author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Graley ROBERSON, Appellant.
    No. 46,697-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Bruce G. Whittaker, Paula C. Marx, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

|, The defendant, Graley Roberson, was convicted of possession of 400 grams or more of cocaine, a Schedule II controlled dangerous substance, in violation of La. R.S. 40:967. He was adjudicated a second felony offender and sentenced to 15 years’ imprisonment, without benefit of probation, parole, or suspension of sentence. The defendant appeals. For the reasons discussed below, the defendant’s conviction and sentence are affirmed.

FACTS

On March 1, 2007, Agent Darin Marshall of the Caddo Parish Sheriffs Office obtained search warrants for 500 West 65th Street and 440 Gravois Drive, which are both located in Shreveport, Louisiana. The warrants were obtained pursuant to an affidavit executed by Marshall in which he detailed four controlled drug buys conducted between a confidential informant and the defendant under surveillance. These controlled drug buys took place on January 10, 2007, January 23, 2007, February 16, 2007, and March 1, 2007. In each instance, the defendant was observed departing from and/or returning to one of the aforementioned residences when traveling to/from the prearranged location of the controlled drug buy.

The execution of the search warrants took place on March 1, 2007. Prior to entering the homes, the officers observed the defendant leave the residence at 500 West 65th Street, and followed him to a residence located on Woodrow Street. When he pulled into the driveway, the officers approached the defendant, who admitted that he had drugs in the trunk of a vehicle parked at his mother’s home at 508 West 65th Street. The defendant Rwas patted down and found to be in possession of two plastic baggies of suspected cocaine. The defendant was then transported to his mother’s residence in a patrol vehicle. The defendant led the officers to a vehicle located behind 508 West 65th Street and opened the trunk, whereby the officers discovered a cooler containing several bags with a substance inside which field tested positive for cocaine. The baggies weighed approximately 725 grams. Subsequent searches of 500 West 65th Street and 440 Gravois Drive yielded assorted drug paraphernalia and documents relating to suspected drug activity. Roberson was subsequently arrested.

On April 4, 2007, Roberson was charged, via bill of information, with one count of possession of 400 grams or more of cocaine, a Schedule II controlled dangerous substance, in violation of La. R.S. 40:967(F)(1)(C). On October 18, 2007, defendant filed a motion to suppress which came for hearing on November 8, 2007.

At the hearing, the state relied on the testimony of Officers Christopher Bane, C.L. Lindsay, Randy Benton, David Recc-hia, and Case Agent Darin Marshall, five of the nine officers who assisted in the execution of the warrants on March 1, 2007. Marshall, the case agent, testified that he asked Bane to make contact with the defendant while he was away from the property, since his investigation of the defendant indicated a history of gun possession, which might pose a danger during the operation. Marshall also indicated that by making contact, officers might be able to obtain keys to the residences and avoid any property damage that would result from forced entry.

IsAfter Officer Christopher Bane made contact with the defendant, Marshall arrived shortly thereafter. Marshall promptly advised him of his Miranda rights and informed him that he was a suspect in an investigation, for which Marshall had obtained search warrants. He told the defendant that he “knew” about West 65th Street and Gravois Drive. Marshall denied threatening, inducing or coercing the defendant into providing any information. Nevertheless, Marshall testified that the defendant responded to this information by stating that he did not want his mother involved and admitting that he had “fourteen ounces of bad dope and nine ounces of good dope.” The defendant then agreed to show Marshall where the drugs were located.

Marshall testified the defendant was also searched on officer safety grounds. The search was conducted by Officer C.L. Lindsay, who testified that the search was conducted because he was about to transport the defendant in his patrol unit to the 500 West 65th Street address, and he wanted to ensure the defendant did not have any weapons. When the defendant got nervous during the pat-down, Lindsay asked him if he had anything illegal or any weapons on his person. He admitted to having “dope” in the front left pocket of his overalls, where Lindsay found 31 grams of suspected cocaine and approximately $1,500.00 in currency.

Lindsay then transported the defendant, who was not handcuffed, in his police vehicle to 500 West 65th Street. Once at the residence, the defendant led Marshall, Recchia and Benton to a vehicle behind the residence next door bearing the address 508 West 65th Street. The residence | ¿belonged to defendant’s mother, but Marshall testified that he was unaware of this fact at the time the search warrants were obtained, or at the time the defendant was questioned on Woodrow Street. When they arrived at the vehicle behind the residence, Marshall handed the defendant his keys, and the defendant used them to open the trunk of the vehicle. Once it was open, the defendant pointed at a cooler located in the trunk and told detectives, “That’s all I’ve got.” Inside the cooler, detectives found a coffee can and some plastic baggies containing approximately 725 grams of suspected cocaine.

Officer Randy Benton testified that he was present when the trunk of the vehicle parked behind 508 West 65th Street was opened. He stated that once the trunk was opened, the defendant pointed to an Igloo cooler and said “that’s all the narcotics I had [sic ].” Benton asserted that he subsequently searched the rest of the vehicle with the defendant’s consent and found a red and beige tackle box containing drug paraphernalia such as plastic baggies, spoons and “possibly” a scale. While Benton participated in the subsequent search of 500 West 65th Street, he testified that he did not personally locate any items of contraband during that search.

Officer David Recchia testified that he also came in contact with the defendant at 500 West 65th Street. Recchia indicated he witnessed Marshall advising the defendant of his Miranda, rights. According to Recchia, the defendant then led Marshall to the vehicle parked behind 508 West 65th Street where he provided the defendant with his keys. The defendant then used the keys to open the trunk of the vehicle and informed the officers that Rthe drugs were in an Igloo cooler in the trunk. Recchia further testified that a digital scale was found in the trunk and that a tackle box with drug paraphernalia was also recovered from the vehicle.

Recchia testified that after the search of the vehicle, the defendant was taken inside the 500 West 65th Street residence where he was again advised of his Miranda rights. Defendant proceeded to answer numerous questions posed by Recchia, admitting that he “cooked” the “crack” himself using a coffee cup and the microwave. Defendant also admitted that he would buy the raw drugs in Dallas and ship them to his residence using a female’s name as the addressee. Recchia then went next door and talked to the defendant’s mother in an effort to obtain consent to search her home, which she refused to give. Both Recchia and Benton testified that no threats or inducements were made toward the defendant in order to obtain information about the location of drugs.

The defendant’s mother, Lillian Roberson, testified that she lived at 508 West 65th Street and that the Oldsmobile Delta 88, which officers searched that day, belonged to her. She stated that at no point did she give consent for anyone to search the vehicle or her property. On cross-examination, however, she admitted that she no longer drove and that the defendant used the vehicle and had a key to it.

The defendant testified that the house on Woodrow Street where he was confronted by law enforcement belonged to Michael Mitchell, an individual performing renovation work for him on a residence where the defendant’s estranged wife was living. Because of his physical infirmities, lathe defendant had remained in the car and was in the process of calling Mitchell to get him to come out and talk to him when Bane knocked on his window and asked him to step out of the vehicle. Bane then asked for the defendant’s driver’s license, which he produced. Defendant also asserted that Bane then asked him to empty his pockets and questioned him about where he was going.

Defendant testified that shortly after he had been approached by Bane, Agent Marshall arrived and told the defendant, “You can either make this easy or make this hard. I know you got a package.” Agent Marshall continued by telling the defendant that he had three search warrants, one for defendant’s house, one for his girlfriend’s house, and one for his mother’s house. According to defendant, he was told to “think about it” and was then transported to 500 West 65th Street.

When they arrived at 500 West 65th Street, defendant led the officers into his residence through the back door. Once inside, the defendant asserted that Marshall told him that “if I gave [Agent Marshall] what he wants” that he would not go “next door.” Concerned about his mother’s health and that Agent Marshall might arrest her, the defendant told Agent Marshall he would show him where “it” was in the backyard. The defendant then led the officers to the Delta 88 behind his mother’s house. The defendant claimed the car had not been used since 2001 and that he was not the only one with access to it.

After the taking of testimony, the trial court denied the motion to suppress. The defendant was subsequently tried before a jury on November |715, 2007. During the trial, the jury heard evidence basically consistent with that presented to the court by the state during the motion to suppress. Additionally, the state presented evidence that the substance found inside the cooler was cocaine weighing 605.6 grams, and that the substance found on defendant’s person was also cocaine weighing 30.1 grams.

At the conclusion of the state’s case, the defendant moved for a mistrial on the basis of references to other crimes evidence. The state argued that to the extent these were references to other crimes by the defendant, they fell under the res gestae exception. The trial court denied the motion for mistrial.

The jury returned a unanimous verdict of guilty as charged. The defendant filed a motion for new trial on November 29, 2007. That same day, the state filed a bill of information charging the defendant as a second-felony habitual offender. On April 28, 2008, the defendant pled guilty to being a second-felony offender in exchange for an agreed sentence of 15 years at hard labor, without the benefit of probation, parole or suspension of sentence, and a $250,000.00 fine.

After being sentenced, defendant appealed his conviction and sentence for possession of 400 grams or more of cocaine in State v. Roberson, No. 44,116-KA. However, because the trial court had not ruled on defendant’s timely filed motion for new trial, this Court issued a per curiam opinion vacating defendant’s sentence and remanding to the district court for further proceedings. Upon remand, the defendant withdrew his motion for new trial on September 10, 2009, and appealed again in State v. Roberson, No. 45,448-KA. This time, the record indicated that while the motion for new trial was no longer pending, the defendant had not been resen-tenced. Accordingly, defendant’s appeal was deemed premature and remanded yet again. Defendant was resentenced on April 20, 2010, to 15 years at hard labor, without the benefit of probation, parole or suspension of sentence. The present appeal followed.

LAW AND DISCUSSION

ASSIGNMENT OF ERROR NUMBER ONE BY COUNSEL AND PRO SE

The defendant asserts that the trial court erred in denying his motion to suppress, specifically arguing that his initial detention was illegal since Officer Bane had no knowledge of the information which served as the basis for the search warrants obtained by Agent Marshall. Furthermore, he contends that his consent to the search of the Delta- 88 constituted an exploitation of that illegality and any evidence seized pursuant to such consent should have been suppressed.

The Fourth Amendment of the Constitution of the United States guarantees the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures. This amendment is made enforceable against the states through the Fourteenth Amendment. Article I, § 5 of the Louisiana Constitution guarantees the right of the people to be secure in their person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. A warrant-less search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Tatum, 466 So.2d 29 (La.1985); State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168.

A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993); State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215. A traditional exception to the warrant requirement is a search incident to a lawful arrest based upon probable cause. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973). It is also well established that searches incident to arrest conducted immediately before formal arrest, are valid if probable cause to arrest existed prior to the search. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980); State v. Shennan, 2005-0779 (La.4/4/06), 931 So.2d 286, 295.

Consent to search is also one of the recognized exceptions to the warrant requirement, where the consent is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). When the state relies on consent to justify a warrantless search, it has the burden of proving the consent was freely and voluntarily given. Voluntariness of consent is a question of fact which the trial judge must determine based on a totality of the circumstances. State v. Edwards, 434 So.2d 395 (La.1983); State v. Jennings, 39,543 (La.App.2d Cir.3/2/05), 895 So.2d 767, writ denied, 05-1239 (La.12/16/05), 917 So.2d 1107; State v. Paggett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072. If consent to search is obtained after an illegal detention or entry, the consent is valid only if it was the product of free will and not the result of exploitation of the previous illegality. State v. Owen, 453 So.2d 1202 (La.1984).

The Fourth Amendment to the U.S. Constitution prohibits only warrant-less arrests made without probable cause or in cases involving a nonconsensual entry into a residence for the purpose of a routine felony arrest. It is a well-settled constitutional principle that the police may arrest a person in a public place, even without a warrant, so long as they have probable cause to believe that the individual has committed a crime. See United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

Probable cause to arrest exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense. State v. Parker, 2006-0053 (La.6/16/06), 931 So.2d 353; State v. Ceaser, 2002-3021 (La.l0/21/03), 859 So.2d 639, 644. The determination of probable cause for an arrest does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all of the circumstances known to the officer at the time of his challenged action. State v. Kalie, 96-2650 (La 9/19/97), 699 So.2d 879, citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Probable cause can also be demonstrated through the collective knowledge of all of the police officers involved in the investigation, even if some of the information is not communicated to the arresting or searching officers. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019. The searching-arresting officer can act on the basis of information of which he has no personal knowledge which has been relayed to him by police transmission facilities. United States v. Impson, 482 F.2d 197 (5th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973). The officer who issues the directive, however, must himself have probable cause to arrest. Weeks v. Estelle, 509 F.2d 760, 765 (5th Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 139, 46 L.Ed.2d 103 (1975).

Absent probable cause to arrest, law enforcement officers have the right to stop and question a person where there is “reasonable suspicion” to believe that the person is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A trial court’s decision to deny 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. Whitehead, 42,-677 (La.App.2d Cir.4/2/08), 980 So.2d 243, writ denied, 2008-1096 (La.1/9/09), 998 So.2d 713; State v. Normandin, 32,927 (La.App.2d Cir.12/22/99), 750 So.2d 321, writ denied, 00-0202 (9/29/00), 769 So.2d 550. When reviewing a motion to suppress, it is important to determine who has the burden of proof |12and the proper standard of review. Whitehead, supra. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La.App.2d Cir.9/22/99), 748 So.2d 31.

The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pretrial motion to suppress. State v. Young, 39,546 (La.App.2 Cir.3/2/05), 895 So.2d 753; Whitehead, supra. Great weight is placed upon the trial court’s determination, because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2 Cir.5/8/96), 674 So.2d 1082, citing State v. Jackson, 26,138 (La.App.2 Cir.8/17/94), 641 So.2d 1081. Accordingly, this court will review the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App.2 Cir.11/17/06), 942 So.2d 1263, citing State ex rel Thibodeaux v. State, 2001-2510 (La.3/8/02), 811 So.2d 875.

In the instant case, the defendant argues that his consent to the search of the vehicle behind his mother’s house was tainted by his initial detention by Officer Bane. He believes that this detention warrants suppression of the cocaine seized pursuant to that search. The trial court noted that the existence of probable cause to make a warrantless arrest of the defendant renders any analysis of the propriety of the stop under the dictates of Terry unnecessary.

By his own admission Bane observed no traffic violations, and by defendant’s own admission, he was not stopped for one. Rather the defendant was approached by Bane when he pulled into a private driveway. Bane asked him for his driver’s license which defendant produced. Their encounter lasted no more than a minute before Marshall arrived and asked the defendant to step out of his vehicle whereupon he read the defendant’s Miranda rights.

Marshall’s information, unchallenged by the defendant either at the motion to suppress or in brief, included four different controlled “drug buys” between the defendant and a confidential informant, the last of which had taken place the very same day the defendant was approached by Officer Bane. The last buy was arranged pursuant to a call monitored by Agent Marshall and took place under his surveillance. These facts formed the basis to justify a man of ordinary caution believing that defendant had committed a felony offense.

The fact that Bane was unaware of the information upon which Marshall had obtained the search warrants, and therefore whether probable cause existed for the defendant’s arrest, is irrelevant. Marshall had directed Bane to detain the defendant. Even though Bane did not have personal knowledge of the facts establishing probable cause, he was carrying out the directions of Marshall, who did have probable cause to arrest the defendant. Pursuant to the “collective knowledge” doctrine, the fact that Bane was 114unaware of the information upon which Marshall obtained the search warrant, and therefore whether probable cause existed for the defendant’s arrest is not relevant.

The warrantless search of the defendant’s person was valid as a search incident to a lawful arrest, based on probable cause. Furthermore, the warrantless search of the vehicle behind the defendant’s mother’s house was also valid as having been conducted pursuant to lawfully obtained consent which, as noted above, was not the product of an illegal detention or entry.

These assignments of error are therefore without merit.

ASSIGNMENT OF ERROR NUMBER TWO BY COUNSEL AND PRO SE

In these assignments, the defendant argues that the trial court erred in denying the motion for a mistrial due to repeated direct references to inadmissible other crimes evidence. More specifically, he asserts that the State repeatedly proffered evidence that he was also a dealer of cocaine.

Except as otherwise provided in La. C.E. Art. 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any evidence it intends to introduce at trial for such purposes, or when it relates 115to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. 404(B)(1).

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” State v. Richardson, 46,360 (La.App.2 Cir.6/22/11), 71 So.3d 492. This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973). Evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that forms an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Colornb, 98-2813 (La.10/1/99), 747 So.2d 1074; State v. Coates, 27,287 (La.App.2d Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365.

References to the res gestae of a crime during opening statements are neither improper nor prohibited. State v. Jackson, 450 So.2d 1053 (La.App. 1st Cir.1984), writ denied, 494 So.2d 321 (La.1986). The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant unless the statement has been previously ruled admissible in the case. La. C. Cr. P. art. 767.

The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Gatti, 39,833 (La.App.2d Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511.

11fiThe law regarding mistrials on the grounds of improper references to other crimes is well settled. La. C.E. art. 404(B) provides that evidence of other crimes, acts or wrongs is generally not admissible. La. C. Cr. P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Ellis, 42,520 (La.App.2d Cir.09/26/07), 966 So.2d 139. For purposes of article 770, a law enforcement officer is not considered a “court official,” and an unsolicited, unresponsive reference to other crimes evidence made by a law enforcement officer is not grounds for a mandatory mistrial under La. C. Cr. P. art. 770. State v. Ellis, supra; State v. Scott, 34,949 (La.App.2d Cir.01/25/02), 823 So.2d 960, writ denied, 02-1622 (La.05/16/03), 843 So.2d 1122.

La. C. Cr. P. art. 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under article 770. La. C. Cr. P. art. 775 also sets forth additional permissive grounds for mistrial. Under these articles, mistrial is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the- defendant to obtain a fair trial. State v. Ellis, supra. Moreover, mistrial is a drastic remedy which is authorized only where substantial prejudice will otherwise result to the accused. State v. Kemp, 39,358 (La.App.2d Cir. 03/l 1/05), 17 896 So.2d 349, writ denied, 05-0937 (La.12/09/05), 916 So.2d 1052. A trial court’s ruling denying mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La.01/17/01), 776 So.2d 443, appeal after remand, 04-0765 (La.App.4th Cir.10/27/04), 888 So.2d 329, writ denied, 04-2919 (La.03/18/05), 896 So.2d 1003, cert. denied, 546 U.S. 867, 126 S.Ct. 154, 163 L.Ed.2d 154 (2005); State v. Taylor, 30,310 (La.App.2d Cir.02/25/98), 709 So.2d 883.

Even if a mistrial was warranted under article 770, 771, or 775, the failure to grant a mistrial would not result in an automatic reversal of defendant’s conviction, but'would be a trial error subject to the harmless error analysis on appeal. State v. Givens, supra; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” State v. Johnson, supra.

A comment must not “arguably” point to a prior crime; to trigger a mandatory mistrial pursuant to Article 770(2), the remark must “unmistakably” point to evidence of another crime. State v. Edwards, 97-1797 (La.7/29/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). Furthermore, under La. C. Cr. P. art. 770, a defendant must object and move for a mistrial after his objection to the prosecutor’s statements. The absence of a timely motion for mistrial under La. C. Cr. P. art. 770 constitutes a waiver of the defect. State v. Shaw, 37,168 (La.App.2d Cir.6/25/03), 850 So.2d 868. See also State v. Gatch, 27,701 (La.App.2d Cir.2/28/96), 669 So.2d 676, writ denied, 96-0810 (La.9/20/96), 679 So.2d 429.

|1sWe find that the defendant’s assignment of error lacks merit for several reasons. First, only one of the references was made by a court official. The prosecutor stated that the defendant had confessed to one of the case agents that he cooked the cocaine in order to make crack for distribution in Caddo Parish. While this is arguably an impermissible reference to an inculpatory statement made by the defendant after his arrest, the error was harmless. The defendant was convicted of possession of more than 400 grams of cocaine. The evidence supporting the conviction was abundant, including the fact that the defendant led investigators to a vehicle, produced the keys to it, and opened its trunk to reveal an Igloo cooler containing more than 600 grams of cocaine. Under these facts, we are certain that defendant’s conviction is not attributable to the state’s arguably impermissible reference to other crimes evidence during opening remarks.

The remainder of the statements were made by witnesses and thus, would not constitute grounds for a mistrial under La. C. Cr. P. art. 770. Nor would the references made warrant a mistrial under the permissive grounds of La. C. Cr. P. art. 771. The comments made by the witnesses did not “unmistakably” point to evidence of another crime.

Sheriffs Deputy Whitehorn explained the discovery of drug paraphernalia among the defendant’s possessions:

STATE: If someone wanted to take a large quantity of cocaine and break it down into smaller quantities of cocaine, would these small baggies ... have you found cocaine to be associated with small baggies such as this?
WHITEHORN: Yes. Usually what they would do if they have a large amount of drugs they would take smaller baggies and |1flbreak them down and put them in individual ones for retail to sell to other people.

Whitehorn’s explanation, that the baggies discovered are typically used in the distri-button of CDS, was no more a reference to the fact that defendant might have been engaged in distribution than the fact that he might have been a frequent purchaser. Since the baggies were discovered in the course of the investigation regarding his possession of the more than 400 grams of cocaine, they formed part of the res gestae.

When Officer Recchia was asked how he came into contact with the defendant, he responded that he was working a narcotics case headed by Agent Marshall which “involved the distribution of cocaine”:

BY THE STATE: How did you come into contact with the defendant?
RECCHIA: We were working a narcotics case involving Mr. Roberson. Case agent assigned to that case was Marshall, Darren Marshall, Caddo Deputy assigned to our task force, involved in the distribution of cocaine.

While this unsolicited comment “arguably” points to the fact that defendant was the one doing the distributing, it does not “unmistakably” point to evidence of distribution by the defendant. State v. Edwards, supra. Nor did Officer Recchia’s explanation of a “cookie,” given at defense counsel’s request, make it impossible for the defendant to receive a fair trial. While Officer Recchia indicated that the cookie could be sold as a whole or could be broken down, he never stated that the defendant had in fact been making any such “cookies.”

|,nWe also note that the defendant’s motion for a mistrial was untimely. He did not make his motion until after the state rested its case, when in fact he should have made the motion at the time of the objections.

Due to the overwhelming evidence against the defendant, we find that any error regarding the “other crimes” evidence was properly cured by the trial court’s admonishments to the jury after the objections were made, and that any such error was harmless. These assignments are therefore without merit.

ASSIGNMENT OF ERROR NUMBER THREE BY COUNSEL AND PRO SE

In these assignments, the defendant assigns as error all errors patent.

La.C.Cr.P. art. 920 states:

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignments of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

In accordance with this article, the record was reviewed for errors patent and none were found. Accordingly, these assignments of error are without merit.

CONCLUSION

For the foregoing reasons, it is respectfully recommended that the defendant’s conviction and sentence be affirmed.

AFFIRMED.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    Bonnie PALUMBO v. Stephen H. SHAPIRO, William A. Pigg, the Law Office of Joseph Charles Bartels, Joseph Charles Bartels, Michael Idoyaga and James Yates.
    No. 2011-CA-0769.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      Henna Ghafoor, David W. Bernberg, The Law Office of David W. Bernberg, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    William E. Wright, Jr., Charlotte C. Meade, Melissa M. Swabacker, Deutsch Kerrigan & Stiles, L.L.P., New Orleans, LA, David S. Daly, Allen & Gooch, ALC, Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|TIn this lawsuit Bonnie Palumbo claims that several attorneys negligently failed to prevent an earlier lawsuit for personal injuries from becoming abandoned due to non-prosecution for more than three years. This lawsuit was tried before a jury, and the trial judge submitted a special verdict form to the jury. The jury completed the special verdict, but its answers to the special written questions were indisputably inconsistent with each other. Rather than return the jury for further deliberations, the trial judge entered a judgment reflecting the jury’s inconsistent answers.

Ms. Palumbo as well as the attorney-defendants and their insurer filed motions for new trial. The trial judge then granted a new trial and at the same time rendered a new judgment in favor of the attorney-defendants, dismissing Ms. Pa-lumbo’s suit with prejudice. Ms. Palumbo now appeals the dismissal of her lawsuit.

| aAfter our de novo review, we conclude that the trial judge, having not returned the jury for further deliberations, was correct in granting the motion for new trial, but erred in rendering judgment dismissing Ms. Palumbo’s case. Moreover, after our review of the disputed operative facts, we further conclude that we cannot render judgment on the basis of the record which has substantive conflicting testimony but are compelled to remand the matter for a new trial. Accordingly, we reverse the judgment dismissing Ms. Palumbo’s suit with prejudice and remand the matter for a new trial.

We explain our decision in greater detail below.

I

Ms. Palumbo initially sought damages from attorneys Steven H. Shapiro, William A. Pigg, Joseph Charles Bartels, the Law Office of Joseph Charles Bartels, Michael Idoyaga, James Yates, and Clayton Bank-ston, as well as their respective insurers. Ms. Palumbo contends that the defendants represented her at various times in connection with a personal injury lawsuit that arose out of a 1996 automobile accident. Ms. Palumbo’s personal injury claim was dismissed for abandonment in 2000. See La. C.C.P. art. 561 A(l). Shortly thereafter, she filed the present suit against the foregoing defendants, claiming entitlement to damages and arguing that the attorney-defendants committed malpractice by allowing her case to lapse through non-prosecution.

Before the case was submitted to the jury, several of the original defendants were dismissed. Mr. Bankston was dismissed from the case prior to trial on an I,.¡exception of peremption. Mr. Idoyaga and Mr. Yates were dismissed on the day of trial pursuant to an exception of no cause of action. Mr. Shapiro was dismissed from the case pursuant to a directed verdict at the close of plaintiffs case. None of these originally named defendants are before us on this appeal.

Ms. Palumbo’s malpractice suit proceeded to trial by jury. At trial, the remaining defendant-attorneys defended against Ms. Palumbo’s claims by arguing that, because they did not enter into an attorney-client relationship with her, they committed no legal malpractice. Ms. Palumbo claimed that she did have an attorney-client relationship with each of the attorney-defendants.

Upon the conclusion of the evidence, argument, and jury instruction, the trial judge submitted without objection a special verdict form under La. C.C.P. art. 1812 to the jury, which it completed as follows:

1.Do you find by a preponderance of the evidence that plaintiff, Bonnie Pa-lumbo, had an attorney-client relationship with defendant, William Pigg, on June 6, 2000?
Yes 2 No 10
(If you answered “Yes”, please proceed to question no. 2. If you answered “No”, then please proceed to question no. 4.)
2. Do you find by a preponderance of the evidence that defendant, William Pigg, bi'eached the standard of care applicable to lawyers in his representation of plaintiff, Bonnie Palumbo? Yes_No_
3. Do you find by a preponderance of evidence that defendant, William Pigg, caused or contributed to plaintiffs damages?
Yes_No_
4. Do you find by a preponderance of evidence that plaintiff, Bonnie Palum-bo, had an attorney-elient relationship with 14Joseph Charles Bartels and/or the Law Office of Joseph Bartels on June 6, 2000?
Yes 2 No 10
(If you answered “Yes”, please proceed to question no. 5. If you answered “No”, then please proceed to question no. 7.)
5. Do you find by a preponderance of the evidence that defendant(s), Joseph Charles Bartels and/or The Law Office of Joseph Bartels breached the standard of care applicable to lawyers in his representation of plaintiff, Bonnie Palumbo?
Yes 3 No 9
6. Do you find by a preponderance of the evidence that defendant(s) Joseph Charles Bartels and/or The Law Office of Joseph Bartels caused or contributed to plaintiffs damages?
Yes 3 No 9
7. Did Clayton Bankston cause or contribute to plaintiffs damages?
Yes 12 No_
8. Did Stephen Shapiro cause or contribute to plaintiffs damages?
Yes 2 No 10
9. Did plaintiff, Bonnie Palumbo, cause or contribute to her own damages? Yes 11 No 1
10. What amount of money in damages do you find will adequately compensate plaintiff, Bonnie Palumbo?
$35,000
11. Please assign a percentage of fault, if any, do you assign to each of the following? (Your total should equal
100%).)
William Pigg 5%
Joseph Bartels/The Law Office of Joseph Bartels 10%
Clayton Bankston 40%
| sBonnie Palumbo 40%
Stephen Shapiro 5%
TOTAL 100%

Despite the inconsistent, even contradictory, answers of the jury, the attorneys polled the jury, and then the trial judge dismissed the jury. Ten days later, the trial court signed a judgment which virtually adopted that portion of the jury’s answers apportioning fault and granting judgment in favor of Ms. Palumbo, awarding her the full amount of damages of $35,000, without any reduction for the 40% fault which the jury apportioned to her. The judgment expressed that it was rendered under La. C.C.P. art. 1813 D. Notably, however, the judgment did not contain any decretal language and did not cast any defendant in judgment. See Input/Output Marine Systems, Inc. v. Wilson Greatbatch Technologies, Inc., 10-477, p. 13 (La.App. 5 Cir. 10/29/10), 52, So.3d 909, 916 (“A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.”)

Because of the jury’s inconsistent answers on the special verdict form, Ms. Palumbo and the remaining defendants filed competing motions for new trial. The relief which Ms. Palumbo sought from her motion was a new trial before another jury. The relief which the attorney-defendants sought from their motion was for the trial judge herself to resolve the inconsistencies by directing a judgment in accordance with the jury’s answers to the written interrogatories which exonerated them of liability and at the same time by disregarding the answers by which it | (¡apportioned fault to them. The attorney-defendants likened the questions about apportionment of fault to a general verdict which might be disregarded under La. C.C.P. art. 1813 D when it is inconsistent with answers to special interrogatories.

The trial court agreed with the attorney-defendants, granted their motion for new trial, and dismissed with prejudice the plaintiffs claims against the remaining defendants.

II

There is no question that in default of returning the jury for further consideration of its answers prior to its discharge the trial judge correctly granted a new trial. The issue which we resolve is whether the trial judge was correct in deciding the merits of the case by disregarding the jury’s apportionment of fault among the parties and non-parties as if such apportionment of fault was a general verdict. “When answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict ...” La. C.C.P. art. 1813 D (emphasis added). Because we conclude that the apportionment of percentages of fault by the jury is not a general verdict, the trial judge was not authorized to disregard the jury’s answers on apportionment of fault in order to render judgment in favor of the attorney-defendants on the basis of the other answers to the written questions on the special verdict form.

We begin by discussing the differing aspects of general verdicts, general verdicts accompanied by answers to written interrogatories, and special verdicts.

|7The Code of Civil Procedure sets out no particular requirements for a general verdict unaccompanied by written interrogatories: “The laws of this state do not require a special form for a general verdict. The test of sufficiency of form for a verdict is whether it decides the issues in question.” O’Quinn v. Kansas City Southern Railroad, 442 So.2d 1317, 1319 (La.App. 3 Cir.1983). “The general verdict asks only for the jury’s conclusion, i.e., which party prevails and, if appropriate, the amount of the award.” 1 La. Civ. L. Treatise, Civil Procedure 11:12 (2d ed.). The “general verdict form instructs the jury to find for either the plaintiff or the defendant, but does not require that the jury inform the court of the basis for their decision.” 3 La. Prac. Civ. Proc. Article 1812 (2011 ed.).

Article 1813, however, controls the use of a general verdict along with the submission of written interrogatories. Under this procedure the jury is asked to expressly identify the prevailing party, and to inform the court of the basis for their decision. “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.” La. C.C.P. art. 1813 A. “The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.” Id. (emphasis added). When the answers and the general verdict are consistent or harmonious, the court must direct entry of judgment upon the verdict and answers. See La. C.C.P. art. 1813 C.

|sBut, because an inconsistency can arise between whom the jury concludes is the prevailing party (general verdict) and its answers providing the basis for their decision, the Legislature provides the court with three options to resolve the inconsistency. “When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may [1] direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may [2] return the jury for further consideration of its answers and verdict, or may [3] order a new trial.” La. C.C.P. art. 1813 D. Thus, a court is authorized to disregard which party the jury identified as the prevailing party when the jury’s answers to interrogatories do not support its general verdict. Importantly, however, “[w]hen the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.” La. C.C.P. art. 1813 E (emphasis added).

Article 1812 controls the use of special verdicts. “The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact.” La. C.C.P. art. 1812 A. When a special verdict form is used, the jury does not identify the prevailing party as it would with a general verdict. Here, the special verdict form substantially complies with the special findings sought in La. C.C.P. art. 1812 C:

C. In cases to recover damages for injury, death, or loss, the court at the request of any party shall submit to the jury special written questions inquiring as to:
|fl(l) Whether a party from whom damages are claimed, or the person for whom such party is legally responsible, was at fault, and, if so:
(a) Whether such fault was a legal cause of the damages, and, if so:
(b) The degree of such fault, expressed in percentage.
(2)(a) If appropriate under the facts adduced at trial, whether another party or nonparty, other than the person suffering injury, death, or loss, was at fault, and, if so:
(i) Whether such fault was a legal cause of the damages, and, if so:
(ii) The degree of such fault, expressed in percentage.
(b) For purposes of this Paragraph, nonparty means a person alleged by any party to be at fault, including but not limited to:
(i) A person who has obtained a release from liability from the person suffering injury, death, or loss.
(ii) A person who exists but whose identity is unknown.
(iii) A person who may be immune from suit because of immunity granted by statute.
(3) If appropriate, whether there was negligence attributable to any party claiming damages, and, if so:
(a) Whether such negligence was a legal cause of the damages, and, if so:
(b) The degree of such negligence, expressed in percentage.
(4) The total amount of special damages and the total amount of general damages sustained as a result of the injury, death, or loss, expressed in dollars, and, if appropriate, the total amount of exemplary damages to be awarded.

| ipThe jury in this case was not asked on the verdict to identify the prevailing party, that is it was not requested to — and did not — return a general verdict. Once the jury returns its special verdicts, “[t]he court shall then enter judgment in conformity with the jury’s answers to these special questions and according to applicable law.” La. C.C.P. art. 1812 D. Article 1812 itself does not direct how the trial court is to resolve inconsistencies in the special verdicts. The Louisiana Supreme Court in Ferrell v. Fireman’s Fund Ins. Co. has instructed us, however, that when the answers on a special verdict form are inconsistent, we are to apply the provisions of La. C.C.P. art. 1813 E. See Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. In Ferrell the jury in responses to a special verdict form found first that the plaintiffs negligence was not a legal or proximate cause of the accident, but nonetheless found him 30% at fault. Id. at 747. But under Article 1812 C the jury must attribute a percentage of fault to a party only if that party is negligent and that negligence was a legal or proximate cause of the injury. Id. Such inconsistent responses to special verdict interrogatories create an error of law. Id.

Here too, the jury’s special verdict reveals that the jury’s answers to interrogatories one, four, and eight conflict with the jury’s response to interrogatory eleven. The jury’s verdict is inconsistent because it assigns a percentage of fault to defendants who it also found had no attorney-client relationship with Palumbo.

|n Applying the mandate of Article 1813 E to the inconsistent findings, a court may either return the jury for further consideration, or may order a new trial. Ferrell, 650 So.2d at 747. A court, however, “shall not direct the entry of judgment ...” Id.

Nonetheless, the attorney-defendants cite to Diez v. Schwegmann Giant Supermarkets, Inc., 94-1089 (La.App. 1 Cir. 6/23/95), 657 So.2d 1066, in support of their proposition that the jury’s apportionment of fault is akin to a general verdict and that we should proceed under Article 1813 D, which would allow for disregarding the fault apportionment. We, however, have previously rejected such a suggestion and instead have applied the Ferrell instruction, which we properly characterized as controlling, that we proceed under the provisions of Article 1813 E. See Stevens v. Scottsdale Insurance Company, 95-2347 (La.App. 4 Cir. 3/27/96), 672 So.2d 1031, 1033. In Stevens the jury inconsistently found that the plaintiff’s negligence was not a proximate of his injuries but apportioned 25% fault to him. Id. The trial judge rendered judgment and proportionally reduced the plaintiffs recovery. Id. We decided that the trial judge erred by directing an entry of judgment rather than either returning the jury for further consideration or ordering a new trial. Id.

As we have already observed, because here the trial judge did not return the jury for further deliberation, the only option available is to order a new trial. The trial judge committed an error of law in not granting Ms. Palumbo’s motion and ordering a new trial.

_bm

The trial court’s failure to either return the jury for further consideration or to order a new trial creates a “fatal error” in the fact-finding process and we do not apply the manifest error standard of review to the trial court’s judgment. See Ferrell, 650 So.2d at 747, and Stevens, 672 So.2d at 1033. ‘Where one or more trial court legal errors interdict the fact-finding process ..., and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record to determine a preponderance of the evidence.” See Ferrell, 650 So.2d at 747. That is, we are authorized to exercise our constitutional authority to review facts and render judgment. See La. Const, art. V, § 10(B). But occasionally a preponderance of the evidence cannot be determined fairly from a cold record, such as when there is substantial testimonial conflict that can only be resolved depending upon the fact-finder’s view of the witnesses’ credibility. See, e.g., Diez, 657 So.2d at 1071. Thus, ordinarily we would proceed to render judgment on the record and remand for a new trial only when a view of the witnesses is essential to a fair resolution of conflicting evidence. See Estate of Cristadoro ex rel. Jones v. Gold-Kist, Inc., 01-0026, p. 28 (La.App. 4 Cir. 1/23/02), 819 So.2d 1034, 1050-1050.

After examining the record, we are convinced that we cannot conduct a de novo review, but must instead remand the matter for a new trial because a view of the witnesses is essential to a fair resolution of the conflicting evidence. Specifically, the remaining defendants, especially Mr. Pigg and Mr. Bartels, hold to the position that they cannot be liable for malpractice because they never entered into an attorney-client relationship with Palumbo.

| |3In order to prevail on a legal malpractice claim, the plaintiff must establish the following three elements: 1) an attorney-client relationship; 2) that the attorney was negligent in his representation of the client; and 3) that negligence caused the plaintiff loss. St. Paul Fire and Marine Ins. Co. v. GAB Robins North America, Inc., 08-0331, p. 8 (La.App. 4 Cir. 11/19/08) 999 So.2d 72, 77. The plaintiff bears the burden of proof with respect to each of these elements. Id. Failure to prove one of these elements is fatal to the claim. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists. Francois v. Andry, 05-0888 (La.App. 4 Cir. 4/5/06), 930 So.2d 995. However, a person’s subjective belief that an attorney represents him must be reasonable under the circumstances. St Paul Fire and Marine Ins. Co., 08-0331, pp. 8-9, 999 So.2d at 77. The requirement that the belief be reasonable is an objective standard. “The claimant’s subjective belief does not establish an attorney-client relationship unless the lawyer reasonably induced that belief.” Ronald E. Mallen and Jeffrey M. Smith, 1 Legal Malpractice § 8:3 (2008 ed.). For this reason, an attorney client relationship cannot exist in the absence of any initial communication — verbal, written, or otherwise — between the attorney and the client. Lirette v. Roe, 93-0441 (La.App. 4 Cir. 1/13/94), 631 So.2d 503, 506.

At trial, Ms. Palumbo testified that she was of the opinion that she had entered into an attorney-client relationship with Mr. Pigg, who was at the time an employee of Mr. Bartels. In fact, Ms. Palumbo testified that she held this opinion | Muntil Mr. Bankston took over her case after a period of three to four months. Mr. Bank-ston worked out of, but was not employed by or affiliated with, the Law Office of Joseph Charles Bartels. Further, Ms. Pa-lumbo testified that Mr. Pigg contacted her, told her that he would be working on her case, and asked her to send him any medical records that she had. Ms. Palum-bo also noted that she had several conversations about her case with Mr. Pigg prior to Mr. Bankston taking over her file:

Q. And if I understand what you’re telling the jury, when that file went to Pigg Bartels, those lawyers, it was your
understanding that those were your lawyers. Is that a fair statement?
A. Yes, sir.
Q. Did those guys ever tell you — Mr. Pigg or Mr. Bartels — “we declined to take your case,” words to that effect?
A. No. The only thing they said to me was — after they had my case for, like, four months and they said they were working on my case. So they never declined my case because they were working on it. Then they said they had this big case that they were working on and that’s when they transferred my case to Mr. Bankston, who was somebody else in their firm. That was the only thing.

Mr. Pigg, on the other hand, testified that Palumbo’s case was referred to him by Mr. Shapiro. Mr. Pigg testified that he picked up the ease, reviewed it, and then went to Mr. Bartels to discuss its merits. Mr. Bartels and Mr. Pigg decided not to take the case, but instead to refer it to Mr. Bankston:

A. After my discussion with Mr. Bartels as to whether or not we would undertake representation of Ms. Palum-bo, it was suggested that I run that case, meaning the Palumbo case and one of the other cases by Mr. Bankston to see if he wanted the case, either of the cases. I did so.
1 ifiMr. Bankston indicated that he wanted both of those cases. At that time, I got on the telephone with both clients, one after the other. I spoke with Ms. Palumbo. I told her that we declined to undertake the representation, that there was a lawyer working in our office who was interested and did she want to speak with him. I passed the phone to Clayton Bankston.
I overheard Mr. Bankston’s side of the conversation. It was clear that the conversation was getting underway. It sounded like he had things under control. I left the office or the conference room, actually.

Clearly, the versions of events put forward by Ms. Palumbo and Mr. Pigg differ greatly. It is equally clear that these sharp differences cannot be resolved adequately with nothing save a cold transcript. Our review of the record convinces us that the differing factual accounts put forward by the parties cannot be reconciled absent a viewing of the witnesses.

Accordingly, we decline to render judgment on the record before us and instead remand this matter to the trial court for a new trial.

DECREE

We reverse the trial court’s judgment in favor of the defendants, dismissing Bonnie Palumbo’s suit with prejudice. We remand the matter for a new trial. Costs of this appeal to be taxed at the time of the rendering of the final judgment.

REVERSED AND REMANDED

      . The attorney-defendants are William A. Pigg, Joseph Charles Bartels, the Law Office of Joseph Charles Bartels. Their insurer is Westport Insurance Company.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Ulysses COOKS.
    No. 2011-KA-0342.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART.
   ROLAND L. BELSOME, Judge.

| Defendant-Appellant was found guilty as a principal of attempted second-degree murder. Considering the record in its entirety, we find that the evidence was insufficient to support the conviction under these particular facts and circumstances, and vacate Appellant’s conviction and sentence.

STATEMENT OF THE CASE

Defendant-Appellant Ulysses M. Cooks was charged by bill of information on June 4, 2009, with being a principal to attempted second degree murder, a violation of La. R.S. 14:24, 14:27 and 14:80.1. Defendant was jointly indicted with Joshua Lyons, who was charged with attempted second degree murder of the same victim. Defendant pleaded not guilty at his June 15, 2009 arraignment. On August 20, 2009, the trial court granted defendant’s motion to subpoena the victim to testify at defendant’s preliminary examination. The State sought supervisory review in this court. On September 30, 2009, this court stayed all proceedings; on October 2, 2009, this court denied the writ and lifted the stay. On October 20, 2009, the Louisiana Supreme Court granted the writ and reversed the decisions by the trial court and this Court. On February 9, 2010, the trial court heard and denied 1 ^defendant’s motions to suppress the statement and identification. Defendant was tried by a twelve-person jury, along with his codefendant, Joshua Lyons, on April 27-28, 2010, and both were found guilty as charged. On September 24, 2010, the trial court found defendant not to be a habitual offender. On October 15, 2010, the trial court found defendant to be a fourth-felony habitual offender and sentenced him as such to the minimum sentence of fifty years at hard labor, without benefit of probation, parole, or suspension of sentence. On that date the trial court granted defendant’s previously-filed motion for appeal.

FACTS

Defendant and his codefendant Joshua Lyons were jointly charged, tried, and convicted in the March 10, 2009 shooting of Donnie Floyd.

New Orleans Police Department Detective Wayne M. DeLarge III testified that he investigated an aggravated battery at approximately 1:28 a.m. on March 10, 2009, at 3719 Washington Avenue, Apartment 42. The victim, Donnie Floyd, was leaning on a parked car talking on a telephone, struggling to maintain his balance, and verbally expressing his anger. Det. De-Large said he did not consider the victim as a cooperative witness. The victim also expressed to the detective that he wanted to deal with the matter on his own, meaning he wanted to retaliate; however, Det. DeLarge testified that the victim later changed his mind when he could not feel his legs and toes as a result of the shooting. Det. DeLarge further testified that he reviewed a report written by Officer Helen Earls, one of the officers on the scene, and learned that the victim initially stated that he did not know the individual who shot him.

| ¡¡Floyd ultimately told Det. DeLarge that he loaned an African-American male he knew as “Michael,” a family friend, two hundred dollars, and that when he asked “Michael” for the money, a verbal altercation ensued, at which time he was shot in the back by another individual. Floyd told the detective that he knew the individual who shot him in the back as “Slim.” Det. DeLarge developed defendant as the “Michael” suspect. He showed Floyd a photo lineup while he was in the hospital, and he selected defendant’s photo. Det. DeLarge developed codefendant Lyons as the “Slim” suspect. The detective applied for arrest warrants for both men on March 13, 2009.

Also on March 13, 2009, an individual who identified himself as defendant telephoned Det. DeLarge. The caller initially told the detective that he was in Apartment 42 by himself, but subsequently stated that he had been in the apartment with Donnie Floyd. Defendant did not mention the shooting, but indicated that he ran from the scene due to fear of police. Asked during cross-examination whether he made any attempt to verify that person he had talked to was defendant, Det. De-Large replied that he had previously spoken to defendant’s sister, who told the detective that defendant would be calling.

Det. DeLarge testified that he spoke to codefendant Joshua Lyons on March 16, 2009, after Lyons had already turned himself in. Lyons initially told the detective that he was at the apartment and saw Floyd with a gun, and then saw defendant fleeing the scene with a gun; Lyons then told the detective that he was not at the apartment, but had been across the street. Lyons also told Det. DeLarge that he had run out the back window.

|4On cross-examination, Det. DeLarge testified that at the time Donnie Floyd was being taken to the hospital, Floyd told him that “Michael” (the defendant) was involved in the incident, but not that “Michael” had shot him. When Det. DeLarge spoke to Floyd the day after the shooting, on March 11, 2009, Floyd told him that defendant had set him up. Det. DeLarge replied in the negative when asked whether Floyd told him that defendant made any hand gestures or whether Floyd told him that he saw any signs from defendant to indicate to Joshua Lyons to shoot Floyd. Floyd reported to Det. DeLarge that defendant was standing in front of him when he was shot in the back by Lyons, but did not indicate whether anyone else had been inside the apartment at the time of the incident.

Det. DeLarge confirmed that Floyd told Officer Earls that he was involved in a verbal altercation with an unidentified male that escalated to a physical confrontation, and that he turned his back in an attempt to walk away from that male, at which time he was shot. The detective confirmed that as far as he knew, Floyd never mentioned to Officer Earls that there were two people, or that one of them set him up, or that he knew either one.

Donnie Floyd, the victim, testified that he was living at 3719 Washington Avenue, Apartment 24, on March 10, 2009. Another residence in the same complex, Apartment 42, was occupied by an individual named John Henry. At approximately 1:30 a.m. that morning, when Floyd was downstairs, coming into | Bthe yard, he observed “Michael” in John’s doorway, an individual who Floyd subsequently identified as defendant, Ulysses Cooks.

Floyd testified that defendant owed him one thousand dollars for drugs he had previously purchased from him. When Floyd saw defendant, he called to him, but defendant went into John’s apartment instead. Floyd followed defendant to John’s apartment, which was an upstairs unit. After Floyd asked to speak to defendant, John invited him inside the apartment. Floyd testified that in the course of the conversation with defendant in the living room, defendant advised Floyd that he was not going to pay him at all. Upon learning this information, Floyd became angry and his voice rose, at which time John asked Floyd and defendant to take the argument outside.

At some point during the argument, Floyd and defendant were pushing each other, and Floyd pushed defendant onto the sofa. Floyd testified that he began backing towards the door, and then stood in the doorway, facing inside the apartment, continuing to argue with defendant. Floyd stated that as he was continuing to argue with defendant, he looked back to see who was behind him “because ain’t nobody was out there kin to me or anything. Everybody was [defendant’s] friend, and, you know, so on.” Floyd confirmed that he saw the person he knew as “Slim,” codefendant Joshua Lyons, at the apartment, and that Lyons had been in the back bedroom of the apartment with his girlfriend. Floyd testified that when he looked back, he observed Lyons exit the apartment behind him.

| (¡Floyd testified that he and defendant continued “arguing in the door.” Floyd further testified that as the ongoing argument escalated, “all I can remember is [defendant] was signaling to the person that he was scared because I did have a gun on me at the time.” When questioned about this statement, Floyd confirmed that he had pulled out a Glock .40 caliber semiautomatic handgun, but insisted that he was not pointing it at anyone and that the gun was not loaded. Floyd conceded that he did not advise anyone that the gun was not loaded, and that no one would have known that the gun was not loaded. Floyd further testified that he did not observe any of the surrounding individuals to be armed.

At this point, Floyd testified that when he looked back, he noticed that Lyons was standing downstairs, on the first floor, while he and defendant remained at the top of the stairs arguing. Floyd recalled that the stairs went straight down from the second floor and estimated there were about twenty-four stairs in the stairway. Floyd testified that defendant then signaled Lyons to shoot Floyd, which caused him look back downstairs, at which time he saw Lyons and a spark. Floyd confirmed that he was looking at defendant when he was shot.

When asked how defendant signaled Lyons, Floyd testified that defendant used his eyes to signal “like, like, handle your business like. Like telling, you know, like if I’m telling somebody like, you know, ‘Handle your business. Handle your business.’ ” Upon being questioned as to what defendant did specifically to signal Lyons, Floyd denied that defendant said “Handle your business,” testifying that defendant “signaled like with his eyes and his hands, you know, like to shoot me.” Floyd confirmed that defendant did not say “shoot me [Floyd],” “because if [ 7he would have said shoot me I would have known somebody was about to shoot me.”

Floyd testified that after he was shot, he fell to his knees, at which time defendant grabbed Floyd’s gun and ran. Floyd admitted that he lied when he told police he did not know who shot him because initially, he was angry and wanted to “reveng[e] who shot me on my own.” Floyd further testified that he changed his mind about seeking revenge while he was hospitalized and decided that it would not be worth it to kill anyone over selling drugs.

When asked on cross-examination whether he had informed Det. DeLarge that he brought a weapon to the apartment, Floyd replied “[n]ot that I know of.” Upon being questioned further, Floyd testified that Det. DeLarge never asked him if he had a weapon. When Floyd was asked whether he had the handgun on his person the entire day, he replied that it was in his car and he retrieved it prior to going to John’s apartment to confront defendant about the debt. Floyd again admitted that defendant did not have a gun.

Floyd denied that he was arguing with Lyons the day he was shot and stated that Lyons did not owe him any money. However, Floyd testified that earlier that same week, Lyons had walked up to his mother and father with a gun and advised them that if Floyd did not stop selling drugs, he was going to shoot and kill Floyd. After learning of the confrontation, Floyd drove his mother and father around, and his mother pointed out Lyons to him. Floyd admitted that he should have notified | spolice about the Lyons threat then, but did not. Floyd speculated that on the day he was shot, Lyons saw an opportunity to take him out.

Det. DeLarge, recalled as a witness by defendant, confirmed that the first time he spoke with Donnie Floyd was on the night of the shooting when Floyd was in an ambulance at the scene, and that Floyd told him that the incident was over a two-hundred dollar debt. The detective further testified that he also spoke to Floyd the day after the shooting, while Floyd was in the hospital, and at that time, Floyd reiterated that the incident was over a debt of two hundred dollars. Det. De-Large testified that Floyd did not mention that the debt was one thousand dollars, or that the debt was for the purchase of drugs. Additionally, Det. DeLarge confirmed that in his conversation with Floyd, Floyd never indicated that defendant made any kind of hand motions or any type of motions at all to signal Lyons to shoot Floyd.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 2

Defendant’s second assignment of error is that the evidence was insufficient to support the conviction in several respects: (1) as to defendant being a principal to the crime of attempted second degree murder; (2) as to defendant having a specific intent to kill the victim; and (3) as to the shooting not being justifiable as in self-defense.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55. This court set forth the well-settled applicable standard of review for sufficiency of the evidence in State v. Huckabay, 2000-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, as follows:

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. 4 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 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. Mus-sall; Green; supra. “[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 (La.1992) at 1324.

Huckabay, 2000-1082, p. 32, 809 So.2d at 1111 (quoting State v. Ragas, 98-0011, pp. 13-14 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 106-107). With regard to circumstantial evidence, this court has recognized that all evidence must meet the reasonable doubt standard:

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Id.

| min this case, defendant was convicted of being a principal to attempted second degree murder. Second degree murder is defined, in pertinent part, as “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1(A)(1). A person is guilty of an intent to commit an offense if, having a specific intent to commit crime, he does an act for the purpose of and tending directly toward the accomplishing of his object, and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). The parties to crimes are classified as either principals or as accessories after the fact. La. R.S. 14:23. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La. R.S. 14:24.

To obtain a conviction for attempted second degree murder the State must prove the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. State v. Bishop, 2001-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437; State ex rel. G.B., 2007-1577, p. 4 (La.App. 4 Cir. 5/14/08), 985 So.2d 828, 830. Attempted second degree murder requires proof of specific intent to kill. Bishop, supra; State v. Johnson, 2008-1488, p. 10 (La.App. 4 Cir. 2/10/10), 33 So.3d 328, 334, writ denied, 2010-0624 (La.10/8/10), 46 So.3d 1267. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Bishop, supra; State v. Summers, 2010-0341, p. 7 (La.App. 4 Cir. 12/1/10), 52 So.3d 951, 956. Specific intent can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La. 11/25/96), 684 So.2d 382, 390; State v. Sartain, 2008-0266, p. 27 (La.App. 4 Cir. 12/30/08), 2 So.3d 1132, 1148.

Self Defense/Justification

Defendant argues that codefendant Lyons shot Donnie Floyd in defense of defendant. La. R.S. 14:19(A) states:

A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
La. R.S. 14:22 states:
It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.

In a non-homicide situation, the defense of justification requires a dual inquiry: (1) an objective inquiry into whether the force used was reasonable under the circumstances; and (2) a subjective inquiry into whether the force was apparently necessary. State v. Fluker, 618 So.2d 459, 462 (La.App. 4 Cir.1993).

It is unsettled, at least in this circuit, whether the burden of proof as to a claim of self-defense in a non-homicide situation is: (1) upon the defendant to establish by a preponderance of the evidence that he acted in self-defense; or (2) upon the State to establish beyond a reasonable doubt that the defendant did not act in self-defense. However, it is well-settled that the latter standard is applicable in a homicide situation. See Fluker, 618 So.2d at 463. In Fluker, this Court held that the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense:

|12We see no distinction between these provisions [La. R.S. 14:18, 14:19, and 14:20], and fail to see why the State would have the burden of disproving in one situation (homicide), and why the defendant would bear the burden of proving in another (nonhomicide). Absent a clear direction from our legislature, we feel that the defendant should not have the burden of proving anything.

Fluker, 618 So.2d at 463; see also State v. Wischer, 2004-0325, pp. 8-9 (La.App. 4 Cir. 9/22/04), 885 So.2d 602, 606-607 (holding that in a nonhomicide situation the defendant has the burden of showing justification, as an affirmative defense, by a preponderance of the evidence).

In several instances, this court acknowledged Fluker and Wischer, but ultimately found it unnecessary in each case to resolve the conflicting decisions because, under the particular facts of each case the evidence was sufficient to negate the defendant’s claim of self-defense applying either standard. See State v. Black, 2009-1664 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, writ denied, 2010-1678 (La.1/28/11), 56 So.3d 966; State v. Boudreaux, 2008-1504 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, 1162, writ denied, 2010-2434 (La.4/8/11), 61 So.2d 682; State v. Stukes, 2008-1217 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233; and State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577. The inquiry as to defendant’s self-defense claim is whether the shooting of Donnie Floyd one time was objectively reasonable and, subjectively, whether it was apparently necessary to prevent a forcible offense against defendant. See La. R.S. 14:19(A); Fluker, 618 So.2d at 462.

In this case, Donnie Floyd was the sole aggressor; he was also an admitted drug dealer who armed himself in preparation to collect a drug debt from defendant. Floyd argued with defendant, repeatedly demanding the money he claimed defendant owed him, raising his voice to such a degree that the tenant [1sasked them to take the altercation outside. Floyd also conceded that he pushed defendant onto a sofa, thus committing a simple battery upon defendant. Floyd backed up into the doorway leading outside and pulled out the handgun, inferring that he did so because he was afraid for his safety because others in the apartment were taking defendant’s side in the argument over the drug debt. However, Floyd articulated no threat from others, only mentioning that those inside the apartment were defendant’s family members and friends and that they were taking defendant’s side of the argument.

When Floyd backed toward the door, still arguing with defendant, who was facing him, Floyd admittedly drew a semiautomatic handgun. Floyd insisted that the gun was not loaded, but conceded that no one else would have been able to tell that the gun was unloaded; thus, to anyone present, Donnie Floyd had drawn and was holding a loaded gun. Furthermore, Floyd testified that the individuals in the apartment knew that he carried a gun. . Notably, Floyd confirmed that to his knowledge, no one else was armed, and specifically, that defendant was not armed. Floyd also replied in the negative when asked whether he ever saw a gun on code-fendant Lyons.

Although Floyd testified that earlier the same week Lyons had walked up to his mother and father with a gun and told them that if Floyd did not stop selling drugs he was going to shoot and kill him, and speculated that on the day he was shot Lyons saw an opportunity to take him out, there was no independent evidence substantiating this threat claim, nor any evidence suggesting that defendant was aware of such a threat having been made by Lyons. Furthermore, as previously 114noted herein, Floyd admitted that he was the only one who knew his gun was unloaded and that others knew he carried a gun.

Considering the foregoing, we find that Floyd, having drawn a semiautomatic weapon, was perpetrating a forcible offense against defendant’s person, an aggravated assault, and thereby intentionally placed defendant in reasonable apprehension of receiving a battery committed with a dangerous weapon.

“An assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. “An aggravated assault is an assault committed with a dangerous weapon.” La. R.S. 14:37(A). An unloaded firearm can be considered a “dangerous weapon.” See State v. McClinton, 329 So.2d 676, 676, n. 1 (La.l976)(“[A] person may be convicted of robbery with a dangerous weapon even though the gun used is unloaded and/or unworkable. State v. Elam, 312 So.2d 318 (La.1975); State v. Levi, 259 La. 591, 250 So.2d 751 (1971)”). An aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. Aggravated assault and aggravated battery are defined as crimes of violence. See La. R.S. 14:2(B)(7); (5).

In this case, Floyd was in the doorway or slightly outside it, essentially blocking defendant’s exit from the apartment, holding a .40 caliber Glock semiautomatic pistol in his hand. Floyd, the aggressor, had drawn the gun while engaged in a heated argument with defendant and after committing a simple battery upon defendant. Floyd had escalated the confrontation from an argument or verbal altercation, to a simple battery, to an aggravated assault. Furthermore, it was Floyd’s admitted opinion that defendant signaled Lyons because defendant was afraid for his safety after Floyd drew the gun and held it in his hand.

1 ^^Accordingly, defendant argues that Lyons could have reasonably believed that shooting Floyd was necessary to prevent Floyd from perpetrating a forcible offense upon defendant, thus justifying the shooting under La. R.S. 14:22; likewise, the action by defendant, if any, was justified pursuant to La. R.S. 14:19(A). Because we find that the evidence was insufficient to establish that defendant had the specific intent to kill Donnie Floyd, it is unnecessary to determine whether the action by defendant, if any, was justified.

Principal-Specific Intent to Kill

Defendant further argues that the evidence was insufficient to establish that he was a principal, given that there was insufficient proof that defendant planned, signaled, directed, or otherwise intended for anyone outside to shoot Donnie Floyd. Defendant also argues that the evidence was insufficient to establish that he had the requisite specific intent to kill Floyd.

To prevail on its charge that defendant was guilty as principal to the attempted second degree murder of Donnie Floyd, the State had the burden of proving beyond a reasonable doubt that defendant harbored specific intent to kill Donnie Floyd, and not merely that defendant knew of Joshua Lyons’ specific intent to kill Floyd. State v. Bridgewater, 2000-1529, p. 10 (La.1/15/02), 823 So.2d 877, 890. “The shooter’s specific intent [to kill] cannot be transferred to the principal; ‘[a]n individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state.’ ” Bridgewater, 2000-1529, pp. 10-11, 823 So.2d at 890, quoting State v. Pierre, 93-0893, p. 4 (La.2/3/94), 631 So.2d 427, 428 (emphasis added). Therefore, to demonstrate that the non-shooter had the specific intent to kill, the State was required to establish that the circumstances indicated that the non-shooter, the defendant in this case, also Inactively desired the death of the victim. See State v. Holmes, 388 So.2d 722, 726-27 (La.1980).

Accordingly, proof beyond a reasonable doubt that the defendant had specific intent to kill is necessary to sustain a conviction for attempted second degree murder, the offense for which defendant in the instant case was convicted. Bishop, supra; Johnson, supra. Both the Louisiana Supreme Court and this Court have held that specific intent to kill can be inferred by pointing and firing a gun at a person. Bridgewater, on rehearing, 2000-1529, p. 3, 823 So.2d at 910; State v. Seals, 95-0305, p. 6 (La.11/25/96), 684 So.2d 368, 373; State v. Scott, 2009-0138, p. 8 (La.App. 4 Cir. 11/18/09), 26 So.3d 283, 289, writ denied, 2009-2773 (La.6/18/10), 38 So.3d 320; State v. Collor, 99-0175, p. 10 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, 102. The foregoing cases involved convictions for first or second degree murder, where proof of a specific intent “to kill or to inflict great bodily harm” was sufficient to support the respective convictions, not in cases involving attempted first or second degree murder, as in the instant case, where proof of specific intent to kill is required. Moreover, any authority cited in the above-referenced cases for the proposition that specific intent to kill may be inferred from pointing a gun and firing it also was based upon decisions where specific intent “to kill or to inflict great bodily harm” was at issue.

Contrast the broad statement in the cases cited above, that specific intent to kill may be inferred from a defendant’s pointing and firing a gun at a person, with the narrower statement in a more recent decision by the Louisiana Supreme Court, State v. Lewis, 2009-1404 (La.10/22/10), 48 So.3d 1073, that it is “settled jurisprudence that specific intent to kill may be inferred from the act of pointing a gun and firing at a person in close proximity.” Lewis, 2009-1404, p. 5, 48 So.3d at 1076 (emphasis added) (citing State v. Tassin, 536 So.2d 402, 411 (La.1988) (“pointing and firing a gun at point-blank range supports an inference of specific intent to kill”); State v. Noble, 425 So.2d 734, 736 (La.1983) (“same”)); see also State v. Hoffman, 98-3118, p. 48 (La.4/11/00), 768 So.2d 542, 585.

In Hoffman, the defendant appealed a conviction for first degree murder. While the court set forth the broader rule that specific intent to kill can be inferred from pointing and firing a gun at a person, it also acknowledged that “most cases which have found evidence sufficient to support an inference of specific intent have relied on the proximity of the gunman to the victim: close-range or pointblank.” Id. (emphasis added) (citing State v. Lindsey, 543 So.2d 886, 902-03 (La.1989)); State v. Maxey, 527 So.2d 551, 555 (La.App. 3d Cir.1988), writ denied, 541 So.2d 868 (La.1989) (“specific intent inferred when defendant put gun to head of victim and fired”); State v. Latchie, 535 So.2d 541, 542 (La.App. 3d Cir.1988) (“specific intent inferred when defendant shot victim once through windshield, striking the victim in head, and then moved to side of car and shot four more times into the car”).

Accordingly, the foregoing jurisprudence suggests that, while pointing and firing at gun at a person is a circumstance from which an inference can be drawn that a defendant possessed specific intent to kill, the circumstances surrounding that act, such as the distance from the firearm to the victim and the number of shots fired, must also be considered. See State v. Taylor, 533 So.2d 94, 98 (La.App. 4 Cir.1988) (evidence sufficient to sustain conviction for attempted second degree murder where defendant shot the victim once at close range, then chased him, firing two more shots which missed, and firing a fourth shot which hit the victim in the back); State v. Simmons, 454 So.2d 408, 409 (La.App. 4 Cir.1984) (evidence 118sufficient to sustain conviction for attempted second degree murder where defendant shot victim three times with a .38 caliber revolver).

In the instant case, viewing all the evidence in a light most favorable to the prosecution, it cannot be said that the jury’s apparent factual conclusion that defendant made some type of gesture to, or “signaled” to, Lyons or some other person behind Donnie Floyd, was clearly contrary to the evidence.

Floyd testified that defendant signaled to Lyons or the person behind him because defendant was scared because Floyd was holding a handgun. Floyd said defendant used his eyes to signal “like, like, handle your business like. Like telling, you know, like if I’m telling somebody like, you know, “Handle your business. Handle your business.” When asked what defendant did specifically, Floyd said defendant “signaled like with his eyes and his hands, you know, like to shoot me.” Floyd confirmed, however, that defendant did not say “shoot me,” “because if he would have said shoot me I would have known somebody was about to shoot me.” Floyd never clarified what the nature or the character of the alleged “signals” by defendant were such that any rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have inferred that any type of “signal” or gesture made by defendant with his hands or his eyes was a signal to Joshua Lyons, who was at the bottom of a flight of stairs, to shoot Floyd, much less to kill Floyd.

Likewise, defendant questions how he could have signaled the shooter if the shooter was downstairs, defendant was inside the apartment, and Donnie Floyd was in between them, blocking the shooter’s view of defendant. Floyd estimated that Lyons was twenty-four stairs down at the time of the shooting, while he and defendant were on the second floor, and he was somewhere between the door and l^the porch. While it is unclear precisely how far away defendant was, Floyd testified that he was facing defendant at the time of the shooting. Other than Floyd’s testimony that defendant signaled Lyons, the record is lacking evidence that defendant could have actually done so. The State introduced no photos of the crime scene or any other evidence from which the jury could have ascertained the shooter’s view of defendant immediately before the shooting.

The fact that Lyons (or another person behind Floyd) shot Floyd is insufficient to color the vague description of an alleged “signal” by defendant as a signal to shoot Floyd, much less as a signal to shoot and kill Floyd. A court reviewing the evidence for sufficiency “must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt.” State v. Mitchell, 99-3342, p. 8 (La.10/17/00), 772 So.2d 78, 83, citing State v. Mussall, 523 So.2d 1305, 1311 (La.1988). In this case, viewing the evidence in a light most favorable to the prosecution, any conclusion that defendant signaled to someone to kill Floyd would be purely speculative.

With regard to specific intent to kill being inferred from the circumstances of the shooting, it can be noted that the shooter shot Floyd only once, although it is not known what type of firearm the shooter had or if it was capable of firing more than one shot by successive pulls of the trigger. Donnie Floyd’s own testimony is that Joshua Lyons was at a distance from Floyd of twenty-four stairs, from the first to the second floor, at the time he shot Floyd. It can be noted that, although Floyd admitted that no one present at that time would have known his gun was not loaded, when defendant grabbed the gun after Floyd was shot and fell to his knees, | ^defendant made no attempt to shoot Floyd with the gun. Rather, defendant fled the scene, which, under the circumstances, was consistent with defendant seeking to protect himself from further harm.

Viewing all the evidence in a light most favorable to the prosecution, no rational trier of fact could have inferred that this vague signal or gesture by defendant to Lyons or another person was a signal for that person to shoot Floyd, such that it could be inferred that defendant had the specific intent to kill Donnie Floyd. It necessarily follows that no rational trier of fact could have found defendant a principal to the attempted second degree murder of Donnie Floyd, or that defendant, having the specific intent to kill Floyd, aided and abetted, or counseled or procured the shooter to shoot Donnie Floyd.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant claims that the trial court erred in denying defendant’s motion for a mistrial after the State elicited other crimes evidence from Donnie Floyd. Defendant also argues prosecutorial misconduct, alleging that the State presented Floyd as a credible witness, despite knowing of several changes in Floyd’s story before and during the trial. We pretermit discussion of this assignment of error in light of our determination to reverse defendant’s conviction.

ASSIGNMENT OF ERROR NO. 3

Defendant also argues that his sentence is unconstitutionally excessive. This assignment of error is moot.

121DECREE

For the foregoing reasons, defendant’s conviction is reversed and his sentence is hereby vacated.

CONVICTION REVERSED; SENTENCE VACATED

      . State v. Lyons, 2009-1306, unpub. (La.App. 4 Cir. 10/2/09).

      . State v. Lyons, 2009-2198 (La. 10/20/09), 18 So.3d 1293.

      .At trial, the State indicated to the trial court that Officer Earls had left the force.

      . Defendant was not arrested until a May 14, 2009 traffic stop.

      . Det. DeLarge never located the firearm that was used to shoot the victim. No spent casings were on the scene, and police were unable recover the bullet or determine what kind of firearm was used. An empty handgun magazine, in 9mm or .380 caliber, was found right outside of the front door of the apartment, on the other side of the doorsill.

      . Det. DeLarge testified on cross-examination that someone identifying himself as Joshua Lyons telephoned the detective from jail and told the detective that he, Lyons, had been in the apartment sleeping, and at some point prior to the shooting left and went across the street to see his girlfriend.

      . Floyd admitted on cross-examination that the first time he met with someone from the District Attorney’s Office he stated that he did not know who shot him.

      . At trial, Donnie Floyd identified the two respective photographic lineups in which he selected defendant’s and codefendant Joshua Lyons' photographs.

      . On cross-examination, Floyd denied telling Det. DeLarge that defendant owed him two hundred dollars.

      . At this point, counsel for defendant immediately objected and moved for a mistrial, which the court denied. Floyd admitted to prior convictions for simple burglary, first offense possession of marijuana, and attempted possession of a firearm by a convicted felon. Floyd also admitted that in March 2009 he was selling drugs.

      . Floyd confirmed that he was advised by the prosecutor questioning him that by testifying he would be admitting to crimes that could send him to jail.

      . When asked whether Floyd had told the detective that he had a gun on the day of the incident, Det. DeLarge replied that he did not remember asking Floyd. When asked whether Floyd ever told him that he had a gun on the day of the incident, the detective replied in the negative.

      . A simple battery is a battery — the intentional use of force or violence upon the person of another — committed without the consent of the victim. La. R.S. 14:33; 14:35.

      . It is well-settled that specific intent can be formed in an instant. However, there was no evidence defendant had ever threatened Floyd, either that day or at any previous point in time. Similarly, Joshua Lyons’ purported threat on Floyd’s life to Floyd’s parents cannot be imputed to defendant.