at sentencing, La. R.S. 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.
Since the benefits provision of LSA-R.S. 14:95.1 is self-operating under La. R.S. 15:301.1, we find no corrective action is necessary.

Fourth, at the time of defendant’s offense, LSA-R.S. 14:95.1(B) provided for a sentence of imprisonment at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and a mandatory fine of not less than one thousand dollars nor more than five thousand dollars. In this case, neither the commitment nor the transcript reflects the imposition of the mandatory fine required under the statute. Neither party has raised this issue on appeal.

The Louisiana Supreme Court has held that an appellate court has the authority under LSA-C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. State v. Campbell, 08-1226 at 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076 at 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842. This Court has used that authority to notice the failure of the trial court to impose a mandatory fine and the authority to remand the matter to the trial court for imposition of a mandatory fine. 12(jHowever, this authority is permissive rather than mandatory. In Campbell, supra, this Court noted defendant’s indigent status and declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine.

In the present case, we note that defendant is indigent as surmised by his representation by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we find that no corrective action is necessary and decline to remand this matter for imposition of the mandatory fine. (See also State v. Turner, 08-1188, p. 14 (La.App. 5 Cir. 5/12/09), 13 So.3d 695, 704-05, unit denied, 09-2100 (La.8/18/10), 42 So.3d 400.)

Accordingly, we affirm defendant’s conviction and sentence.

AFFIRMED


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Gordon E. HANDY v. CITY OF KENNER, Second Harvest Food Bank of Greater New Orleans and Acadiana, and XYZ Insurance Company.
    No. 12-CA-135.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      Brian G. Shearman, William N. Hazlaris, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Alvin J. Bordelon, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡.Plaintiff appeals from a judgment rendered against him in this personal injury action. For the reasons stated herein, we affirm.

On December 27, 2005, Gordon E. Handy filed this suit against the City of Kenner and Second Harvest Food Bank of Greater New Orleans and Acadiana and its insurer seeking damages for injuries he sustained on February 14, 2005 while on the food bank premises. Plaintiff alleges that the building which housed the food bank was owned by the City of Kenner, and he alleges he struck his head on the bottom portion of a stairwell while exiting the premises. He contends that defendants are liable for negligence and strict liability, and he prayed for trial by jury. The request for jury trial was subsequently struck, and plaintiffs claims proceeded to a bench trial on July 7, 2011. The matter was taken under advisement, and judgment with reasons was rendered on September 30, 2011 in favor of defendant, the City of Kenner, dismissing plaintiffs petition with prejudice. In its reasons for judgment, the trial court found that the stairwell was an open and obvious condition which did not present an unreasonable risk of harm and that plaintiff was therefore not entitled to relief.

| .¡Plaintiff now appeals from this judgment on the basis of two assignments of error. First, plaintiff contends the trial court was clearly wrong in finding that the defect in the stairwell did not present an unreasonable risk of harm. Secondly, he argues that the trial court erred in refusing to let plaintiffs expert testify as to the building code violations which were relevant to plaintiffs case.

Unreasonable Risk of Harm

Generally, the owner or custodian of immovable property has a duty to keep his property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. Pryor v. Iberia Parish School Board, 101683, p. 3 (La.3/15/11), 60 So.3d 594, 596. In order to impose liability upon a public entity for damages caused by a building or thing, the existence of a defect or condition creating an unreasonable risk of harm must be established. See La. C.C. art. 2317; La. R.S. 9:2800; Chambers v. Village of Moreauville, 11898 (La.1/24/12), 85 So.3d 593. The absence of an unreasonably dangerous condition or defect implies the absence of a duty on the part of the defendant. Broussard v. State Office of State Buildings, 11-479 (La.App. 1 Cir. 3/30/12), 2012 WL 1079182, citing Oster v. Department of Transportation and Development, State of Louisiana, 582 So.2d 1285,1288 (La.1991).

In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Pryor, supra, 10-1683 at p. 3, 60 So.3d at 596 citing Reed, 97-1174 at p. 5, 708 So.2d at 365; Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080, 1083; In making this determination, courts have adopted a risk-utility ^balancing test. This test encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and appar-entness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). see also, Williams v. Leonard Chabert Medical Center, 98-1029, p. 8 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 211, writ denied, 00-11 (La.2/18/00), 754 So.2d 974.

It is also well-settled that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541; Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). The ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. Reed v. Wal-Mart, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner. Williams, supra, 98-1029 at 8, 744 So.2d at 211.

|fiIn the present case, the trial court made a finding of fact that the stairwell was open and obvious. Like all factual findings, we review a finding of “open and obvious” under the manifest error-clearly wrong standard. Nolan v. Mabray, 10-0373, p. 10 (La.11/30/10), 51 So.3d 665, 672; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). We must determine whether the fact-finder’s conclusion was reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Further, a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176.

At trial, Gordon Handy testified that he worked as a diesel mechanic at various jobs for a period of 12-14 years. He stated he was laid off from his job at Avondale in early 2005, and, because he was unemployed, a friend recommended that he visit the food bank in Kenner to pick up supplies. He testified that he went to the food bank in January of 2005 without incident, but he used a separate entrance and exit from the one he used during the accident which is the basis of this lawsuit.

Mr. Handy stated he returned to the food bank on February 14, 2005 for the purpose of getting additional supplies. He stated he signed in at the desk and retrieved a shopping cart and was given several bags of goods which he placed in the shopping cart. As he left the premises through a passageway which he had not previously used, he hit his head on a stairwell, fell and became disoriented. He stated that the stairwell looked like an illusion and he thought he was able to pass through it, but instead he struck it with his head. A young woman helped him up Rand back into the food bank. He attempted to report the incident, but he decided to leave the premises and go home.

Once plaintiff arrived home, he stated he laid down because was feeling poorly and he later called the food bank to discuss the incident. He returned to the food bank the following day and completed an accident report. The food bank was unable to locate the young woman who plaintiff stated witnessed the accident and helped him up. Plaintiff stated he then went to the hospital for his symptoms of neck and shoulder pain, arm pain and headaches. He said an MRI revealed a herniated cervical disc, and that due to his evacuation due to Hurricane Katrina, he resumed his treatment in Shreveport, Louisiana. He stated that he continued treatment until 2008 when he sustained a work-related injury, after which he underwent surgery on his wrists and on his cervical spine. He stated that the subsequent accident in 2008 further aggravated the previous condition of his wrists which began when he fell in the food bank. Plaintiffs medical records were admitted into evidence.

On cross-examination, plaintiff admitted that he listed a name as his wife on answers to interrogatories, but that was actually a mistake. He was married to a different person then the person he listed on the interrogatories. Mr. Handy also stated that names of several people whom he claimed as dependents on his tax returns in 2006-2008 were actually mistakes as they were not his dependents. Mr. Handy’s testimony also contains inconsistencies as to whether his injuries were related to the fall in 2005 or to the subsequent accidents he sustained in 2008. Pleadings in the subsequent litigation for the 2008 accident in which Mr. Handy claims he sustained injury to his neck and wrists were introduced into the record.

Patricia Butler testified that she was a friend of plaintiffs who referred him to the Kenner food bank because she had gone there for years with her mother. [7She stated she has used the passageway under the stairwell many times to exit the food bank and that she has never had a problem with it. She stated she was aware she was walking under a stairwell. She stated that she did not see anything hidden. Ms. Butler stated that on the date of this incident, she loaned plaintiff her car to go to the food bank. Sometime later that day she went to plaintiffs house to check on him and he told her about the accident. She saw dried blood on the top of this head and she told him to go to the doctor.

Gerald Dillenkoffer testified that he was employed by the City of Kenner as assistant director of the public works department. He stated that he inspected the food bank on August 5, 2005 at the request of the mayor’s office. He stated that the clearance for the exit under the stairwell is approximately 6 feet and that there was nothing about it that was difficult to see. He stated the City decided to barricade this entrance and to put up a caution sign.

Diane Plauche testified that she was the supervisor for the Kenner food bank and that it moved to its present location in 2001. Ms. Plauche stated she was not present at the time of plaintiffs accident, but that she filled out an accident report of the occurrence when plaintiff returned to the food bank the following day. She stated that the stairwell in the passageway to exit the premises was not hidden or difficult to see. She also stated she had not recorded any previous complaints about the location of the stairwell.

The record also contains a copy of the incident report for this incident, six photographs of the area where the accident occurred taken several months after the accident, as well as plaintiffs medical records and reports.

In this case, the trial judge had the opportunity to observe the demeanor and assess the credibility of witnesses, review evidence, and make a factual determination as to the course of actions from which the injury arose. See, Rosell, R549 So.2d at 844. The trial judge evaluated the conduct of the plaintiff under the circumstances, and along with the other evidence, which included photographs of the scene, found that the stairwell was open and obvious. “Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Sto-bart, 617 So.2d at 882-83. While Mr. Handy insisted that the stairwell was not open and obvious to him, the fact-finder had available testimony of others who were familiar with the area as well as photographs taken of the accident scene. Further, the City presented evidence that there had been no prior complaints regarding that the stairwell obstructed the passageway.

Upon review of the evidence presented, particularly the photographs of the accident scene and the testimony of others who were familiar with the accident location, we find that the trial judge was not clearly wrong in finding that the stairwell was open and obvious and did not present an unreasonable risk of harm. The stairwell appears to be large and unobstructed and there is no indication from the photographs that anything about the stairwell is hidden. We therefore decline to disturb the trial court’s factual findings, which are supported by a reasonable basis in the record.

Expert Testimony

By his second assignment of error, plaintiff contends that the trial court erred in failing to allow his expert to testify as to building code violations. At trial, plaintiff presented the testimony of Ladd Ehlinger, who was qualified as an expert in architecture. Mr. Ehlinger stated that he visited the accident location and measured the clearance under the stairwell in the passageway used by Mr. Handy on the date of the accident. He concluded that the area had insufficient clearance for someone Mr. Handy’s height. However, when plaintiffs counsel asked him 19whether the low clearance was a violation of the applicable building codes, the trial court sustained defendant’s objection and instructed plaintiffs counsel to move on.

We fail to find the trial court abused its discretion in making this ruling. Expert testimony was not required to provide information on whether stairwell violated the building code. Further, the record indicates that defendant stipulated prior to trial that the building in question was built in 1952 and that the clearance under the stairwell was a violation of the 1952 building code at the time it was built. Even if Mr. Ehlinger had testified regarding the code violations, we fail to find that this evidence could substitute for proving the existence of an unreasonable risk of harm. See, Burns v. CLK Investments V. LLC, et al., 10-277, p. 8 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1158, writ denied, 2010-2288 (La.1/7/11), 52 So.3d 886. Based on the record before us, we find that plaintiff failed to meet his burden of proving the stairwell in the passageway presented an unreasonable risk of harm to food bank patrons and the public entity is therefore not liable for his injuries.

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed.

AFFIRMED


author: MARION F. EDWARDS, Chief Judge.

text:
    Eric J. HALVERSON, Jr. v. John A. RONK, Individually, and Central Claims Service, Inc., and Lexington Insurance Company.
    No. 12-CA-85.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.
    John G. Munoz, Garner & Munoz, New Orleans, LA, for Plaintiff/Appellant.

      Bruce A. Cranner, Toni J. Ellington, Frilot L.L.C., New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

12This is an appeal from the grant of a motion for summary judgment in favor of defendant/appellee, Core Distribution, Inc. (“Core”), that dismissed all of the claims made against Core by plaintiff/appellee, Eric Halverson, Jr. (“Mr. Halverson”). We affirm.

The plaintiff, Mr. Halverson, filed a petition for damages asserting that he was injured when he fell off of a ladder. At the time of the fall, Mr. Halverson was at the home of his daughter, Ingrid Halver-son, assisting in the inspection of the building for damages following Hurricane Katrina. Also present was John A. Ronk (“Mr. Ronk”), an independent adjuster. Mr. Ronk placed his ladder against the house and climbed onto the roof. Mr. Halverson followed Mr. Ronk and climbed safely to the roof. While Mr. Ronk remained on the roof to take some measurements, Mr. Halverson attempted to climb down the ladder. He got onto the ladder safely. However, as he attempted to climb down, the feet of the ladder slid out. Mr. Halverson fell onto the concrete below, severely injuring his right shoulder.

|3Mr. Halverson filed this action against multiple defendants, stating multiple causes of action. Most of these claims have been resolved, and the defendants have been dismissed. The only two remaining defendants are Mr. Ronk, who owned the ladder, and Core, the manufacturer of the ladder.

Core filed a motion for summary judgment. After a hearing on the matter, the trial court granted the motion as to Mr. Halverson’s claims for defective construction/composition and defective design, but it denied Core’s motion as to inadequate warnings.

Core filed a subsequent motion for summary judgment regarding the failure to warn claims that was granted by the trial court. It is this judgment that is before this Court on appeal.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. A genuine issue is a “triable issue.” If reasonable persons could disagree after considering the evidence, a genuine issue exists.

Our review of the grant of a motion for summary judgment is de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.

|4The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Whether a particular fact is material can be assessed only in light of the substantive law applicable to the case. La. R.S. 9:2800.57, in part, provides as follows:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

Halverson claims Core failed to provide proper and safe instruction for the use of the ladder and failed to warn of the inherently dangerous conditions of using the ladder.

The ladder in question is an Xtend & Climb model 770 telescoping ladder that is 12 ½ feet long when fully extended. The ladder has several warning labels, including one that states, “Failure to read and follow instructions on this ladder |smay result in injuries or death.” The instructions that come with the ladder include proper set-up and state: “Set single or extension ladder at 75 ½ degree angle by bracing ladder base a distance equal to ¾ of total working length of ladder away from base of vertical support.... Set ladder on firm ground.” There is an additional yellow caution label on the ladder that contains a pictorial representation of the subject ladder with the ladder positioned properly.

Mr. Halverson argued that there was no warning that the base of the ladder should be placed on level ground before a user attempts to climb up the ladder. Given the above law, we find an absence of factual support for an element of the claim, that is that Core had a duty under the law to warn that the base of the ladder should be placed on a level surface before use. We consider this to be a fact that a user of a ladder already knows or reasonably should be expected to know. Therefore, we find that Mr. Halverson failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Thus, there is no material issue of fact remaining to be decided.

Accordingly, we find the motion for summary judgment at issue in this appeal was correctly granted, and we hereby affirm the judgment. We remand the matter to the trial court for further proceedings.

AFFIRMED AND REMANDED

      . It appears from the record that Mr. Ronk remains a defendant in this action.

      . La. C.C.P. art. 966(B).

      . Mariis v. Zemlik, 11-799 (La.App. 5 Cir. 5/8/12), 96 So.3d 509.

      . Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

      . Manís v. Zemlik, supra.

        . La. C.C.P. art. 966(C)(2).

        .Kline v. Farm Bureau Ins. Companies, 06-129 (La.App. 5 Cir. 9/26/06), 942 So.2d 1080, 1083, writ denied, 06-2575 (La.12/15/06), 945 So.2d 697.


author: PAUL A. BONIN, Judge.

text:
    Frances ARMSTRONG on Behalf of the Minor, R.D. v. Abraham JOHNSON and Clear Channel Broadcasting, Inc. a/k/a WQUE 93.3 a/k/a/ Q-93 Radio Station.
    No. 2011-CA-1379.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 5, 2012.

      Robert G. Harvey, Sr., Justin Asher Zit-ler, Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, for Plaintiff/Appellant.
    Brant J. Cacamo, Sidney J. Angelle, Lobman Carnahan Batt Angelle & Nader, New Orleans, LA, for Defendant/Appellee, Clear Channel Broadcasting, Inc.
    Joseph Maselli, Jr., H. Edward Bar-ousse, III, Plauché Maselli Parkerson LLP, New Orleans, LA, for Defendant/Ap-pellee, Texas Pacific Ins. Co.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

LThe trial court dismissed the lawsuit of Frances Armstrong as abandoned due to the failure of any parties in the lawsuit to take any step in its prosecution or defense in the trial court for a period of three years. Mrs. Armstrong filed a motion to set aside the dismissal, which motion the trial court denied, and she now seeks our review of the trial court’s ruling. Mrs. Armstrong argues that the trial court erred by refusing to find that payments made by one settling defendant constitute an acknowledgement that is sufficient to toll the running of abandonment and that this acknowledgment is imputable to other allegedly soli-dary, non-settling obligors. We forego, however, an examination of Mrs. Armstrong’s argument because deficiencies with the record make it difficult, if not impossible, to review ^adequately Mrs. Armstrong’s assignment of error. Accordingly, we dismiss this appeal without prejudice and afford Mrs. Armstrong an additional twenty days from the finality of this judgment within which to pay the estimated costs of this appeal so that the clerk of the district court may prepare a complete record for appellate review.

We now explain our ruling in more detail.

I

In this part, we examine the facts underlying Mrs. Armstrong’s claim and this matter’s procedural history. Mrs. Armstrong filed suit on behalf of her daughter R.D., who was a minor at the time, in 2000 against Abraham Johnson, a disc jockey who broadcasts under the name “Big Abe,” and Clear Channel Broadcasting, as owner/operator of WQUE, for damages arising out of Johnson’s molestation of R.D. Mrs. Armstrong’s petition asserts that R.D. telephoned WQUE and spoke with Mr. Johnson, who was twenty-three at the time, in response to promotions for what was billed as a “Teen Summit.” Mrs. Armstrong also alleges that during the course of the conversation, Mr. Johnson elicited R.D.’s telephone number, and subsequently began to telephone her in return. Mr. Johnson later convinced R.D. to meet him to talk at a local shopping mall. Mrs. Armstrong further avers that on July 8,1999, Mr. Johnson picked up R.D. at her residence, drove her to a Super 8 Motel on Chef Menteur Highway in New Orleans, and proceeded to disrobe, molest, and have intercourse with R.D. Mrs. Armstrong further avers that Mr. Johnson again visited, and engaged in carnal acts with, her I ^daughter on August 13, 1999, when R.D. was at home babysitting several other minor children.

Mrs. Armstrong contends that her daughter suffered, among other things, physical abuse, physical pain and suffering, mental pain and suffering, loss of consortium, and loss of future wages. Mrs. Armstrong also contends that Mr. Johnson was, at all times, acting in the course and scope of his employment with Clear Channel Broadcasting, Inc., as a WQUE disc jockey.

Mrs. Armstrong filed a first supplemental and amending petition on July 12, 2000. Mr. Johnson was served with the initial petition on July 13, 2000, while the first supplemental and amending petition was served on February 21, 2001. Mr. Johnson failed to answer either petition within the delays allowed by law. Consequently, Mrs. Armstrong took a preliminary default against Mr. Johnson on May 24, 2001. Mrs. Armstrong subsequently confirmed the default judgment on May 2, 2002, and the trial court cast Mr. Johnson in judgment for $2,500,000.00. Mr. Johnson did not seek appellate review of the judgment rendered against him.

Following the default on Mr. Johnson, Mrs. Armstrong filed second, third, and fourth supplemental and amending petitions wherein she added as additional defendants the Louisiana Insurance Guaranty Association, in the stead of Reliance Insurance Company, Clear Channel’s now-insolvent primary insurance carrier, and Texas Pacific Insurance Company, Clear Channel’s excess carrier. On March 13, 2006, the trial court granted a motion for partial summary judgment filed by Texas 14Pacific, and held that Texas Pacific’s insurance policy does not “drop down” to provide primary liability coverage due to the insolvency of Reliance. On March 20, 2006, the trial court granted a motion for partial summary judgment filed by Clear Channel, and held that Clear Channel has a $1,000,000.00 credit as to any judgment the plaintiff may obtain against Clear Channel due to Reliance’s insolvency. On the same day, the trial court also certified Clear Channel’s judgment as final and ap-pealable. On March 22, 2006, the trial court granted a motion for summary judgment filed by LIGA and dismissed all of plaintiffs claims against LIGA. The trial court subsequently certified its judgment in favor of LIGA as final and appealable. Mrs. Armstrong did not seek appellate or supervisory review of any of the foregoing rulings.

Mr. Johnson filed a motion to nullify the default judgment on April 16, 2007, which the trial court denied on July 5, 2007. Subsequently, on October 11, 2007, Mrs. Armstrong filed a motion to examine judgment debtor. The parties allege that the motion was heard on November 30, 2007. The record, however, does not reflect that the motion was heard or the outcome of the hearing. Following this, the record before this suggests that no other activity occurred on the trial court’s record.

Is After this hearing, no other steps in the prosecution or defense of this matter took place until Texas Pacific filed its ex parte motion for abandonment on December 1, 2010, which the trial court granted on December 2, 2010. Mrs. Armstrong filed a timely motion to set aside the dismissal on December 29, 2010. Mrs. Armstrong argued that abandonment had not run on her claim because certain actions of Mr. Johnson taken outside the formal record of this matter constitute a waiver sufficient to toll the running of abandonment. Mrs. Armstrong first noted that subsequent to the judgment debtor rule, she agreed to accept $150,000.00 from Mr. Johnson as some type of settlement. Between May 15, 2008, and April 15, 2009, Mr. Johnson later made five partial payments, totaling $1,800.00, to the plaintiff. Mrs. Armstrong also alleged that Mr. Johnson and Clear Channel are solidary obligors because Mr. Johnson was acting within the course and scope of his employment with Clear Channel at all times. Accordingly, Mrs. Armstrong argued to the trial court that Mr. Johnson’s partial payments — none of which was filed contemporaneously into the record — constitute an acknowledgement that is sufficient to toll the running of abandonment and that this acknowledgment is imputable to Clear Channel and Texas Pacific pursuant to La. Civil Code article 3464. The trial court took the matter under advisement. Refusing to hold that Mr. Johnson’s payments pursuant to a settlement agreement resulted in an ^acknowledgement sufficient to stop the running of abandonment, the trial court denied the motion, and issued reasons for judgment on May 5, 2011.

II

Given that problems with the preparation of the record have constrained our review of this matter, it now behooves us to examine the events surrounding the mechanics of Mrs. Armstrong’s appeal, and the preparation of the present record.

Mrs. Armstrong timely filed her motion for devolutive appeal on July 1, 2011. The trial court signed the accompanying order on July 14, 2011. On July 21, 2011, the clerk of the district court sent a notice of estimated costs to Mrs. Armstrong. On August 10, 2011, Mrs. Armstrong filed a pleading entitled, “Motion For Extension Of Time In Which To Designate The Record,” wherein she noted that she was unable to afford reproduction of the entire record, indicated that she was filing a contemporaneous motion to designate the record, requested an extension so that the clerk of the district court could provide a revised estimate of costs, and prayed for an extension of the date on which the foregoing costs would be due. Simultaneously, Mrs. Armstrong also filed a motion to designate the record, which the trial court granted on August 10, 2011. Finally, the clerk of the district court completed the preparation of the record and issued its sworn certificate on September 15, 2011.

J¿n

In this part, we examine the law concerning designated records, and its application to the facts of this case. In order to avail herself of designating the record, an appealing party “within three days, exclusive of holidays, after taking the appeal ... may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal.” La. C.C.P. art. 2128 (emphasis added). Mrs. Armstrong’s designation of the record is clearly too late, and as such should have been denied by the trial court. Bonner v. Goldberg, 11-0768 (La.App. 4 Cir. 11/2/11), 76 So.3d 1284. See also Bateman v. Power Rig Rental Tool Co., 428 So.2d 1348 (La.App. 3 Cir.1983).

“When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.” La. C.C.P. art. 2128. See also Bezet v. Original Library Joe’s, Inc., 01-1586, pp. 6-7 (La.App. 1 Cir. 6/21/02), 835 So.2d 472, 475. The resulting record on appeal before us does not include the second, third, and fourth supplemental petitions. Moreover, Texas Pacific’s, Clear Chanel’s, and LIGA’s respective motions for summary judgment are not included in the record. The pleadings and memoranda that resulted in this Court’s action in Armstrong v. Johnson, 04-0980 (La.App. 4 Cir. 7/1/04), unpub., are not included in the record.

Mrs. Armstrong’s record-designation is also deficient for another reason. An appealing party who designates only portions of the record on appeal “must serve with his designation a concise statement of the points on which he intends to | srely, and the appeal shall be limited to those points.” La. C.C.P. art. 2129 (emphasis added). Here, Mrs. Armstrong’s attempted designation is void of any statement whatsoever of the points on which she intends to rely. Thus, even if we found the designation timely (which it is not), we would be woefully constrained in our review of,the already-truncated record. See Ice v. Dry Klean Carpet Maintenance Co., 03-0525, pp. 4-5 (La.App. 4 Cir. 12/3/03), 863 So.2d 596, 598-599; see also Peyton Place, Condominium Associates, Inc. v. Guastella, 08-365, p. 11 (La.App. 5 Cir. 5/29/09), 18 So.3d 132, 141 (“This appeal is limited to the points relied upon in the Article 2128 Determination pursuant to La. C.C.P. art. 2129.”).

In effect, we have no evidentiary record. See Bonner, 11-0768, p. 5, 76 So.3d at 1287. “The appellant has the duty to secure either a transcript of the testimony or a narrative of the facts; and the inadequacy of the record, if any, is imputable to the appellant.” Olson v. Olson, 04-1137, pp. 4-5 (La.App. 5 Cir. 3/1/05), 900 So.2d 52, 54-55. Ordinarily, “[i]n such cases where the record contains neither a transcript nor a narrative of facts agreed to by the parties, there is nothing for appellate review and the trial court’s ruling is presumed correct.” Id., p. 5, at 55. Moreover, the jurisprudence provides that the effect to be given to an appellant’s failure to comply with the procedure for taking a limited appeal “lies within the sound discretion of the appellate court.” Weber v. Press of H.N. Cornay, Inc., 135 So.2d 925, 927 (La.App. 4 Cir.1962). “The Courts may or may not dismiss the appeal for such failure.” Id.

|nThe parties have argued in this Court that the issue of abandonment in this case is a strictly legal one. Our limited review, however, of the already truncated record gives us great pause, especially in light of the horrendous underlying facts, and forces us to doubt the completeness of the record as designated by Mrs. Armstrong. Given our well-founded doubts about the record, and the failure on Mrs. Armstrong’s part to comply with articles 2128 and 2129 of the Louisiana Code of Civil Procedure, we cannot ascertain from the record whether this case was in fact abandoned.

The proper judgment upon this record, especially in the light that the record-designation was untimely, is to dismiss this appeal without prejudice and afford the appellant, Frances Armstrong, an additional twenty days from the finality of this judgment within which to pay the estimated costs of the appeal so that the clerk of the district court may prepare a complete record, including pleadings and transcripts, of the proceedings below. See Bonner, 11-0768, pp. 5-6, 76 So.3d at 1287. If Mrs. Armstrong fails to timely pay the estimated costs within the time specified, the trial court shall proceed under La. C.C.P. art. 2126 E.

DECREE

The instant appeal of Frances Armstrong is dismissed without prejudice.

APPEAL DISMISSED WITHOUT PREJUDICE

LOMBARD, J., concurs in the result.

      . The trial court did not specify whether the dismissal was with or without prejudice. See La. C.C.P. art. 1844 ("A judgment of dismissal with or without prejudice shall be rendered and the effects thereof shall be regulated in accordance with the provisions of Articles 1671 through 1673”). In light of the silence in the trial court’s ruling, on our own motion, see La. C.C.P. arts. 2129 and 2164, and Merrill v. Greyhound Lines, Inc., 10-2827 (La.4/29/11), 60 So.3d 600, we directed that the parties file supplemental briefs on whether a dismissal ordered under La. C.C.P. art. 561 is a dismissal with or without prejudice. The parties are in accord that a dismissal under Article 561 is "without prejudice.” See Tasch, Inc. v. Horizon Group, 08-0635, p. 4 (La.App. 4 Cir. 1/7/09), 3 So.3d 562, 565 ("However, dismissals under La. C.C.P. art. 561 are to be without prejudice. DeSalvo v. Waguespack, 187 So.2d 489 (La.App. 4 Cir. 1966). Therefore, the trial court's judgment of dismissal is hereby amended to read without prejudice.”) The parties are not in accord, however, as to any effect on prescription such a distinction would have on a subsequently filed lawsuit, and we decline to express any view on that issue. The jurisprudence provides that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. See Hunter v. R.J. Reynolds Tobacco Company, 11-1433 (La.App. 4 Cir. 4/11/12), 89 So.3d 1256, citing to Schwegmann Family Trust No. 2 v. White III, LLC, 11-0611, p. 13 (La.App. 4 Cir. 9/30/11), 76 So.3d 1228, 1236.

      . These supplemental and amending petitions are not included in the record, although it appears that Mrs. Armstrong designated them for inclusion.

      . Texas Pacific's motion for partial summary judgment is not included in the record.

      . Clear Channel’s motion for partial summary judgment is not in the record.

      . LIGA’s motion for summary judgment is not in the record.

      . This Court’s records, however, indicate that Mrs. Armstrong sought interlocutory review in 2004 of a partial summary judgment granted to Clear Channel on the issue of “drop down” coverage. This Court reversed the trial court’s summary judgment in favor of Clear Channel at Armstrong v. Johnson, 04-0980 (La.App. 4 Cir. 7/1/04), unpub. However, the pleadings underlying the trial court’s ruling, as well as the parties' memoranda to this Court, are not included in the present record.

      . Mrs. Armstrong’s settlement agreement is a letter, dated April 16, 2008, from Mr. Johnson to the plaintiff’s attorney, wherein he wrote: "Please let this letter confirm our conversation today wherein you advised me that you will accept $150,000 for the judgment you obtained.” The record contains no formal acceptance from the plaintiff in response to Mr. Johnson’s letter.

      . A letter from Mr. Johnson to the plaintiff’s attorney discussing the terms of the settlement and copies of the five checks were introduced into evidence at the hearing on plaintiff’s motion to set aside, and are included in the record.

      . The foregoing notice is not in the record.

      . The clerk of court’s certificate certifies that the record before this Court “includes all pleadings, evidence and documents in the matter." A simple perusal of the record shows this statement to be false.