author: STEWART, J. CARAWAY, J., DREW, J.,

text:
    STATE of Louisiana, Appellee v. Larry John THOMPSON, Appellant.
    No. 46,039-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 23, 2011.
    Rehearing Denied April 7, 2011.
    Dissenting Opinion on Denial of Rehearing April 11, 2011.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    Larry John Thompson, Pro se.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Jason T. Brown, Jonathan D. Thompson, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

|2The defendant, Larry John Thompson, entered a Crosby plea to one count of possession with intent to distribute a Schedule II controlled dangerous substance, namely cocaine, in violation of La. R.S. 40:967(A). He reserved his right to appeal the trial court’s denial of his motion to suppress evidence. He was subsequently adjudicated a fourth-felony offender and sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The court fined Thompson $3,000.00 plus court costs, in default of which defendant was sentenced to an additional 60 days in parish jail. The defendant now appeals, urging two assignments of error. Finding merit in one of the assignments raised, we reverse the denial of the defendant’s motion to suppress, vacate his conviction and sentence, and remand the matter to the district court for further proceedings.

FACTS

The defendant was charged by bill of information with one count of possession with intent to distribute a Schedule II controlled dangerous substance. The charge arose out of the defendant’s arrest on May 29, 2008, at the Levingston Motel in Shreveport, Louisiana. Law enforcement encountered the defendant while executing a search warrant on rooms 31 and 37 of the motel. In the process of being interviewed by police, the defendant admitted to having narcotics in his truck and executed a consent form allowing law enforcement to search for them.

On October 8, 2008, the defendant filed a motion seeking to suppress the cocaine as having been obtained in violation of his constitutional right against unreasonable searches. The motion asserted that the defendant’s initial detention and pat-down was unlawful because he was not occupying either of the rooms which were the subject of the search warrant. Furthermore, the consent to search was obtained as a result of law enforcement’s continued detention of the defendant after the initial pat-down yielded no threat to officer safety.

|sThe motion to suppress was initially heard on April 1, 2009. The state relied solely on the testimony of Agent Shawn Parker. Agent Parker testified that on the date in question, members of the Shreveport Police Department’s Special Response Team (“SRT”) converged on the Levingston Motel in the Allendale neighborhood, a location regarded by law enforcement as one of “high crime” for narcotics and prostitution. The SRT was there to execute search warrants on Rooms 31 and 37. Agent Parker’s role was part of a secondary team which provides for the entry team’s safety by dealing with individuals outside the rooms being entered by SRT members. Agent Parker testified that as he arrived, the door to Room 81 was open and two black males were standing outside. The defendant was in the doorway but had started to walk away from the room. As defendant was walking away, officers ordered everybody to get on the ground, where all three individuals were handcuffed for officer safety. All three detained individuals were then helped to their feet and read their Miranda rights.

The defendant was asked to produce his driver’s license and was patted down for weapons. The pat-down yielded no weapons. Agent Parker asked the defendant his reason for being in Room 31 and how he had arrived. The defendant said he was visiting a friend and pointed to his truck parked in front of the “apartments.” Agent Parker testified that the truck was located right next to a vehicle parked in front of Room 31. When the defendant was asked if he had anything illegal in the vehicle, the defendant admitted that he had a gun. Parker testified that the defendant’s handcuffs were removed at this point.

Agent Parker pulled the defendant aside to ask him more questions about the potential presence of a gun in his truck given the volatile situation. The defendant then allegedly admitted to the officer that he was a convicted felon and was not supposed to have a gun. When Agent Parker asked if he could retrieve the gun, the defendant stated he didn’t want to get in trouble and started to deny that there was a gun. Upon further questioning, however, the defendant also admitted that he had crack cocaine in the truck. Parker informed the defendant that because of his admissions, Parker could not “just walk away.” Parker again asked to search the vehicle and the defendant consented after Parker assured him that he did not intend to | ¿impound the vehicle. The defendant signed a consent to search form before the search took place and then opened the truck for Parker. The defendant then entered his truck and from the center armrest of the bench seat retrieved a clear plastic bag containing five individually packaged rocks of crack cocaine. The defendant was arrested and charged with possession with intent to distribute.

On cross-examination, Agent Parker explained that the defendant continued to be detained after the initial pat-down because it was not clear what connection, if any, the defendant had to the rooms on which the search warrants were being executed. Parker also testified that the defendant was not handcuffed at the time he retracted his admission about having a gun. However, Agent Parker asserted that the defendant was being detained and would not have been free to leave. In fact, Agent Parker testified that he did not return the defendant’s driver’s license until the defendant was signing the consent to search form. At the time the written consent form was signed, Agent Parker stated that the defendant’s handcuffs had been removed for approximately five to ten minutes.

The defendant called Agent Steve McKenna to testify about his participation as a member of the SRT on the date in question. McKenna testified that he was responsible for entering Room 31 and that as he did so, he observed the defendant coming “from the front door of the room” and traveling south. Agent McKenna ordered the defendant to “get on the ground,” which the defendant did. Agent McKenna then entered Room 31 and other members of the SRT were left to deal with the defendant.

The defendant also called Robert Coll-eprn, a resident of the Levingston Motel, who testified that he was with the defendant and the defendant’s girlfriend in Room 29 just prior to the arrival of law enforcement. Colleprn had just completed, some television repairs in the room and was walking out behind the defendant. The defendant took a left as he exited the room and headed in the direction which would take him past Room 31. The police arrived shortly thereafter and due to a partition between Room 29 and the rooms to the left, Colleprn witnessed nothing further regarding the initial interaction between officers and the defendant. R Coll-eprn did see the defendant in handcuffs and later saw him without handcuffs.

The defendant testified that he had exited Room 29 just prior to his detention by officers. He stated that his girlfriend lived in Room 29, and he was heading toward the trash to search for DVDs which patrons of the motel discard from time to time. He had just passed Room 31 when officers came in contact with him. He stated that surveillance video would confirm his testimony regarding these facts. The defendant alleged that when he was reluctant to consent to a search of his vehicle, Agent Parker threatened to summon a K-9 unit and that if it detected anything, the vehicle would be impounded and the defendant’s apartment would be searched. He also claimed that his handcuffs were removed only so that he could sign the consent form.

At the conclusion of the initial hearing, the trial judge asked about the “video surveillance” mentioned by the defendant during his testimony and whether there was an actual recording of it. Because the surveillance video was not part of the search operation, the parties were not certain as to the existence or content of such a recording, but at the trial court’s request, they committed to investigate the issue further. Two weeks later, the hearing resumed at which time the surveillance video was produced. While its origin is not entirely clear, the defendant alleges that the video was obtained in response to an internal affairs complaint which he had made with the Shreveport Police Department. The original source and/or custodian of the recording is not clear from the record.

The recording was played in open court as the defendant testified to what it showed. Also introduced were three photographs allegedly taken by the defendant. The first photograph depicts the defendant’s Ford F-150 truck parked in front of Room 27 of the motel, which he testified is where it was parked on the date of his arrest. The second photograph depicts Rooms 30 and 31, with a white Cadillac parked in front of Room 30, which the defendant indicated was also parked in the same location on the day of his arrest. The last photo depicts the doors to Rooms 32 and 33 and the area in between them, which is where defendant claims he was located when the SRT first ordered him to the ground.

IfiThe surveillance video and the photographs taken by the defendant, when compared to each other, indicate that the defendant’s Ford F-150 truck is parked in front of Room 27 at the time of the SRT’s operation. Prior to the SRT operation, the video depicts an individual, wearing clothing matching the description defendant provided of his attire on the date of his arrest, leaving Room 29 on several occasions and going to the defendant’s truck before returning to Room 29. As the first vehicle of the SRT pulls into the parking lot, the individual is seen emerging again from Room 29. When the individual reaches the end of the brick wall which separates the door of Room 29 from the door to Room 30, he makes a 90-degree turn to his left and starts walking parallel to the facade of the motel in the direction of Rooms 30 and 31. At this point in the video, the defendant disappears from view as a result of vegetation which obstructed the camera’s view of Rooms 30, 31, 32, and 33, where the defendant was initially detained by law enforcement. Officers are seen moving in the direction of where the viewer can only speculate the door to Room 31 is located and where the defendant might have been standing had he kept walking at the same pace when he disappeared from the camera’s view. A short time later, an officer is seen escorting the defendant back into the camera’s view and sitting him in front of Room 29. At this point the defendant appears to be handcuffed. The video ends before the defendant’s handcuffs are removed and before any search is conducted of what is presumed to be the defendant’s truck.

The court rendered its ruling denying the motion to suppress on April 22, 2009. The trial judge found that the defendant was coming out of Room 29 and would have been somewhere in the vicinity of Room 31 when apprehended. The court indicated that it would not reach the question of whether the initial detention was legal or not, because the defendant’s subsequent consent was freely and voluntarily given and, therefore, the narcotics were obtained pursuant to a valid search. Subsequently, the defendant entered a Crosby plea of guilty to possession with intent to distribute a Schedule II Controlled Dangerous Substance (cocaine), reserving his right to seek appellate review of the denial of his motion to suppress. The state filed a habitual offender bill of information and on February 4, 2010, the defendant was adjudicated a fourth-felony habitual 17offender and sentenced to life imprisonment with credit for time served plus a $3,000.00 fine. The trial court denied the defendant’s subsequent motion for a downward departure from the mandatory life sentence. The defendant now appeals, challenging the denial of his motion to suppress evidence and the severity of his enhanced sentence as constitutionally excessive.

LAW AND DISCUSSION

Motion to Suppress

In the defendant’s first assignment of error, he asserts that the trial court erred in denying his motion to suppress evidence in violation of his constitutional right to be free from unreasonable search and seizure. More specifically, he argues that the surveillance video contradicts the officers’ testimony as to the room from which defendant was emerging. Therefore, he asserts that his initial detention was illegal and that the consent to search was obtained during the continuation of that illegal detention, thereby invalidating the consent.

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, Section 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.

Consent to search is 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 |sthe 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. Among the factors considered in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the police officers adequately informed the individual that he need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Owen, 453 So.2d 1202 (La.1984).

The Louisiana legislature codified the standard for investigatory stops and pat-downs for officer safety as set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in La. C. Cr. P. art. 215.1. In regard to an investigatory stop, Subsection A states that “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

In determining whether the police possessed the requisite “minimal level of objective justification” for an investigatory stop based on reasonable suspicion of criminal activity, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each ease,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” State v. Temple, 2002-1895 (La.9/9/03), 854 So.2d 856 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) internally quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Reasonable suspicion to justify an investigatory stop under Terry, supra., is less than probable cause.

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. 2 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. 2 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 and 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 pre-trial motion to suppress. State v. Young, 39,456 (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 present case, the legality of the detention is unclear. The surveillance video, viewed without regard to any of the witnesses’ testimony, does not in and of itself depict the investigatory stop of the defendant as suspect. It shows that the defendant was in the general vicinity of one of the rooms which was the subject of a warrant to search for narcotics. A law enforcement officer may stop a person in a public place |10whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. La. C. Cr. P. art. 215.1(A). The officers involved in executing the search warrant in this case testified that the motel was one where narcotics and prostitution were prevalent and where many arrests had previously been made. We must presume that citizens are law abiding, even those in public housing developments and other targeted high crime areas. State v. Temple, supra. Nevertheless, the officers here are permitted to question the defendant’s connection to the room and/or his potential to pose a danger to officer safety.

At first glance, the state appears to have proven the “reasonable and articulable suspicion” requirement that would have justified the defendant’s detention for an investigatory stop. Further, his subsequent consent to the search of his truck would appear to have been freely and voluntarily given.

While reviewing the record, we observe that the “reasonable and articulable suspicion,” which would have otherwise justified an investigatory stop, was based on facts related by Agent Parker, whose “suspicion” is the only one of relevance. Even though Agent Parker’s encounter with the defendant occurred during daylight hours where he had excellent visibility, he related facts that clearly contradicted the actual facts depicted in the surveillance video. For instance, Agent Parker testified the defendant was leaning in the doorway of Room 31, whereas the surveillance video clearly shows him coming out of Room 29, as testified by the defendant. The defendant was never in the doorway of room 31; he was actually headed toward an area away from room 31 when the officers arrived at the motel. In order to reach room 31, the defendant had to walk around the partition between rooms 29 and 31. It is unlikely that he could have reached Room 31 in time to appear to arriving officers as though he was in its doorway. The surveillance video supports this reasoning and is consistent with the defendant’s testimony. Second, the defendant’s truck is not parked in front of or even relatively near to Room 31 as testified to by Agent Parker. Rather, it is parked in front of Room 27. Lastly, Agent Parker’s testimony that defendant was ten feet away from his truck is also contradicted by the surveillance video, since the truck was actually quite a number of parking |nspaces down from where the defendant stood. There were also several cars and a metal barricade between the defendant and the truck. These were all factors cited by the state as justification not only for the initial stop, but also for the post-pat-down questioning of the defendant as to the possible contents of his truck.

Taking into consideration Agent Parker’s erroneous yet certain recollection of the facts which he presumably relied on in arriving at “a reasonable and articulable suspicion” for an investigatory stop of the defendant, the trial court erroneously disregarded the legality of the initial detention and concluded that the state met its burden of proving that the warrantless search was justified as an exception to the warrant requirement of the Fourth Amendment.

The defendant was stopped, handcuffed, patted down for weapons, and questioned. When Agent Parker initially questioned the defendant, he was able to determine the defendant’s name, address, and an explanation of his actions, and the fact that he was clearly not an occupant of the rooms that were the subject of the search warrant. Further, Agent Parker’s pat-down of the defendant yielded no weapons. Therefore, the defendant should have been released from his detention. For reasons unknown, Agent Parker kept the defendant in handcuffs and investigated further as shown by testimony:

Q: Did you ask him anything else?
A: I asked him how he got there. He pointed to a truck, a blue and white Ford pickup truck that was parked almost directly in front of the apartments. I asked him if he had anything illegal in the vehicle?

At this point in the investigation, the routine investigatory stop transitioned into an illegal detention. Based on the evidence, the trial court should have determined that the “reasonable and articulable suspicion,” which would have otherwise justified an investigatory stop, was based on Agent Parker’s testimony that clearly contradicted the surveillance tape. Pairing this determination with the fact that Agent Parker further investigated the defendant when he should have released him from the detention, the trial court should have ruled that the initial detention was illegal.

112Because of the defendant’s illegal detention, we cannot agree with the trial court’s erroneous conclusion that the subsequent consent was freely and voluntarily obtained. As noted above, consent obtained after an illegal detention is only valid if it was the product of free will and not the result of exploitation of the previous illegality. Agent Parker’s testimony that the defendant was not free to leave at the time he provided all the incriminating information and was not given his driver’s license until the consent to search forms were signed supports a finding that the consent was not sufficiently attenuated from the arguably illegal detention so as to be a product of a free will. The record is absent of any indication that Agent Parker expressed to the defendant that he had the option of not giving consent to search the vehicle.

Finding merit in this assignment of error, we reverse the denial of the defendant’s motion to suppress, vacate the guilty plea and sentence and remand for further proceedings. Based on our decision regarding this assignment of error, there is no need to address the defendant’s assignment of error regarding the exces-siveness of the sentence imposed.

CONCLUSION

For the foregoing reasons, we reverse the denial of the defendant’s motion to suppress, vacate his conviction and sentence and remand for further proceedings.

REVERSED, VACATED AND REMANDED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

hi concur with the majority’s ruling. However, I view this arrest and search as falling more appropriately within the analysis of Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) and its progeny. In a similar setting, this court sustained a motion to suppress in State v. Jackson, 459 So.2d 169 (La.App. 2d Cir.1984) citing Ybarra for the following principle:

A person may not be searched simply because he is present with others suspected of criminal activity or at a location where such activity is occurring.

From the surveillance video, as the first police vehicle is seen arriving in the parking lot near the entrance of Room 29, the defendant is clearly seen exiting Room 29 and therefore not associated with Room 31 to which the officers’ search warrant applied. Simultaneously, a private automobile had just driven into the apartment complex and parked almost directly in front of Room 29 only 25 seconds before the police vehicles are seen. One man in the vehicle had just exited and was standing beside the car, and the other was not fully out of the car as the officers are seen exiting their vehicle. Both men are immediately taken down and cuffed and then placed on the curb in front of Room 28 as the search of Room 31 began. A short time later, the defendant is also brought back to that location and left on the curb in handcuffs.

While defendant’s action in turning to his left toward Room 31 may be argued to have given rise to reasonable suspicion to justify a Terry stop, a turn to his right would have also apparently landed him in the same position on the curb in handcuffs. In any event, whether a Terry stop led to an improper arrest or a Ybarra violation occurred, I agree that the motion to suppress must be sustained.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

DREW, J., dissents from the denial of rehearing and assigns reasons.

DREW, J.,

dissenting from denial of rehearing.

11 Four judges of this court declined to grant rehearing of this court’s opinion that reversed the trial court, resulting in the suppression of evidence lawfully seized in conjunction with the execution of a narcotics search warrant at the Levingston Motel. Since the actions of the officers were objectively reasonable, in all respects, I respectfully dissent.

Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), was a unanimous decision by the United States Supreme Court, holding that the Fourth Amendment allows detention of all occupants in handcuffs while a search warrant is being executed, and that it does not require officers to have an independent reasonable suspicion before questioning a subject about his or her immigration status. The officers had a search warrant for Mena’s house for deadly weapons and evidence of gang membership. She had rented a room in her house to a gang member who was a suspect in a drive-by shooting. The SWAT team executed the warrant early one morning while Mena was asleep in her bed. The officers handcuffed her at gunpoint, along with three other occupants. Mena was then detained in handcuffs in her garage for two to three hours. Two officers guarded her and the other detainees. During this time frame she gave incriminating statements and provided documents relevant to her immigration status, all of which the Supreme Court allowed into evidence.

Thompson was apparently not an occupant of either of the motel rooms described in the search warrant. When initially detained, he was, by his own admission, “a good ten feet” away from the door of one of the units to be searched, having just walked by the front door. Even defense counsel agreed that this was a high-crime area, notorious for drugs and prostitution. The defendant was close enough to be a threat to the officers.

|?Three recent Louisiana Supreme Court cases have allowed cuffing (without probable cause to make an arrest) during a frisk situation, for officer safety. See State v. Adams, 2001-3231 (La.1/14/03), 836 So.2d 9; State v. Porche, 2006-0312 (La.11/29/06), 943 So.2d 335; and State v. Palmer, 2009-0044 (La.7/1/09), 14 So.3d 304.

In Adams, supra, a female was detained in a public area in a high-crime neighborhood in New Orleans. After making eye contact with some of the officers in the arriving police units, Adams fled without provocation, which led to her lawful detention. She was lightly frisked by a male officer, then handcuffed for 10-12 minutes to await a female officer, who more thoroughly frisked her. Cocaine was discovered and allowed into evidence.

The Thompson concurrence reasons that the frisk and extended detention of Ms. Mena (Muehler v. Mena, supra) was lawful because she was in a home that was the subject of a search warrant. Because Mr. Thompson was (as concluded in the Thompson concurrence) in a public area, his “extended detention” (20-25 minutes, which is 10-15 minutes longer than Ms. Adams, and at least 90 minutes shorter than Ms. Mena) was deemed unreasonable. All events in Adams occurred in public.

Palmer, supra, appears to also be especially germane to these instant facts. Natchitoches Police, responding to complaints of heavy pedestrian and vehicular traffic from concerned citizens in a drug trafficking area, went to the premises without a warrant, to conduct a “knock- and-talk.” As soon as the officers pulled up, numerous individuals began to run or “fast-walk” away. One of the people detained by the police was Palmer, who was immediately handcuffed. While he was shackled, he agreed for the officers to search his car. Drugs were found and allowed into evidence.

| <¡The officers under our facts had gone to the trouble to secure a search warrant, which should trigger the good-faith rule concerning their actions, as per United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Also, the U.S. Supreme Court has recently demonstrated a reluctance to apply the exclusionary rule in two recent cases. See Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), and Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).

The trial court found the officer(s) credible. The video in evidence shows nothing helpful to the defendant here.

Probably most important to our reasoning in this case should be the landmark case of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), which established 30 years ago that officers have the right to exercise unquestioned command of the situation when executing a search warrant, including detaining, cuffing, and questioning persons at the scene. There is no restriction that the detainee be inside the premises to be searched. During the execution of a search warrant, any persons on the scene are almost always required to stay there, and any visitors who may arrive at the scene can be detained until the search is completed. See Summers, supra.

Less than 30 minutes after he was first detained, Thompson had provided at least three, and possibly four, lawful grounds for officers to search his truck:

1. By probable cause to search his vehicle, due to his admission of being a felon in possession of a firearm that “might be” located in his truck;
2. By consenting, post -Miranda, orally and in writing, to the search of his truck;
143. By a search, incident to an arrest, because his statement about maybe being a felon in possession would have allowed his arrest, and, as a contemporaneous incident thereto, a search of his passenger compartment, pursuant to Arizona v. Gant, 556 U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), since there was clearly a reasonable belief that evidence of the crime of arrest was in the truck; and, potentially,
4. Had he been unshackled after the initial frisk, as endorsed by the majority, and had he sought entry into his truck, a frisk of the passenger compartment for officer safety would have been lawful, pursuant to Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), prior to allowing him back into his vehicle.

The majority here has placed at risk all officers in highly volatile and dangerous situations that occur in areas rampant with crime and violence.

The majority has declared as unreasonable that the officer kept Thompson in handcuffs for less than 30 minutes after completion of the initial frisk, while the other officers executed the search warrant. Within this brief period, Thompson had, out of his own mouth, provided probable cause to arrest him, as well as probable cause to search him and his truck. He also gave his voluntary consent for the search.

What the officers did here was objectively reasonable. With respect, I would grant the rehearing and reinstate the ruling of the trial court which denied the motion to suppress.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The state did not show that the defendant or his girlfriend was a subject or party of interest in relation to the search warrant.

      . State v. Thompson, 46,039 (La.App.2d Cir.2/23/11), 58 So.3d 994.

      . In State v. Boyer, 2007-0476 (La. 10/16/07), 967 So.2d 458, the Louisiana Supreme Court approved the forcible detention and frisk of a person using a cell phone 10 feet from the comer of a mobile home that was the subject of a search warrant. The subsequent search was held unlawful. Similarly, in State v. Cooper, 36,472 (La.App.2d Cir. 10/23/02), 830 So.2d 440, cited by the defendant in brief, we held the detention and the frisk to be lawful, but disallowed the fruits of a later search conducted without benefit of probable cause. These two cases help the state here, not the defendant.

      . Reasons for keeping all subjects at the scene, as given by the Summers court: officer safety; flight prevention (and if probable cause to arrest develops, the officers will be relieved of having to locate and recapture the defendants); and some subjects on the scene may actually provide assistance in finding the objects of the search.

      . In fact, he went into his truck, got the dope, and handed it to the officer.

      . The use of handcuffs during questioning does not necessarily mean that a detention has become an arrest. State v. Baudoin, 2010-KK-2868 (La.3/4/11), 55 So.3d 1044.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kenneth Wayne REED, Appellant.
    No. 46,147-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.
    Louisiana Appellate Project by James E. Beal, for Appellant.

      Charles Rex Scott, District Attorney, Jason Trevor Brown, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

L2The defendant, Kenneth Wayne Reed, originally pled guilty to possession of marijuana, third offense, pursuant to a plea bargain in exchange for a 12-year sentence. The defendant inexplicably did not appear for sentencing. Two years later Reed appeared before Judge Marcotte under the same case number, and pled guilty to being a second felony offender although no bill had been filed indicating his sentence would be enhanced because he was a second felony offender. In accordance with a new plea agreement, he was sentenced to 14 years in prison. The defendant now appeals. Because no bill of information was filed alleging the defendant was a second felony offender, we vacate the defendant’s sentence and remand for resentencing.

FACTS

On April 26, 2000, Kenneth Reed pled guilty to possession of marijuana in Caddo Parish. On April 30, 2002, Kenneth Reed pled guilty to possession of marijuana, second offense in Caddo Parish. On November 22, 2005, Reed’s probation officers appeared at his girlfriend’s home, noticed a heavy odor of marijuana, searched the home and found marijuana in the refrigerator. Reed was arrested for possession of marijuana, third offense. Reed pled not guilty to the charge.

On October 18, 2007, Reed pled guilty to possession of marijuana, third offense, in exchange for an agreement that he would receive a 12-year sentence. After accepting his guilty plea, the trial judge allowed the defendant one month to get his affairs in order before sentencing on November 19, 2007. He admonished the defendant to refrain from criminal activity during that time, and told him that if he came to court on that date, the judge would abide by the plea agreement and sentence him to 12 years. The minutes of the Clerk of Court of Caddo Parish indicate nothing occurred on November 19, 2007, but a minute entry dated November 26, 2007, states the defendant did not appear for sentencing and a bench warrant was issued for his arrest.

A few years later, the defendant’s case returned to the attention of the court, and his case was continued on the docket a total of five times. Finally, on May 4, 2010, a sentencing hearing was held before Judge Craig |sMarcotte. The transcript of the hearing indicates that the defendant was before the trial court after having pled guilty to “marijuana, third offense.” The defendant was represented by counsel. The assistant district attorney stated, “The agreement is pleading as a second felony offender for an agreed sentence of fourteen years hard labor. And then that would be, I believe, also no-I think no fine and court cost and multi-bill.” The trial judge questioned the defendant and asked him, “You understand you have the right to a hearing to determine whether or not you are in fact a second offender?” The defendant answered affirmatively. He admitted to being a second felony offender and also stated he understood he was going to receive a 14-year sentence. The judge specifically stated that the defendant would get the benefit of “529.1 for parol [sic] just not suspension or probation at this point.”

The defendant filed a pro se motion for reconsideration of sentence, and a motion for an appeal. Appellate counsel was appointed to represent him. He filed this appeal and sought review of the sentence of 14 years and claimed that the underlying guilty plea to possession of marijuana, third offense, was invalid because the plea bargain agreement he had reached previously had not been honored. He also claimed that because the underlying guilty plea was defective, his subsequent admission as to his second habitual felony offender status was void and of no effect. He also argued that the 14-year sentence was excessive for this offender.

DISCUSSION

We pretermit discussion of the assignments of error raised by the defendant in his appeal because an error patent has been noted in this record. A record in a criminal case, which may be reviewed for discoverable error even in the absence of overt exceptions and duly assigned errors, includes the caption, statement of time and place of court, indictment or information and endorsement thereon, arraignment, pleading, empaneling of the jury, verdict, judgment, and bill of particulars filed in connection with a short form indictment or information. See State v. Oliveaux, 312 So.2d 337 (La.1975).

In this case, a review of the record shows no multiple offender bill of information was filed as required for enhancement of a sentence under La. |4R.S. 15:529.1, yet the appellant pled guilty and was sentenced as a second felony offender. The bill of information filed by the district attorney in regard to the possession of marijuana, third offense charge, mentions, of course, the defendant’s previous convictions on April 26, 2000 and April 30, 2002, which substantiate that this is the third offense of marijuana possession with which the defendant has been charged, but there is no bill of information indicating that the defendant would be sentenced as a second felony offender under La. R.S. 15:529.1.

In State v. Uqdah, 613 So.2d 1113 (La.App. 5 Cir.1993), the court found the record did not contain a bill of information charging the defendant as a multiple offender. Citing State v. Walker, 416 So.2d 534, 536 (La.1982), the court stated that an habitual offender bill of information does not charge a new crime but is only a method of increasing the punishment of second and subsequent felony offense. In order to sentence the defendant as a multiple offender under the Habitual Offender Law, it is essential that the former convictions be formally charged. State v. Mingle, 242 La. 844, 139 So.2d 205 (1961); State v. Donahue, 572 So.2d 255 (La.App. 1 Cir.1990). The Uqdah court found that because there was no multiple offender bill of information, the prior conviction could not be used to enhance the sentence for the conviction before the court. It vacated the sentence and remanded for resentenc-ing.

In State v. Fullilove, 94-326 (La.App. 5 Cir. 11/16/94), 646 So.2d 1041, the court held that even though the defendant pled guilty to simple burglary, admitted three previous felony convictions, and was sentenced as agreed upon by the parties, the defendant’s sentence could not be enhanced under the habitual offender statute absent a written multiple offender bill of information formally charging the defendant. Despite the fact that the record revealed the defendant’s constitutional rights were fully explained to him, and the colloquy indicated the defendant understood the plea agreement and admitted the prior felonies, the court still found that a written multiple offender bill of information was required to be filed before enhancement of a sentence under La. R.S. 15:529.1. The court vacated the sentence and remanded the case for resentencing.

CONCLUSION

| .¡Because the state did not file a multiple offender bill of information, the defendant’s sentence is vacated, and we remand this case to the trial court for resentenc-ing.

SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.


author: STEWART, J. BROWN, Chief Judge,

text:
    Michael TILLMAN, Plaintiff-Appellant v. USAGENCIES CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    No. 46,173-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Anthony J. Bruscato, Monroe, for Appellant.
    Hudson, Potts & Bernstein, Monroe, by Mark J. Neal, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

| gThe plaintiff, Michael Tillman (“Tillman”), appeals a summary judgment dismissing his claim against the defendant, USAgencies Casualty Insurance Company (“USAgencies”) for uninsured / underin-sured motorist bodily injury (“UMBI”) coverage. We affirm.

FACTS

Tillman, age 21, was injured in an automobile accident on May 27, 2008, when his 1995 Dodge Ram pickup truck was struck from the rear by a vehicle driven by Tommy J. Pritchard. After Pritchard’s insurer paid its policy limits, Tillman sought additional recovery from USAgencies. Tillman’s mother, Paris Carter (“Carter”), had a policy from USAgencies providing coverage from February 7, 2008, to August 8, 2008. The Dodge Ram had been added to the policy on May 16, 2008, shortly before Tillman’s accident. However, Carter rejected UMBI coverage on February 6, 2008, when she completed an application for the policy.

Based on Carter’s rejection of UMBI coverage, USAgencies asserted that no UMBI coverage was available for Tillman and sought summary judgment dismissing his claim. Tillman countered that Carter’s rejection of UMBI coverage was not valid as to his vehicle. He asserted that the insurance agent should have issued a new policy covering the Dodge Ram instead of merely adding it to his mother’s policy. Tillman claimed that the agent was given the Dodge Ram title, which listed him as the owner, and that she knew he did not live with his mother. Citing Holloway v. Shelter Mut. Ins. Co., 2003-896 (La.App. 3d Cir.12/10/03), 861 So.2d 763, writ denied, 2004-0087 (La.3/19/04), 869 So.2d 854, he also argued that his mother could not reject UMBI coverage on his behalf absent his written consent.

The trial court granted summary judgment dismissing Tillman’s claim against USAgencies. The trial court found that Carter, who purchased the insurance and was the named insured under the policy, executed the waiver of UMBI coverage as required by La. R.S. 22:1295. When she added the Dodge Ram to her policy, a new policy was not created. Carter remained the named insured and was not required to execute another UMBI selection |¡¡form. The trial court found Holloway, supra, addressed infra, to be factually distinguishable.

Tillman now appeals. In four assignments of error, he asserts that (1) USA-gencies should not be permitted to reject his UMBI claim when its agent erroneously failed to issue a new policy covering the Dodge Ram, (2) Carter’s UMBI waiver made in connection with her policy should not apply to him and what should have been his own policy covering the Dodge Ram, (3) Carter could not waive UMBI coverage for him absent a written delegation of authority, and (4) issues of fact exist as to whether Carter’s UMBI waiver was valid.

DISCUSSION

Summary judgments are subject to a de novo review on appeal “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Gray v. American Nat. Property & Cas. Co., 2007-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844, citing Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 2006-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

The movant has the burden of proof. La. C.C.P. art. 966(C)(2). Here, USA-gencies has the burden of proving the lack of UMBI coverage. To meet this burden, it offered Carter’s insurance application dated February 6, 2008, the UMBI selection form showing her rejection of UMBI coverage on February 6, 2008, and the declaration page showing the addition of the Dodge Ram to her policy on May 16, 2008.

Carter’s application shows that she obtained the statutory minimum of liability coverage for two vehicles, namely, a Jeep Wagoneer and a Ford Focus, for the policy period from February 7, 2008, to August 8, 2008. Carter was the named insured on the policy. Tillman was listed as a member of Carter’s household and a covered person under the policy, except as to use of the Ford Focus for which he was designated an excluded driver. In | connection with her application, Carter executed a UMBI Coverage Form. Her initials are in the blank next to the statement “I do not want UMBI Coverage.” She also signed the document below the following statement:

The choice I made by my initials on this form will apply to all persons insured under my policy. My choice shall apply to the motor vehicles described in the policy and to any replacement vehicles, to all renewals of my policy, and to all reinstatement or substitute policies until I make a written request for a change in my Bodily Injury Liability Coverage or UMBI Coverage.

As shown by declarations pages offered in evidence, the Dodge Ram was added to Carter’s policy on May 16, 2008, and the Jeep Wagoneer was deleted from the policy on May 27, 2008.

A form signed by the insured to reject UMBI coverage “shall remain valid for the life of the policy” and completion of a new form is not required “when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.” La. R.S. 22:1295(1)(a)(ii). Moreover, “Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms.” Id. Based on these provisions, the addition of the Dodge Ram to Carter’s policy did not require the execution of a new UMBI coverage form. By its submissions in support of its motion for summary judgment, USAgencies established a rejection of UMBI coverage by the named insured, Paris Carter.

A party opposing a properly made and supported motion “must set forth facts showing that there is a genuine issue for trial” to avoid summary judgment being rendered against him. La. C.C.P. art. 967(B). We will first address Tillman’s argument that there are issues of fact as to whether Carter’s rejection of UMBI coverage was valid. Tillman asserts that Carter stated in her deposition, which he relied on in opposing summary judgment, that she did not understand UMBI coverage and that the insurance agent did not discuss it with her. Instead, the agent merely handed her the form to sign.

A properly completed and signed formed creates a rebuttable presumption that the insured knowingly rejected UMBI coverage. La. R.S. |522:1295(l)(a)(ii). The form at issue was properly completed and signed. In her deposition, Carter claimed that she “knew uninsured motorist” but that she did not know exactly what it was or what the options were. She stated that she could not specifically recall conversations about UMBI coverage and that the insurance agent would prepare the forms and tell her where to sign. Though Carter claimed ignorance of UMBI coverage and the available options, the fact remains that she initialed and signed the UMBI form, which set forth and explained the purpose of UMBI coverage and the available options in plain and unambiguous language. Nothing in Carter’s deposition shows that she could not read or was prevented from reading the UMBI selection form or that she was induced to reject UMBI coverage through some error, fraud or duress. Our law is clear that one who signs a document is presumed to have done so with knowledge of its contents, regardless of whether he or she actually read it. Harrell v. Currie, 43,001 (La.App.2d Cir.2/13/08), 975 So.2d 777, unit denied, 2008-0574 (La.5/2/08), 979 So.2d 1286; Thomas v. Goodson, 26,356, p. 5 (La.App.2d Cir.12/7/94), 647 So.2d 1192,1195.

We do not find on this record that an issue of fact exists as to whether Carter’s rejection of UMBI coverage was valid. See Thomas v. Goodson, supra, wherein this court granted the insurer summary judgment dismissing a claim for UMBI coverage where the insured signed the rejection, though claimed she did so without any prior discussion.

Having found Carter’s rejection of UMBI coverage to be valid, we now turn to Tillman’s argument that Carter’s waiver of UMBI coverage is not applicable to him because the insurance agent failed to issue a new policy covering the Dodge Ram and because a new UMBI selection form would have then been required. Tillman refers to his and Carter’s depositions as well as the Dodge Ram title provided to the insurance agent to show that a separate policy should have been issued to insure the Dodge Ram. Moreover, he asserts that the insurance agent, Michelle West (“West”), erroneously added the Dodge Ram to Carter’s policy when she knew that he was not a member of Carter’s household and that he, not Carter, owned the vehicle. Tillman is apparently seeking reformation of the policy to provide UMBI coverage for his Dodge Ram.

IfiAn insurance policy may be reformed, when due to mutual error or mistake, the policy fails to reflect the true intent of the parties. Earl Williams Construction Co., Inc. v. Thornton & Brooks, Inc., 501 So.2d 1037, 1039 (La.App. 2d Cir.1987), writ denied, 504 So.2d 881 (La.1987); Hebert v. Breaux, 285 So.2d 829, 830-831 (La.App. 1st Cir.1973). If the insurance agent knows the true intention of the policyholder as to the coverage desired, the insurance company is bound by the agent’s knowledge and the erroneously issued policy will be reformed to conform to the original intention. Hebert, supra.

In Hebert, supra, a father contacted the insurer to switch insurance to his son, who was married and to whom he had donated a car. Later, when the son traded in the car for another vehicle, the father again called the insurer to have it insured. However, the insurer never changed the policy to reflect the new insured vehicle or to designate the son as the named insured. When the insurer denied coverage on the basis that the son was not the named insured and did not reside with his father, the court reformed the policy to provide coverage. The court found that the father had fully advised the insurer of his desire to obtain coverage for his son and that the insurer would be bound by the knowledge of its agent as to the parties’ true intent for the policy.

The facts here are distinguishable from those in Hebert, supra. Regardless of what the insurance agent knew about Tillman’s living arrangements or ownership of the vehicle, the depositions of Tillman and Carter show that neither expressed to West the intent to obtain a new policy covering the Dodge Ram with Tillman as the named insured. Tillman explained in his deposition that his mother took care of his insurance needs. She did not consult with him about what coverages he wanted, and he was not even aware of what coverages he had. He merely paid his mother a monthly amount for his insurance. His deposition reflects no intent to have obtained a separate policy or even UMBI coverage for the Dodge Ram. He simply left it up to his mother. We also note that Tillman’s license, a copy of which was provided with the title when the Dodge Ram was added to the policy, showed his address to be the same as Carter’s.

17Carter stated in her deposition that she told Tillman that she would take care of the insurance for his new truck and that she never discussed UMBI coverage with him. Most importantly, Carter stated that she told West that she wanted to add the truck to her policy. Nothing in Carter’s deposition indicates the intent to obtain a separate policy covering the Dodge Ram or UMBI coverage for it. The Dodge Ram was simply added to Carter’s policy as she requested.

Also, we note that Carter did not state in her deposition that she informed West when she added the Dodge Ram to her policy that Tillman had his own residence. Carter merely indicated that she went to West’s office each month to pay her insurance bill and that she had mentioned at some point that Tillman was out on his own. This hardly suffices to show that West would have known when the Dodge Ram was added to Carter’s policy that Tillman had his own residence, especially as his driver’s license indicated otherwise and as Tillman was already designated a member of Carter’s household on her policy.

Tillman seeks to place the onus on West to have written a separate policy for the Dodge Ram when that was not what Carter requested or even what he directed Carter to obtain. Insurance agents have no independent duty to identify their clients’ needs. Heidingsfelder v. Hibernia Insurance, L.L.C., 2009-0753, p. 4 (La.App. 4th Cir.11/18/09), 25 So.3d 976, 978. As recently discussed in Isidore Neuman School v. J. Everett Eaves, Inc. and Westport Insurance Corp., 2009-2161 (La.7/6/10), 42 So.3d 352, it is the client who has the duty and responsibility to determine the coverage needed, advise the agent of those needs, and then to review the policy to determine whether it meets his needs.

We find that Tillman has not come forth with evidence to show there is a genuine issue of fact for trial. It is clear from his and Carter’s depositions that neither intended to get a separate policy covering his Dodge Ram. As requested by Carter, the Dodge Ram was added to her policy, which did not include UMBI coverage. We are not faced with a situation where the insurer is declining liability coverage due to the fact that Tillman, not Carter, owned the vehicle. Here, the policy simply does not provide [8UMBI coverage for any listed vehicle as that coverage was properly rejected by Carter.

Lastly, we find no merit to Tillman’s argument that Carter’s UMBI waiver is invalid as to him because he did not give her written authority to reject UMBI coverage on his behalf. Tillman bases this argument on Holloway, supra, which held that a mother could not without written authorization waive UMBI coverage on behalf of her adult son. In that case, the son was the named insured, had spoken to his insurance agent about what coverages he wanted, and had informed the agent that his mother would execute the necessary documents on his behalf, including a waiver of UMBI coverage. In contrast to Holloway, supra, we have here the named insured, Carter, who waived UMBI coverage for her policy. Carter did not waive UMBI coverage on behalf of Tillman under his own policy. Holloway, supra, does not apply in this situation.

Because USAgencies has shown that Carter waived UMBI coverage and because Tillman has not shown that there is a genuine issue of fact for trial as to the validity of Carter’s waiver or as to suggest that the policy should be reformed, we find that summary judgment was properly granted.

CONCLUSION

For the reasons stated, we affirm the trial court’s summary judgment in favor of USAgencies. Costs of appeal are assessed against the appellant, Michael Tillman.

AFFIRMED.

BROWN, C. J., dissents with written reasons.

BROWN, Chief Judge,

dissenting.

|,The Dodge truck was added onto Paris Carter’s insurance policy; however, because she did not own the truck, it could not be covered by her policy. A new policy should have been issued in Michael’s name. Deposition evidence was presented in connection with the motion for summary judgment. Mrs. Carter testified that she provided accurate information to the insurance agent concerning her adult son, Michael Tillman. Specifically, Mrs. Carter told the agent that Michael had a job and was living in his own apartment. Mrs. Carter supplied the agent with a copy of the truck’s title. The title identified Michael Tillman as the owner of the vehicle and listed the address of his apartment, which is different than Mrs. Carter’s address. Mrs. Carter further testified that the agent, with whom she had done business with for several years, completed the application and, after completing it, gave it to Mrs. Carter to sign. Mrs. Carter, who is a person of limited education, signed the application as instructed.

Defendant did not present any information from its agent in support of its summary judgment motion. The majority opinion has simply decided that Mrs. Carter and her son are not creditable. Clearly, there exist material fact issues and summary judgment is not appropriate.


author: PEATROSS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee In the Interest of J.T., Defendant-Appellee.
    No. 46,174-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.
    Per Curiam Opinion March 4, 2011.

      Legal Services of North Louisiana, Inc. by Margherita McWilliams, for Appellant, J.T.
    J. Brad Smitherman, for Appellant, S.T.
    W. Allen Haynes, for Appellee, J.C.
    Kimberly S. Smtih and Michael Nerren, for Appellee, State of Louisiana, Doss.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

|2S.T. appeals from a trial court judgment terminating her parental rights to her child, J.T. The State of Louisiana and the Department of Children and Family Services appeal from the portion of the trial court judgment declining to terminate the parental rights of the child’s father, J.C. For the reasons stated herein, we affirm.

FACTS

In December 2008, J.T. was born, and shortly thereafter, placed into the custody of the State of Louisiana, Department of Social Services, Office of Community Services (currently, Department of Children and Family Services) (“DCFS”). Both of J.T.’s parents were incarcerated at the time of his birth. In March 2009, the child was adjudicated a child in need of care and was continued in the custody of DCFS, but was physically placed in the home of his paternal aunt, L.C.

J.T.’s mother, S.T., whose parental rights to two other children have been terminated, was ordered to complete a case plan when she was released from prison with the goal of reunification with the child. J.T.’s father, J.C., who is incarcerated, was also ordered to participate in a case plan. J.C. is scheduled to be released from prison in February 2011. During the period of time in which his parents were ordered to complete the aforementioned case plans, J.T. was removed from his paternal aunt’s home and placed in, and then removed from, several different foster homes until he was ultimately placed in foster care with the Pittman family, where he currently remains.

In early May 2010, at a case plan review/permanency hearing, DCFS changed the goal for J.T. from reunification with his biological parents to adoption. DCFS filed a petition for the termination of the parental rights of both parents shortly thereafter. A trial was held in the matter in September 2010. As previously stated, the trial judge terminated the parental rights of the child’s mother, S.T., but did not terminate the parental rights of the father, J.C. In his written judgment, the trial judge stated that the father had been incarcerated during the majority of the child’s life and should be given an opportunity to “remediate on his release from prison” in February 2011.

IsS.T. appeals the portion of the trial judge’s ruling terminating her parental rights. The State and DCFS appeal the portion of the trial judge’s ruling declining to terminate the parental rights of J.C.

DISCUSSION

A. Termination of Parental Rights of Mother

In her sole assignment of error, S.T. argues that the trial judge manifestly erred when he terminated her parental rights after finding that the requirements of La. Ch. C. art. 1021 had been met. According to S.T., she was absent from trial because she did not receive proper service of process giving her notice of trial and her trial counsel was denied a continuance to secure her presence. As a result, S.T. argues that the trial court judgment terminating her parental rights should be vacated and the matter remanded.

La. Ch. C. art. 1021 provides:

If a parent against whom a proceeding is instituted resides within the state, service of citation shall be made either personally or by domiciliary service not less than five days prior to commencement of the hearing on the matter.

A review of the record reveals that the citation and service of the petition for involuntary termination of parental rights was served on S.T., via domiciliary service, on June 2, 2010, as indicated by the sheriffs return which has been supplemented into the record. S.T. did not personally attend the hearing in answer; however, she appeared through her attorney of record and entered a general denial to the petition without making objection as to service and citation of the petition. When trial of the matter was ultimately set for September 8, 2010, S.T. received citation and service of the trial date via personal service on August 5, 2010, as indicated by the sheriffs return which has been supplemented into the record. S.T. had more than a month’s notice prior to trial and simply failed to attend.

Given these circumstances, we see no error in the trial judge’s decision to deny the continuance requested by S.T.’s counsel on the day of the trial in order to secure S.T.’s presence. Further, we find that S.T. received adequate citation and service of process for all relevant proceedings in this matter in accordance with La. Ch. C. art. 1021.

This assignment of error is without merit.

B. Termination of Parental Rights of Father

IJDCFS alleges in its three assignments of error that the trial judge erred in declining to terminate the parental rights of J.T.’s father, J.C. The State fully adopts all arguments briefed by DCFS on behalf of the child.

In support of its position, DCFS first asserts that J.C. has failed to substantially comply with his court-ordered case plan and that there is no reasonable expectation of significant improvement in his conduct in the near future. Accordingly, the statutory requirements for termination of J.C.’s parental rights under La. Ch. C. art. 1015(5) have been met. Second, DCFS points out that J.C.’s prison sentence, which is in excess of five years, has rendered him incapable of caring for or supporting J.T. and has prevented him from ever providing a plan of care for the child. Thus, the statutory requirements for termination of parental rights under La. Ch. C. art. 1015(6) have also been met. See also La. Ch. C. art. 1036(E). Finally, DCFS contends that, in accordance with La. Ch. C. art. 1037(B), it is in J.T.’s best interests that J.C.’s parental rights are terminated so that J.T. will be freed for adoption by his foster family, the Pitt-mans.

In response, J.C. argues that the trial judge did not manifestly err in declining to terminate his parental rights at this time, thereby allowing him an opportunity to “remediate” and complete a case plan with J.T. after he is released from prison in February 2011. We agree.

Children whose parents are unwilling or unable to provide adequate safety and care to meet their needs are protected by Title X of the Louisiana Children’s Code which provides a judicial process for the termination of parental rights and for certifying the child for adoption. La. Ch. C. art. 1001; State ex rel. A.R.H. v. Hines, 35,800 (La.App.2d Cir.2/27/02), 810 So.2d 1166.

In termination proceedings, courts must balance the two private interests of the child and the parents. State ex rel. A.R.H. v. Hines, supra. It is well established that a parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719; State ex rel. B.H. v. A.H., 42,864 (La.App.2d Cir.10/24/07), 968 So.2d 881. The child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit | ^establishing stable, long-term relationships found in a home with proper parental care. State ex rel. G.J.L., 00-3278 (La.6/29/01), 791 So.2d 80; State ex rel. A.R.H. v. Hines, supra.

In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State ex rel. G.J.L., supra; State ex rel. C.M.M. v. T.P.M., 42,238 (La.App.2d Cir.5/9/07), 957 So.2d 330; State ex rel. M.H. v. K.W.H., 40,332 (La.App.2d Cir.9/23/05), 912 So.2d 88; State ex rel. A.R.H. v. Hines, supra. In all proceedings, when a ground justifying termination of parental rights is proven, the primary concern is to secure the best interest of the child. State ex rel. G.J.L., supra; State ex rel. A.R.H. v. Hines, supra. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. State ex rel. A.R.H. v. Hines, supra; State ex rel. R.C. v. Everett, 35,749 (La.App.2d Cir.1/23/02), 805 So.2d 1205.

Termination of parental rights is a severe and final action, so the state must satisfy an onerous burden of proof in order to terminate these rights. State ex rel. B.H. v. A.H., supra. The state bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. C.M.M. v. T.P.M., supra. Although there are several statutory grounds for involuntary termination of parental rights set forth in La. Ch. C. art. 1015, only one ground need be established. State ex rel. S.N.W. v. Mitchell, 01-2128 (La.11/28/01), 800 So.2d 809; State ex rel. B.H. v. A.H., supra.

When the trial court finds that the alleged grounds set out in any paragraph of La. Ch. C. art. 1015 are proven by the evidentiary standards required by La. Ch. C. art. 1035, and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. See La. Ch. C. arts. 1015, 1035, 1037(B) & 1039; State ex rel. C.M.M. v. T.P.M., supra; State ex rel. C.E.C. v. D.M.D.B., 40,409 (La.App.2d Cir.9/28/05), 912 So.2d 418. The | (¡consideration of the best interests of the child shall include consideration of the child’s attachment to his current caretakers. See La. Ch. C. art. 1037(B).

In termination of parental rights cases, the trial court’s factual findings will not be set aside in the absence of manifest error. State ex rel. B.H. v. AH., supra; State, Dept. of Social Services ex rel. D.L.F. v. Phillips, 34,645 (La.App.2d Cir.4/4/01), 785 So.2d 155; State in Interest of S.D. v. Moore, 31,192 (La.App.2d Cir.8/19/98), 717 So.2d 265; State in Interest of K.L.B. v. Biggs, 29,512 (La.App.2d Cir.2/28/97), 690 So.2d 965.

La. Ch. C. art. 1015 provides in pertinent part:

The grounds for termination of parental rights are:
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.
(6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

A sentence of at least five years of imprisonment raises a presumption of the parent’s inability to care for the child for an extended period of time, although incarceration of a parent shall not in and of itself be sufficient to deprive a parent of his parental rights. See La. Ch. C. art. 1036(E).

J.C. was incarcerated before J.T. was born. J.C. was given a case plan to complete while in prison, but he was not successful in doing so. J.C. states that he will begin working his case plan once he is released from prison in February 2011. While it is true that J.C. did not work any part of his case plan while he was incarcerated, there is no evidence in the record |7that any programs or services to complete the case plan were ever made available to J.C. while he was in prison. Additionally, while the Children’s Code provides that a sentence of at least five years raises a presumption of the parent’s inability to care for the child for an extended period of time, we note that J.C. was incarcerated prior to the J.T.’s birth and, further, that J.T. will only be two years old when his father is released from incarceration.

Considering these circumstances, we see no manifest error in the trial judge’s ruling declining to terminate J.C.’s parental rights so that he may be afforded an opportunity to complete a case plan with J.T. once he is released from prison.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court terminating the parental rights of S.T. and, further, declining to terminate the parental rights of J.C. Costs of this appeal are assessed equally to S.T. and to the Department of Children and Family Services. The total amount to be paid by the Department of Children and Family Services is $1,536.75.

AFFIRMED.

Per Curiam

Before WILLIAMS, GASKINS & PEATROSS, JJ.

PER CURIAM.

In the recently rendered majority opinion of this court, the State of Louisiana through the Department of Children and Family Services (“DCFS”) was incorrectly referred to as an appellant. DCFS did not file an appeal in this case and is not an appellant. Further, the portion of the opinion assessing costs to be paid by DCFS in the amount of $1,536.75 is deleted. The remainder of the opinion is unchanged.


text:
    Bonnie E. YOUNGBLOOD, Plaintiff-Appellee v. SOUTHERN AIR, INC., Defendant-Appellant.
    No. 46,183-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      McConnell & Slattery by John B. Slat-tery, Jr., for Appellant.
    Sentell Law Firm, L.L.C., Minden, by C. Sherburne Sentell, III, for Appellee.
    Before CARAWAY, PEATROSS & DREW, JJ.
   PEATROSS, J.

12Pefendant, Southern Air, Inc. (“Southern Air”), appeals a confirmation of default judgment against it and in favor of Plaintiff, Bonnie E. Youngblood, awarding Ms. Youngblood damages in the amount of $66,036, together with judicial interest until paid. For the reasons stated herein, we affirm.

FACTS

In July 2005, Ms. Youngblood purchased a Carrier 3.5 ton air conditioner and horizontal furnace and coil from Southern Air. Ms. Youngblood signed a “Retail Installment Contract,” which provided the purchase price of $5,500 at an annual percentage rate of 17.99 % payable in sixty (60) installments of $139.68. Southern Air employees installed the heating and cooling system in Ms. Youngblood’s home. In her petition, Ms. Youngblood alleged that the system was defectively installed. Specifically, she alleged that Southern Air’s installers placed the drain tube to the sub-floor only and did not cut through the floor in order to allow drainage out from underneath the house. Ms. Youngblood became aware of the problem in September 2009 when the floors in her house began buckling and the foundation had shifted due to water draining in the subfloor and spreading throughout the house.

On October 20, 2009, a certified demand letter was sent to Southern Air with no response. Thereafter, on December 23, 2009, Ms. Youngblood filed the instant suit seeking damages in an unspecified amount for all reasonable damages to the premises and costs. The citation and petition was served on Southern Air on January 4, 2010. Southern Air failed to answer within 15 days and a preliminary default was entered on January 20, 2010. No action was taken by Southern Air; and, on July 6, 2010, Ms. Youngblood filed a Motion for Confirmation of Default. In support of the motion, Ms. Youngblood filed into evidence the entire suit record which contained the petition, an affidavit of correctness, citation, sheriffs return of service, minute entry of preliminary default, affidavits of experts/contractors regarding the extent of the damages to Ms. Youngblood’s house and certificates as required by La. C.C.P. art. 1702.1, infra.

_]oOn July 6, 2010, the trial court rendered judgment in favor of Ms. Young-blood based on the documentary evidence presented in support of the motion and without requesting additional evidence in the form of live testimony. Southern Air received Notice of Judgment on that date. On July 22, 2010, Southern Air filed a Petition to Annul the judgment, which is apparently still pending in the district court. On September 3, 2010, Southern Air filed the instant appeal.

APPLICABLE LAW

La. C.C.P. art. 1702, Confirmation of Default Judgment, provides, in pertinent part:

B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima fa-cie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

La. C.C.P. art. 1702.1 governs the confirmation of default judgments without a hearing and provides as follows:

A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsuffi-cient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and |4that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed. B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

DISCUSSION

Conventional or Delictual Obligation

Southern Air argues that the trial court erred in confirming the default judgment because Ms. Youngblood’s claim is based on a delictual obligation which requires the taking of testimony in open court under La. C.C.P. art. 1702(B)(2). It further argues that there was insufficient evidence upon which to base the confirmation of default judgment. Ms. Youngblood maintains that the obligation sued upon is a conventional obligation and that the trial court properly confirmed the default judgment on the documentary evidence provided by her as provided in La. C.C.P. arts. 1702(B)(1) and 1702.1. We agree with Ms. Youngblood that the obligation to properly install the heating and cooling system was conventional in nature and that sufficient evidence was presented to support the trial court’s confirmation of default judgment.

The narrow issue presented is whether the agreement between Ms. Youngblood and Southern Air giving rise to the instant suit for damages was primarily a sales contract or a contract for installation services. Both agreements would be based in contract, with the former having been reduced to writing in the Retail Installment Contract and the latter being an apparent verbal agreement to install the heating and cooling system. This court has recognized the distinction between a contract for sale and a contract to install heating and air conditioning units. See Long Leaf Lumber, Inc. v. Summer Grove Developers, Inc., 270 So.2d 588 (La.App. 2d. Cir.1972).

We find that the agreement between Ms. Youngblood and Southern Air that formed the basis for this suit for damages was the verbal contracting out of Southern Air’s skill in installing the heating and cooling system in her |shome. Morris & Dickson Co., Inc. v. Jones Brothers Co., Inc., 29,379 (La.App.2d Cir.4/11/97), 691 So.2d 882, writ denied, 97-1259 (La.9/5/97), 700 So.2d 509. Indeed, Ms. Youngblood did not seek recission of the sale or return of the purchase price of the unit, nor did she allege that the unit was defective or operated in a faulty manner. Her action for damages was not based on the written Retail Installment Contract. The alleged breach of the verbal agreement to install the system, ie., the defective workmanship of Southern Air, caused the damage to the house. Simply stated, this action arose from the alleged breach of Southern Air’s contractual obligation to properly install the heating and cooling system. Such obligation is a conventional one and falls within section (B)(1) of the article. As such, only affidavit evidence was required to confirm the default judgment, unless the trial court had chosen to exercise its discretion and require the testimony of live witnesses. See La. C.C.P. art. 1702(B)(1).

Sufficiency of Evidence

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702, supra. A prima facie case is established when the plaintiff proves the essential allegations of the petition with competent evidence to the same extent as if the allegations had been specifically denied. Johnston v. Broussard, 41,477 (La.App.2d Cir.9/20/06), 940 So.2d 79; Louisiana Safety Ass’n of Timbermen-Self Insurers Fund v. Temlaco, Inc., 39,-459 (La.App.2d Cir.4/28/05), 903 So.2d 492. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial. Johnston v. Broussard, supra.

Appellate review of a default judgment is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.5/5/09), 9 So.3d 815. Generally, to obtain a reversal of a default judgment, a defendant must overcome the presumption that the judgment has been rendered on sufficient evidence and is correct. Spencer v. James, 42,168 (La.App.2d Cir.5/9/07) 955 So.2d 1287. This presumption does not attach, however, where the testimony is transcribed and contained in the record. Id.

| fiIn the case sub judice, because there was no live testimony transcribed, we review the default judgment under the presumption that the judgment was rendered on sufficient evidence. In order to make a prima facie case on breach of the oral contract to install the system, Ms. Youngblood must prove the existence of the contract, breach thereof and resulting damages. Attached to the Motion to Confirm Default Judgment is, inter alia, the affidavit of Ms. Youngblood which states that she purchased the system from Southern Air and personally observed a Southern Air crew install the system in her home. The affidavit also states that Ms. Youngblood was present when a contractor discovered that the cause of the extensive damage to the home was the water drainage in the subfloor from the improperly installed system. Also attached to the motion are affidavits of various contractors reflecting “bids” that were provided to Ms. Youngblood to perform the necessary repair work to her floors and foundation. The various repairs are itemized with the bids totaling $66,036, the amount awarded by the trial court. As previously stated, Ms. Youngblood did not seek return of the purchase price of the Carrier unit; therefore, absence of the Retail Installment Contract to prove that amount is immaterial. We conclude that Ms. Youngblood satisfied her burden of presenting sufficient proof of the demand to constitute a prima facie case and that the default judgment was based on sufficient evidence.

CONCLUSION

For the foregoing reasons, we affirm the default judgment against Southern Air, Inc., and in favor of Bonnie E. Youngblood awarding her damages in the amount of $66,036. Costs of this appeal are assessed to Southern Air, Inc.

AFFIRMED.