author: FREDERICKA HOMBERG WICKER, Judge. JOHNSON, J.,

text:
    STATE of Louisiana in the Interest of D.L.
    No. 11-KA-835.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Johnson, J., filed a dissenting opinion.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, David Wheeler, Elizabeth Curren, Assistant District Attorneys, Gretna, LA, for Plain-tiffAppellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡Juvenile-appellant appeals his adjudication of delinquency for armed robbery. Because we find that his counsel failed to render effective assistance of counsel in representing juvenile-appellant in this matter, we vacate the adjudication and dismiss the petition against him pursuant to La. Chi C. art. 877(C).

FACTS AND PROCEDURAL HISTORY

On May 12, 2011, the Jefferson Parish district attorney filed a delinquency petition in juvenile court charging appellant, D.L., with armed robbery in violation of La. R.S. 14:64. On May 20, 2011, D.L. denied the allegations against him at his appearance to answer the petition. On June 22, 2011, the trial court adjudicated D.L. delinquent as charged of armed robbery. On July 21, 2011, the trial court entered a judgment of disposition that D.L. be placed in the Office of Juvenile Justice for one year. The court also addressed at that time the state’s Rule |ato Revoke Probation on D.L.’s prior charge of simple robbery; the court ruled that D.L. be placed with the Office of Juvenile Justice for one year on the probation revocation, to be served consecutively to the one year disposition imposed for the instant armed robbery adjudication. On July 29, 2011, the trial court granted D.L.’s motion for appeal.

In his appeal to this Court, D.L. raises three assignments of error: (1) the trial court erred in conducting an adjudication hearing after the lapse of the thirty day mandatory period set forth in La. Ch. C.art. 877(A); (2) D.L.’s trial counsel failed to render effective assistance by failing to seek dismissal of the petition against him pursuant to La. Ch.C.art. 877(C); and (3) the record contains two errors patent concerning the failure of the state to verify its “Rule to Revoke Probation” and the trial court’s failure to obtain a valid waiver of D.L.’s right to contradictory hearing prior to disposition as required by La. Ch. C. art. 913(A) and (B). Because our decision on assignment of error number two is dispositive of the other errors raised on appeal, we first address D.L.’s assignment of error in which he alleges that his counsel failed to render constitutionally required assistance in representing him in this case.

Juvenile defendants as well as adults are entitled to effective assistance of counsel. State in Interest of D. McK., 589 So.2d 1139, 1142 (La.App. 5 Cir.1991). An ineffective assistance of counsel claim is typically addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Davis, 09-1109 (La.App. 5 Cir. 9/14/10), 45 So.3d 203, 210, reh’g denied (10/12/2010), writ denied, 2010-2585 (La.4/1/11), 60 So.3d 1249; State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of 14error on appeal, the appellate court may address the claim in the interest of judicial economy. Davis, 09-1109 (La.App. 5 Cir. 9/14/10), 45 So.3d at 210. In this case, we find that the record on appeal contains sufficient evidence and, thus, we address the merits of D.L.’s claim of ineffective assistance of counsel.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Suggs, 11-64 (La.App. 5 Cir. 12/13/11), 81 So.3d 815, 825-26. Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. Id. To successfully prove a claim of ineffective assistance of counsel, one must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. There is no precise definition of effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of each case. State v. Howard, 09-928, p. 11 (La.App. 5 Cir. 5/25/10), 37 So.3d 1099, 1106.

The challenged conduct of counsel in this case is his failure to file a Motion to Dismiss the Petition against D.L. pursuant to La. Ch. C. art. 877(C). La. Ch. C. art. 877 provides:

A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall com-menee within ninety days of the appearance to answer the petition.
|BC. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition. D. For good cause, the court may extend such period.

In this case, the record reflects that D.L. was in continued custody awaiting adjudication. As such, the adjudication hearing should have commenced within thirty (30) days of May 20, 2011, the date D.L. appeared to answer the petition. The adjudication hearing commenced on June 22, 2011, beyond the thirty day period set forth in La. Ch. C. art. 877(A).

La. Ch. C. art. 877(C) provides the consequence for failure to ensure that the adjudication hearing is commenced timely. That Section provides that “[i]f the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.” The Louisiana Supreme Court has interpreted La. Ch. C. art. 877(C) and instructed that the consequence of failing to timely commence an adjudication hearing, without any showing of good cause prior thereto, is mandatory dismissal of the petition. In light of this advantageous consequence to the defense provided in the statute, jurisprudence reveals that the reasonable or standard professional conduct of counsel under facts similar to those presented in this case, where the adjudication hearing was not timely commenced, is the filing of a Motion to Dismiss pursuant to La. Ch. C. art. 877(C). In the instant case, we find that D.L.’s counsel’s failure to file a Motion to Dismiss pursuant to La. Ch. C. art. 877(C) was unreasonable and, therefore, deficient.

| (jUnder the two-prong test set forth in Strickland, D.L. still must show that his counsel’s deficient performance caused him prejudice. D.L. must demonstrate that, but for counsel’s deficient performance or unprofessional errors, the result of the proceeding would have been different. Suggs, 11-64, 81 So.3d at 825-26. As discussed above, the requirement that, if a juvenile is in continued custody, an adjudication hearing must commence within 30 days of the juvenile’s appearance to his/her answer is mandatory. State in the Interest of R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745. Further, the consequence that the trial court “shall” dismiss the petition if an adjudication hearing is not timely commenced is mandatory. Id. As such, it follows that, had D.L.’s counsel filed a Motion to Dismiss the Petition against D.L. pursuant to La. Ch. C. art. 877(C), the petition against D.L. would have been dismissed and D.L. would not have been adjudicated for armed robbery. Even further, the adjudication for the armed robbery charge at issue subsequently resulted in the revocation of D.L.’s probation and an additional one year imposed disposition. Therefore, it is apparent that D.L. was in fact prejudiced by counsel’s deficient performance in failing to file the appropriate Motion to Dismiss. Accordingly, we find that D.L. has successfully proved his claim of ineffective assistance of counsel.

As previously stated, the mandatory remedy for failure to timely commence an adjudication hearing within the time delays provided in La. Ch. C. art. 877(A) is release of the juvenile and dismissal of the petition against him as set forth in La. Ch. C. art. 877(C). Had D.L. received effective assistance of counsel in this case, he would never have been adjudicated for the armed robbery charge at issue; further, the subsequent revocation of his probation by reason of his adjudication on the instant armed robbery charge would never have occurred.

17Accordingly, for the reasons discussed above, we vacate the adjudication against D.L. and reinstate his previous probation conditions. Further, finding that the remedy provided in La. Ch. C. art. 877(C) is mandatory, we hereby dismiss the petition against D.L. and remand this matter to the juvenile court for further proceedings consistent with this opinion.

ADJUDICATION VACATED; PROBATION REINSTATED; PETITION DISMISSED; MATTER REMANDED TO JUVENILE COURT

JOHNSON, J., dissents in part.

JOHNSON, J.,

dissents in part.

Li completely agree with the majority opinion to vacate defendant’s adjudication, reinstate his probation conditions, and dismiss the Petition based on the analysis therein. However, I dissent from that portion of the opinion remanding the matter to the juvenile court. In my opinion, there is no reason to remand the case because there is nothing left for the juvenile court to do. Defendant’s adjudication has been vacated and the Petition dismissed. Therefore, I respectfully dissent from that portion of the opinion remanding the matter.

      . In order to maintain the confidentiality of the proceedings, as discussed in La. Ch.C.art. 412, initials are used to identify the juveniles involved.

      .The Court, in State in the Interest of R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745, 747, noted that La. Ch. C. art. 877’s predecessor article, article 67 of the Code of Juvenile Procedure, extended discretion to the trial judge and provided that "[i]f the hearing has not been commenced timely, upon motion of the child, the court shall release a child in continued custody and may dismiss the petition.” (emphasis added)

      . See State in the Interest of R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745; State ex rel. J.B., 03-0587 (La.App. 4 Cir. 12/10/03), 863 So.2d 669.

      . La. Ch. C. art. 107 provides that ”[t]he word 'shall' is mandatory, and the word 'may' is permissive.”


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Nathan PETTUS.
    No. 11-KA-861.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Nathan Pettus (“Pettus”), appeals his conviction for simple robbery in violation of La. R.S. 14:65.

Pettus was charged with simple robbery in 2008 and pled not guilty. On December 2 and 3, 2009, the case was tried before a six-person jury, and they found him guilty as charged. He filed oral motions for new trial and post-verdict judgment of acquittal. The motion for new trial was denied and, subsequently, the trial judge sentenced Pettus to imprisonment at hard labor for seven years to run consecutively with any other sentences currently being served. Pettus appealed.

On first appeal, this Court found, in an error patent review, that the trial judge failed to rule on Pettus’ motion for post-verdict judgment of acquittal. We vacated his sentence and remanded the case to the trial court for a ruling on his motion for post-verdict judgment of acquittal and resentencing, reserving to Pettus his right to appeal from his conviction and sentence in the event that the ruling was adverse to him.

|sOn remand, the trial judge denied Pet-tus’ motion for post-verdict judgment of acquittal. Afterwards, the trial judge sentenced him to imprisonment at hard labor for seven years to run consecutively to the sentence in case No. 09-656. The present appeal follows.

Angel Bougon testified that, on April 23, 2008, she was working at her boutique on the first floor of Old Metairie Village, a strip shopping center at 701 Metairie Road. At approximately 12:40 p.m., a man opened the door of her shop, put a cloth over his face, and started coughing. Mrs. Bougon described him as a stocky white male of average height wearing khaki shorts, a white button-up men’s dress shirt hanging out of his shorts, a white hat, and large sunglasses. She started backing up and told him not to give her whatever he had. As he was approaching the counter, the man said that he had just gotten over bronchitis. The man walked to the side where Mrs. Bougon was standing, coughed again, and said, “Don’t get scared, give me your money.” Mrs. Bougon asked if he was kidding, and he said, “Don’t make me get violent, get the money.” She pointed to her cash register, and the man said, “Well, go get it.” Mrs. Bougon walked to the register, and the man met her there. He said, “Give me your money,” so she opened up the register and gave him the money, which was approximately $250.

The man asked Mrs. Bougon where the rest of the money was, and she replied that that was all she had. The man told her to lift up the cash register drawer, so she removed it and told him that there was no more money. The man hesitated a few moments and said, “Where’s your purse? Get your purse.” When Mrs. Bougon did not respond, the man said, “Don’t make me get violent. Get your purse.” She got to the back door of the store before the man did, and she had almost closed the door, but the man pulled it open and said, “I don’t think so. Get your purse.”

|4Mrs. Bougon’s purse was sitting on a chair across the room, so she told the man, “There’s my purse. Go get it.” The man told her to go get it. She walked over to where her purse was, and the man did also. While the man was engrossed in the purse for a moment, Mrs. Bougon ran out of the back room. She made it to the front door, screaming, and she pushed the door open with her right hand. Mrs. Bougon had the phone in her left hand, which she had picked up before she left the counter to go into the back room. Before she could get out of the store, the man grabbed her hair and pulled her back into the store.

Mrs. Bougon fell on the floor, still screaming, and she was kicking. She saw the contents of her purse on the floor. The man leaned over Mrs. Bougon while she was on the floor, but she did not know why. Afterward, the man got up and left, and Mrs. Bougon got up and ran after him while calling 911. When she ran out of the door, she turned left, which faced Focis Street, and saw the man one store down at the end of the breezeway. By the time Mrs. Bougon got to the end of the breezeway, the man was gone. She stood in the middle of the parking lot while she was on the phone with the 911 operator, screaming and waving her arms to get attention and help. She then saw a black BMW that was backed into a parking place and a person wearing a white shirt and white hat crouched by the rear of the car on the passenger side.

Mrs. Bougon heard a click of the remote that one would use to unlock a car. While crouching, the man circled the car from the passenger side around the back of the car until he reached the driver’s side door. He got into the driver’s side of the car, and quickly drove off. When he left the parking area, he exited on Focis Street and turned left. Mrs. Bougon was able to see the license plate number on the BMW, which she relayed to the 911 operator.

| ¡¡Afterward, Mrs. Bougon went back inside her store where she saw the contents of her purse all over the floor. While she was looking on the floor and wondering why the man was leaning over her and what he might have taken, she saw a syringe, which did not belong to her. Mrs. Bougon later gave a statement to the police. She was shown a photographic lineup, but she could not identify the man who robbed her. Mrs. Bougon explained that she did not get a clear look at the man’s face because he held the cloth over his face during the entire incident.

Michael Sackett testified that, on April 23, 2008, around lunchtime, he was driving his car down Focis Street when he observed a lady (Mrs. Bougon) coming around the corner of the shopping center screaming and waving a phone at a man. Mr. Sackett also saw a man hidden behind the right side of a black BMW. The man’s back was to Mr. Sackett, and the back of the car was facing Mr. Sackett. The lady kept screaming and getting closer to the man hiding by the car. The man was holding his shirt up to hide his face, and he had a key in his hand.

The man opened the door from the passenger side and then slipped into the front of the car, climbed over the console, got into the driver’s seat, and started the car. He never turned around and Mr. Sackett did not see his face. The BMW exited the parking lot and turned left onto Focis Street. Mr. Sackett relayed the license plate number of the BMW to the police and followed the car until it got to the Stewart Building in the 100 block of Veterans Boulevard. The BMW entered the parking lot behind the Stewart Building, and Mr. Sackett parked outside of the building and remained in that position and on the phone with the 911 operator until the police arrived. The BMW did not leave the parking lot while Mr. Sackett waited there, on the shoulder of the street, for the police. Mr. Sackett was familiar with the parking lot, and he would be able to see anyone exiting.

IfiMr. Sackett described the man he saw as a white male wearing a white shirt covering his head, a baseball cap, tennis shoes, and khaki, Bermuda-type shorts that went past his knees. He testified that the man was young, well-built, about 6' or 6'1", and about 170 to 180 pounds. Mr. Sackett gave a statement to the police and was shown a photographic lineup; however, he could not identify anyone because Mr. Sackett never saw the man’s face.

Detective David Mascaro of the Jefferson Parish Sheriffs Office testified that he investigated the robbery. The crime scene was processed, including the syringe found on the floor. After the detective was provided with the license plate number of the black BMW driven by the suspect, he conducted a “computer check,” and learned that it was registered to Tracy Garcia, eventually learning that she was Pettus’ flaneé and the mother of his child. Detective Mascaro testified that Ms. Garcia reported that her BMW had been stolen twenty minutes after the robbery. In accord with Mr. Sackett’s report, the car was ultimately located at the Stewart Enterprises parking lot. The car was secured for evidence, towed, and processed.

Detective Mascaro met with Ms. Garcia, who was staying with a friend just off Metairie Road, at the same address from where she reported that her BMW had been stolen. From that location, Detective Mascaro took Ms. Garcia to the investigations bureau. While en route, Pettus continuously called Ms. Garcia’s cell phone. Pettus then talked to Detective Mascaro over the phone and instructed him not to speak to Ms. Garcia regarding her BMW. When the detective asked Pettus to explain what happened with Ms. Garcia’s vehicle, he replied that he could not because he was in Houston, Texas. Once Detective Mascaro and Ms. Garcia arrived at the detective bureau, they had a conversation, after which he prepared an arrest warrant for Pettus. Ms. Garcia told the detective that Pettus “had the 17vehicle,” and that he was staying with her and her friend at the Metairie Court address.

Detective Mascaro retrieved numerous items from the BMW including a man’s white dress shirt in size XXL; a white tank top T-shirt; two other T-shirts; two cash receipts for purchases at Rite-Aid; assorted handwritten notes; a handwritten prescription in Pettus’ name for Lorcet dated April 21, 2008, three days before the robbery, with an address of 1356 Silvia Street in Metairie, and a prescription in Tracy Garcia’s name for Lorcet with the same date and address; a man’s watch; a pair of brown sunglasses; and a bottle of Distiller’s Row Vodka.

The detective collected the white dress shirt, which was draped across the seat of the BMW, and the white T-shirt because he believed they were used in the robbery, and identified State’s Exhibit 48 as the shirt and the tank top he collected from the vehicle. The victim positively identified the man’s white dress shirt as a shirt that looked similar to the one the robber was wearing. She also positively identified the white tank top, stating that it looked similar to the one the robber had in his hand when he was covering his face.

The first cash receipt, which was from the Rite-Aid on Metairie Road directly across the street from the strip mall where the robbery occurred, showed a purchase of Distiller’s Vodka at approximately 8:30 a.m. on the morning of the robbery. The second receipt, which was from the Rite-Aid in the 700 or 800 block of Veterans Boulevard, showed a purchase of Distiller’s Vodka at 12:22 p.m., approximately twenty minutes before the robbery occurred. The Rite-Aid on Veterans Boulevard was very close to where the BMW was recovered.

Detective Mascaro went to each Rite-Aid and obtained video surveillance, which was played for the jury. With respect to the video obtained from the Rite-Aid on Metairie Road, Detective Mascaro positively identified Pettus entering the | sstore, talking to the cashier, and then exiting the store. He testified that there was a clear shot of Pettus’ face at one point on that video. Detective Mascaro noted that the man in the video was wearing tan or khaki cargo shorts, white tennis shoes, a tan or light-colored cap, and a black shirt.

Detective Mascaro testified that the video obtained from the Rite-Aid on Veterans Boulevard showed Pettus wearing the same shorts and shoes that he observed in the first video, but that Pettus was now wearing a white long-sleeved button-up shirt and sunglasses hanging on the front of the shirt. He further testified that the clothes being worn by Pettus at 12:22 p.m. on the videotape matched the description of the clothing worn by the robber approximately twenty minutes later. The detective explained that the Rite-Aid clerk at the Veterans store recalled Pettus because she had a detailed conversation with him as he purchased the vodka. The clerk remembered that Pettus told her he had just found out that his girlfriend was pregnant and that he was covering his mouth because he had a toothache. Detective Mascaro asserted that it took approximately five minutes to drive from the Rite-Aid on Veterans Boulevard to the 700 block of Metairie Road where the robbery occurred.

Pettus was arrested in Houston in July 2008. After obtaining a search warrant for his body, Detective Mascaro also had a crime scene technician obtain a buccal swab from Pettus for DNA testing. Sarah Corrigan, an expert forensic DNA analyst, testified that the wash from the syringe was compared to the buccal swab taken from Pettus, and it was consistent with a partial profile; therefore, he could not be excluded as a donor. Ms. Corrigan further testified that they were able to identify “four of the 13 markers.” She stated that, for the four of the thirteen markers tested, the genetic profile made from the wash of the syringe occurred with a frequency of approximately one in 33,000 persons of the |9Caucasian population, one in 250,000 persons of the African-American population, and one in 47,000 persons of the Hispanic population.

Additionally, Detective Mascaro instructed the crime scene technician to try and obtain fingerprints from the rear passenger side of the BMW where the suspect was seen crouching and from the pint-sized bottle of vodka found on the passenger side floorboard in the BMW. Aisha Prudhomme, a fingerprint expert, testified that two prints were obtained from the exterior passenger side door window of the BMW (the right middle finger and the right ring finger) and that the left middle fingerprint was obtained from the vodka bottle found inside the BMW, and all of them belonged to Pettus. No usable prints were obtained from the crime scene.

Pettus argues that the evidence was insufficient to support the conviction.

ISSUES ON APPEAL

On appeal, Pettus contends that he was convicted without anyone identifying him as the perpetrator and his conviction was based upon circumstantial evidence that failed to exclude several reasonable hypotheses of innocence.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every | ^reasonable hypothesis of innocence. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

The elements necessary to sustain a conviction of simple robbery are: 1) the taking of anything of value; 2) belonging to another; 3) from the person of another; 4) by use of force or intimidation. Here, Pettus does not contend the State failed to prove the elements of the crime; rather, he contends that his identity as the perpetrator was not proven beyond a reasonable doubt.

In his brief, Pettus notes that Ms. Garcia reported her car stolen twenty minutes after the robbery, contending that the individual who stole the car could have committed the robbery. He urges that no physical evidence conclusively proved he was the robber and states that the DNA found on the syringe was not proof beyond a reasonable doubt that the syringe belonged to him. According to Pettus, the fingerprints found on the car and on the vodka bottle only proved he had access to the car at some time, which was not surprising given that his girlfriend was the car’s owner. He points out that it was not conclusively proven that he was the person in the Rite-Aid stores and that the receipts found in the car could have belonged to the person who stole the car. He asserts that the person who stole the car could have used the clothing in the car to commit the robbery.

Inin connection with the sufficiency issue, we consider another assignment of error. There, Pettus also argues that the trial judge erred by denying his request to display his tattoo to the jury, which denied him the right to present a defense. He contends that, because identification was the key issue for the jury’s determination of guilt, the fact that none of the witnesses observed a tattoo on the perpetrator was relevant and material to his guilt or innocence.

The State must prove the defendant’s identity as the perpetrator in addition to proving the statutory elements of the charged offense at trial. As a general rule, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification.

After the State’s witnesses testified, defense counsel informed the trial judge that he wanted Pettus to display the tattoo on his arm to the jury. He argued that the tattoo was highly relevant because no one identified Pettus as the perpetrator and pointed out that none of the witnesses testified that they saw a tattoo on Pettus, even though, in one of the videos, the suspect was wearing a black short-sleeved shirt when he was leaning against the counter by the cashier. The State replied that the victim testified that she did not observe any tattoos, and the surveillance video from Rite-Aid showed that Pettus was wearing a long-sleeved white shirt, which the victim positively identified as the shirt worn by the robber. The State contended that there was no evidence presented in this case as to the existence of tattoos on Pettus’ body and how long he had them; therefore, there was no foundation to allow the tattoo to be shown. Lastly, the State argued that it had filed a motion for discovery, yet the defense had not shown them a tattoo prior to trial.

11?In making his determination, the trial judge said he had read the case of State v. Martin, relied upon by the defense, and distinguished it. The trial judge then said he was not going to allow the jury in the instant case to view the tattoo, stating, “In this case, there is no identification, and as such, it’s not relevant, because nothing was ever put in to make it relevant, as to whether or not he had a tattoo, which would distinguish Martin from this particular case.”

Afterward, the trial judge allowed defense counsel to proffer the tattoo as Defense Proffer I. Defense counsel asked Pettus to stand up and roll up the sleeve on his right arm. Pettus complied, and defense counsel proceeded to describe the tattoo, which read, “F..k you,” was two to three finger-lengths from Pettus’ wrist and three finger-lengths from his elbow on the back side, and not on the inside of his forearm. The trial judge observed that it was not bold lettering, and, from a distance, he could tell there was some ink on there, but he could not make out what it was, saying that it was not a very distinct tattoo. Defense counsel described it as having a cursive nature, not print, but not bound together. The trial judge agreed with the prosecutor that Pettus had dark hair on his arms, and the prosecutor stated that the hair covered the tattoo.

After he was convicted, Pettus filed a motion for new trial and a motion for post-verdict judgment of acquittal arguing that the trial judge erred by not allowing him to display his tattoo to the jury. The trial judge denied the motion for new trial, again distinguishing the instant case from State v. Martin. The judge explained that, in the instant case, there was never any suggestion that a tattoo existed, and there was no identification, unlike in Martin where the victim gave a tattoo description in her identification. The trial judge also explained that, in the |13instant case, the victim did not have enough time to look at anybody, unlike in Martin where the rape victim viewed her attacker for over an hour.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible. La. C.E. art. 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Relevancy and the admissibility of evidence are within the sound discretion of the trial court and its ruling will not be disturbed on appeal, absent a clear abuse of discretion.

In the instant case, Pettus’ identification was the primary issue because no one positively identified him as the robber and the case against him was circumstantial. Therefore, it would have been relevant if he had a tattoo on his right forearm at the time of the robbery that was not, but could have been, seen by the victim during the robbery.

However, we find that the trial judge did not err by denying Pettus’ request to show his tattoo to the jury, because, unlike Martin, the defense did not lay the proper foundation. There was no evidence introduced at trial that showed Pettus had the tattoo in question at the time of the robbery, or that the tattoo would have been reasonably visible or noticeable by the victim.

Detective Mascaro testified at trial that he was aware that Pettus had a tattoo of a phrase on his upper arm, although he did not take note of or observe any tattoo on his forearms. However, none of the witnesses, including Detective Mascaro, 114testified as to what that tattoo on his upper arm depicted or said, when Pettus acquired that tattoo, or whether he had it at the time of the robbery.

Unlike Martin, the victim did not put the existence of the tattoo at issue nor did Pettus demonstrate, at trial, the relevance of the tattoo in connection with his identity as the perpetrator.

Bougon testified that she did not see any identifying marks on the suspect such as tattoos or cuts. However, it was never proven whether the tattoo would have been reasonably visible to or noticeable by her. Defense counsel asked Bougon if she recalled telling the officer that the suspect was wearing a short-sleeved shirt, and the victim replied, “He had — it wasn’t a full long-sleeve shirt.” When the prosecutor asked her whether it was the type of shirt where the sleeves could be rolled up, she responded, “Right.” The still photograph taken from the Rite-Aid videotape twenty minutes before the robbery, State’s Exhibit 45, showed a white male wearing a long-sleeved white shirt with the sleeves covering his arms. Although the victim consistently testified that the robber was wearing a white shirt, and she identified State’s Exhibit 48 as looking similar to the shirt the robber wore, the victim never fully explained at trial exactly how short the sleeves were on that shirt, whether or not the sleeves were rolled up, and if so, how high, or whether she could see Pettus’ right forearm during the robbery.

After listening to the testimony and considering the evidence, the jury clearly believed that Pettus committed the robbery and rejected the alternative hypothesis of innocence. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of |1Rany witness; therefore, the credibility of witnesses will not be reweighed on appeal.

In light of the foregoing, we find that a rational trier of fact could have found that the evidence presented by the State, although circumstantial, was sufficient to prove Pettus’ guilt beyond a reasonable doubt. Further, the possible alternative hypothesis offered by Pettus, i.e., that another individual stole the car and committed the robbery, is not sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. We find it highly unlikely that Pettus drove his girlfriend’s car the day of the robbery, purchased vodka at the Rite-Aid twenty minutes before the robbery wearing the same clothes as the perpetrator, and, in the interim between that time and the time the robbery occurred, someone stole the car, robbed the victim while wearing Pettus’ clothes, and dropped a syringe with his partial DNA at the crime scene. In brief, Pettus also incorrectly contends that the only evidence presented by the State was the hearsay statement of Tracy Garcia (that Pettus had her car) elicited during Detective Mascaro’s testimony, which testimony should not have been admitted. This hearsay issue was not properly preserved for appeal since defense counsel failed to object at the time the testimony was offered and, thus, we decline to address it.

In summary, we find that the trial court properly excluded the tattoo evidence, and, further, that a rational trier of fact could have found the evidence presented by the State, although circumstantial, was sufficient to prove Pettus’ guilt beyond a reasonable doubt, excluding every reasonable hypothesis of innocence. These assignments of error are without merit.

| ^Finally, we consider the first assignment of error, that is, that the trial court violated Pettus’ right to counsel by denying his motion for continuance to hire private counsel. Alternatively, he argues that the trial judge erred by denying his request to reopen the motions so that his hired, chosen counsel could litigate on his behalf. Pettus contends that the request for continuance was made at a reasonable time (soon after his last attorney withdrew), in a reasonable manner (a request for a two-week continuance), and at an appropriate stage in the proceedings (prior to trial).

The record shows that an attorney was appointed to represent Pettus at his arraignment. On October 24, 2008, the motion hearing was continued to November 21, 2008, “to name attorney.” James A. Williams appeared on Pettus’ behalf on November 21, 2008, and he requested a continuance that was granted. The hearing was re-set for January 23, 2009. On that date, Pettus did not appear for the motion hearing, and an attachment was issued for his arrest.

An unsigned pleading in the record indicates that Calvin Fleming was appointed as counsel on March 6, 2009, and the minute entry for that date indicates that Pet-tus appeared for a motion, but Mr. Fleming was not present. The motion hearing was continued again to March 9, 2009.

On March 9, 2009, Pettus was found guilty of contempt of court and sentenced to six months in parish prison. Also on March 9, 2009, Mr. Fleming filed omnibus motions on behalf of Pettus. On March 11, 2009, Mr. Williams filed a motion to withdraw stating that he was not retained by Pettus to represent him and that motion was granted the next day.

On April 27, 2009, Pettus and his counsel, Calvin Fleming, appeared for the hearing on the motion to suppress the evidence. Mr. Fleming informed the trial judge that Pettus intended to hire private counsel and wanted to have the hearing |17on the motion to suppress evidence continued. The trial judge stated that Pettus had said that the last time they were there, to which Pettus replied that the attorney wanted a certain amount for a retainer which he would be able to obtain within the next two weeks.

The court decided to go forward with the motions that day, adding that, if Pettus had counsel hired that day, the court probably would have continued the motions. However, the trial judge said he was not going to continue the hearing because Pet-tus had “counsel listed of record” who was prepared. Pettus asked whether his new counsel would be able to file a motion to suppress, and the trial judge said not unless that counsel raised a new issue for consideration. The trial judge stated that he could not stop Pettus’ new counsel from filing a motion to reconsider, but they were going to proceed with the hearing on the motion to suppress. After hearing testimony and considering the evidence, the court denied the motion to suppress the evidence. On May 11, 2009, Juan La-badie filed a motion to enroll as attorney of record stating that he had been retained by Pettus to represent him.

Trial, which had been set for June 22, 2009, was continued at Mr. Labadie’s request to August 17. A motion hearing, which had previously been set, was continued, again at the request of Mr. Labadie, and re-set for the day of trial. Trial was re-set twice more at Mr. Labadie’s request. Defense counsel filed a motion to re-urge motions on behalf of Pettus on December 1, 2009, the day before trial was set to begin. Mr. Labadie argued that Pettus was made to go forward with motions with an attorney that was not of his choosing and that the proper procedures were not followed in appointing the public defender. The motion was denied. The record shows that Mr. Labadie represented Pettus throughout the remainder of the case, both at trial and at the sentencing hearing.

11sGenerally, a criminal defendant has the right to counsel of his choice. The defendant’s right to choose an attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. In addition, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice.

La.C.Cr.P. art. 707 states that a motion for a continuance shall be filed in writing at least seven days prior to the commencement of trial, and shall allege specifically the grounds upon which it is based. When made by a defendant, it must be verified by his affidavit or that of his counsel. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice. The Official Comments to this article state that it is applicable to motions for continuance with respect to other matters. The granting of a continuance is discretionary on the part of the trial judge. The denial of a motion for continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice.

In the instant case, Pettus had more than six months between the time he was arraigned and the date set for the hearing on the motion to suppress to retain other counsel. Further, Pettus’ appointed counsel did not advise the trial judge that he 119was unprepared to represent him. Additionally, Pettus had previously retained other counsel, Mr. Williams, who had already been given a continuance. Pettus had not yet retained other counsel on the morning of the hearing, and, finally, he has not made a showing of specific prejudice. We also note that his trial counsel did not file the motion to re-urge until the day before trial, more than six months after he was enrolled as counsel of record.

Under these circumstances, we find that the trial judge did not abuse his discretion in denying the motion for continuance or in denying the motion to re-open the motion hearing.

The record discloses no errors patent in the present matter.

For the foregoing reason, the verdict and sentence are affirmed.

AFFIRMED

      . State v. Pettus, 10-742 (La.App. 5 Cir. 5/24/11), 66 So.3d 1192.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

      . State v. Mitchell, 08-136, p. 11 (La.App. 5 Cir. 1/13/09), 7 So.3d 720, 728.

      . La. R.S. 15:438.

      . State v. Mitchell, 99-3342, p. 7 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

      .La. R.S. 14:65; State v. Jones, 00-190, p. 6 (La.App. 5 Cir. 7/25/00), 767 So.2d 808, 810, writs denied, 00-2449 (La.6/22/01), 794 So.2d 782 and 00-2493 (La.6/22/01), 794 So.2d 783.

      . State v. Mitchell, supra.

      . Id.

      . 519 So.2d 87 (La.1988).

      . State v. Hills, 03-716, p. 11 (La.App. 5 Cir. 12/9/03), 866 So.2d 278, 285, writ denied, 04-1322 (La.4/22/05), 899 So.2d 569.

      . State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . State v. Woods, 09-399, p. 24 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 410, writ denied, 10-784 (La. 10/29/10), 48 So.3d 1096 (citing State v. Reeves, 06-2419, p. 37 (La.5/5/09), 11 So.3d 1031, 1057, cert. denied, - U.S. -, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009)).

      . State v. Wilson, 09-108 (La.App. 5 Cir. 12/29/09), 30 So.3d 149, 153.

      . Id.

      . Id. (citing State v. Reeves, supra).

      . La.C.Cr.P. art. 712; State v. Kelly, 96-903, p. 16 (La.App. 5 Cir. 11/12/97), 704 So.2d 800, 807-08, writ denied, 97-3104 (La.4/9/98), 717 So.2d 1142.

      . Id.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Matsukata J. KEELING.
    No. 2011-KA-0945.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Ap-pellee.
    (Court Composed of Chief Judge CHARLES R. JONES, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| ,The State of Louisiana appeals from a trial court ruling quashing a bill of information that reinstituted a previously dismissed charge against the defendant, Mat-sukata J. Keeling. For the reasons that follow, we reverse the trial court ruling and remand the case for further proceedings.

On June 14, 2010, Keeling was charged by bill of information with one count of distribution of heroin, a violation of La. R.S. dOiOOOfAlCl). The defendant pleaded not guilty at the arraignment and the trial court scheduled a preliminary hearing and a hearing on motions to suppress evidence and statements for July 15, 2010. On July 15th, the trial court granted a joint motion for a continuance and rescheduled the motions hearing for August 13, 2010. Following the August 13, 2010 hearing, the trial court found probable cause, denied the motions to suppress the evidence and statements, and scheduled a trial on the merits for October 18, 2010. On October 18, 2010, the trial court granted a joint motion to continue the trial to November 22, 2010. On November 22, 2010, with 12the defendant and his attorney present in court ready for trial, the State requested a continuance. The trial court denied the continuance and the State immediately responded by dismissing the bill of information.

Later that same day, the State filed a new bill of information, reinstituting the heroin distribution charge against Keeling. At his arraignment on December 16, 2010, Keeling pleaded not guilty and the trial court scheduled the matter for a trial on February 17, 2011.

On January 19, 2011, Keeling filed a motion to quash the reinstituted bill of information, asserting that the State’s dismissal and reinstitution of the charge against him violated his right to due process under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, § 2 of the Louisiana Constitution, because it allowed the State a continuance otherwise not available to the defense. He also argued that the State violated the separation of powers doctrine under Article II, § 2 of the Louisiana Constitution because it usurped the trial court’s authority to grant or deny a continuance by effectively granting itself a previously denied continuance. Following a brief hearing on February 3, 2011, the trial court quashed the bill of information without explanation. The State timely appealed.

On appeal, that State argues that the trial court abused its discretion in granting Keeling’s motion to quash because the defendant neither alleged nor demonstrated a violation of his right to a speedy trial under the Sixth Amendment |sof the U.S. Constitution and Article I, § 16 of the Louisiana Constitution. The State points out that when it dismissed the original bill of information and filed the new bill the statutory time limits for prosecuting the felony offense at issue had not expired. The State also argues that Keeling has not demonstrated how the delay as a result of the dismissal and reinstitution of the charge prejudiced or will prejudice his defense or right to a fair trial.

The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1204.

Louisiana Code of Criminal Procedure art. 691 confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. La.C.Cr.P. art. 693 provides, subject to narrowly delineated exceptions, that dismissal of a prosecution “is not a bar to a subsequent prosecution.... ” La.C.Cr.P. art. 576, regarding the filing of new charges upon dismissal of prosecution, provides:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal |4was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

And, La.C.Cr.P. art. 578(A)(2) requires that trial of a non-capital felony be commenced within two years from the date of institution of the prosecution.

In this case, the record indicates that the felony offense occurred on May 28, 2010. Pursuant to La.C.Cr.P. art. 572(A)(1), the State had six years from that date to institute prosecution. The State timely instituted prosecution by filing the original bill of information on June 14, 2010. Thus, the State had until June 14, 2012, to commence the trial. See La. C.Cr.P. art. 578(A)(2). When the State dismissed and reinstituted the charge on November 22, 2010, within six months of the institution of prosecution, the State had approximately one year and six months to bring the matter to trial. Furthermore, when the trial court granted Keeling’s motion to quash the new bill of information on February 3, 2011, the State was still within the same two-year time period to commence the trial. Thus, the State’s dismissal of the prosecution was not for the purpose of avoiding the article 578 time limitation for commencement of trial.

Nonetheless, in State v. Love, supra, the Supreme Court recognized that the trial court has the inherent discretion to grant a motion to quash and to order a | sprosecution dismissed with prejudice after the State has entered a nolle prosequi to force a continuance, even under circumstances in which prescription had not tolled or would not toll shortly thereafter under La. C.Cr.P. art. 578, or in which there was no violation of a defendant’s Sixth Amendment right to a speedy trial. The Court expressly stated:

“[i]n situations where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.”

Id., 00-3347 at 14, 847 So.2d 1198,1209.

In State v. Batiste, 2005-1571 (La.10/17/06), 939 So.2d 1245, the Supreme Court held that “[a trial] court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a cases-by-case basis.” Id., 2005-1571 at 5, 939 So.2d at 1249 (citation omitted). In that case, the State entered a nolle prosequi dismissing a video voyeurism charge, because the victim failed to appear at trial and was hesitant to go forward with the case. Id., 2005-1571 at 6, 939 So.2d at 1249. The State reinstitut-ed the charge in a new bill of information. The Court held that the trial court abused its discretion by quashing the new bill and concluded the State did not flaunt its authority at the defendant’s expense when it dismissed and reinstituted the charge, because the State had a legitimate reason for entering the nolle prosequi and had not violated the defendant’s statutory rights or constitutional right to a speedy trial. Id., 2005-1571 at 8, 939 So.2d at 1251.

| fiThe Supreme Court, in State v. King, 2010-2638 (La.5/6/11), 60 So.3d 615, noted the “frequent collisions between a trial court’s inherent authority to conduct criminal proceedings ‘in an orderly and expeditious manner,’ ” La.C.Cr.P. art. 17, and the district attorney’s plenary authority to determine ‘“whom, when, and how he shall prosecute.’ ” La.C.Cr.P. art. 61. Id., 2010-2638 at 5, 60 So.3d at 618 (citations omitted). The Court acknowledged that when the prosecutor dismisses a charge, because the trial court has denied its request for a continuance, and then refiles the same charge to continue the prosecution, “he can be said to have ‘flaunted’ the [S]tate’s unique power and authority that the defense does not also possess.” Id., 2010-2638 at 6, 60 So.3d at 618, (quoting State v. Stephens, 00-2472, p. 1. n. 1 (La.3/16/01), 782 So.2d 562, 566 (Lemmon, J., dissenting)). However, the Court explained that:

because of the severe consequences of dismissing a pending prosecution that is neither time-barred as a matter of La. C.Cr.P. art. 578, nor precluded by the Speedy Trial Clause of the Sixth Amendment, we made clear in Love that the state must exercise that authority in such a way that it does not simply disrupt the trial court’s conduct of the proceedings or challenge the court’s authority to manage its docket, but also significantly disadvantages the defense at any forthcoming trial.

Id., 2010-2638 at 6, 60 So.3d at 619. (Emphasis added).

In King, the defendant was charged with issuing worthless checks. The district attorney dismissed the original bill of information after the trial court refused to grant the State a continuance because it was having trouble procuring financial records from a bank. After the State reinsti-tuted the charges, the defendant filed a motion to quash, arguing a violation of the separation of powers doctrine. The trial court granted the motion, and the First Circuit affirmed on |7appeal. Upon review, the Supreme Court found that to the extent that the defendant’s motion to quash failed to assert a violation of his Sixth Amendment right to a speedy trial, and claimed no prejudice to his defense as a result of the delay occasioned by the State’s dismissal and immediate reinstitution of the prosecution to obtain a continuance, the trial court erred by quashing the new bill and dismissing the case with prejudice. Id., 2010-2638 at 8, 60 So.3d at 620.

In the instant case, Keeling has neither alleged nor demonstrated a violation of his Sixth Amendment right to a speedy trial. Likewise, he neither alleged nor demonstrated any significant disadvantage to his defense at a future trial as a result of the delay occasioned by the dismissal and reinstitution of the prosecution. Based on those circumstances, we find the trial court abused its discretion and erred in granting Keeling’s motion to quash the new bill of information.

Accordingly, we reverse the trial court ruling that granted Keeling’s motion to quash and remand the case for further proceedings.

REVERSE AND REMAND

      . In the same bill of information, the State also charged co-defendant, Dionne Johnson, with possession of heroin, a violation of La. R.S. 40:966(C)(1). The trial court, on Keeling’s motion, granted a severance of the trial proceedings. On November 22, 2010, Johnson pleaded guilty as charged, waived the sentencing delay, and was sentenced. The case against Johnson is not at issue in this appeal.

      . The record does not indicate the reason the State requested a continuance.

      . La.C.Cr.P. art. 572 A(l) provides:
      Limitation of prosecution of noncapital offenses
      A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
      (1) Six years, for a felony necessarily punishable by imprisonment at hard labor.

      . State v. King, 2010-0074 (La.App. 1 Cir. 10/29/10), 48 So.3d 1288 (Kuhn, J„ dissenting).


author: EDWIN A. LOMBARD, Judge.

text:
    Edith Cronley SERCOVICH v. Gary T. SERCOVICH.
    No. 2011-CA-1780.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.
    Rehearing Denied Aug. 16, 2012.

      Robert C. Lowe, Marynell L. Piglia, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Ap-pellee.
    David F. Waguespack, Stephen P. Scul-lin, Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, New Orleans, LA, for Appellant, Buds Boat Rental, LLC and Shipyard Service, LLC.
    (Court composed of Chief Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

| ?The appellants, Bud’s Boat Rental, L.L.C. (“Bud’s”) and Shipyard Service, L.L.C. (“Shipyard”), appeal the trial court’s judgments denying a motion to quash subpoena and a motion for new trial in connection with a divorce proceeding between Edith Sercovich (“Ms. Sercovich”) and Gary Sercovich (“Mr. Sercovich”). After a review of the record, we remand the matter to the trial court.

Relevant Facts and Procedural History

In or around 2000-2001, Allied Towing Service, L.L.C. (“Allied”), a company solely owned by Mr. Sercovich, purchased Bud’s and Shipyard. On January 1, 2009, Allied purportedly sold its one-third interest in Bud’s and Shipyard to John Serco-vich and Gary Sercovich, Jr., Mr. Serco-vich’s sons from a previous marriage. This transfer of Allied’s one-third interest allegedly relinquished Mr. Sercovich of any ownership interest in Bud’s and/or Shipyard.

After fifteen years of marriage, on July 8, 2010, Ms. Sercovich filed a petition for divorce against Mr. Sercovich wherein she requested interim and final periodic spousal support. On May 1, 2011, as a means to obtain information and documentation regarding Mr. Sercovich’s income, Ms. Ser-eovich issued a Notice of Records Only Deposition and Subpoena Duces Tecum to Bud’s and Shipyard seeking the following list of documents (“Requested Documents”)':

|ol. Copies of all federal and state tax returns for the tax years 1995 to date.
2. All corporate or other business formation documents, minutes, and yearly reports, and operating agreements from 1995 to date.
3. All checking account records, including cancelled checks, checkbooks, check registers, deposit slips, and monthly statements (regardless of whether or not the account or accounts have been closed) from January 1, 2008 to date.
4. All bank books of any kind or nature, including, without limitation, passbooks, bankbooks, and/or certificates of deposit, showing any balance from January 1, 2008 to date.
5. Any and all credit cards and charge accounts and all statements and receipts received in connection with the use of such credit cards and charge accounts from January 1, 2008.
6. Any and all financial statements, loan applications or records containing financial information of any nature which have been submitted to banks, lending institutions, or to any person or entities, in connection with any application for credit or loans from January 1, 2005 to date.
7. Any and all computer generated data or backups from any and all personal or business accounting software which have been used in the last five years, including but not limited to, Quicken, Quickbooks, Microsoft Money, etc.

In response to these discovery requests, Bud’s and Shipyard filed a Motion to Quash Subpoena and Request for Protective Order on May 12, 2011, in the Civil District Court for the Parish of Orleans. In their memorandum, the appellants argued that pursuant to Louisiana Code of Civil Procedure article 1426, the subpoena and notices must be quashed and Mr. and Ms. Sercovich must be limited to discovery. Specifically, Bud’s and Shipyard averred that the Requested Documents seek privileged, personal, and/or confidential tax and banking information of third party non-litigants that are not relevant to the issues in the divorce proceeding between Mr. and Ms. Sercovich. The appellants also argued that Ms. Sercovich has several less invasive, less financially burdensome, and less vexatious methods of obtaining the information from Mr. Serco-vich, a litigant in the matter. In the alternative, the appellants claimed that they are entitled to judicial protection, requesting an in camera inspection, and a protective order.

14After the hearing on May 23, 2011, the trial court denied the appellants’ Motion to Quash Subpoena and Request for Protective Order by Judgment dated June 28, 2011, except to require that the documents be produced subject to a protective order.

On July 8, 2011, Bud’s and Shipyard filed a Motion for New Trial and Stay of Judgment requesting a new trial on the issue regarding whether the appellants may exclude the Requested Documents from production. On August 25, 2011, the trial court denied the motion for new trial.

Bud’s and Shipyard suspensively appealed, maintaining that the trial court erred in its: (1) June 28, 2011 Judgment ordering them to produce the Requested Documents to Ms. Sercovich; and (2) August 25, 2011 Judgment denying their Motion for New Trial.

Discussion

On appeal, citing Stolzle v. Safety & Systems Assurance Consultants, Inc., 02-1197 (La.5/24/02), 819 So.2d 287, 289, the appellants contend that the trial court erred in ordering the production of confidential and sensitive business records because Ms. Sercovich has not shown the relevancy of or good cause for the production of financial documents of a third party non-litigant.

Louisiana Code of Civil Procedure article 1422 provides in pertinent part that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. Art. 401. “The test of discoverability is not whether the particular information sought will be admissible |sat trial, but whether the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Wollerson v. Wollerson, 29,183, p. 2 (La.App. 2 Cir. 1/22/97), 687 So.2d 663, 665; citing Lehmann v. American Southern Home Ins. Co., 615 So.2d 923, 925 (La.App. 1 Cir.1993).

The Louisiana Supreme Court has delineated the “basic objectives” of the Louisiana discovery process as follows: (1) to afford all parties a fair opportunity to obtain facts pertinent to litigation; (2) to discover the true facts and compel disclosure of these facts wherever they may be found; (3) to assist litigants in preparing their cases for trial; (4) to narrow and clarify the basic issues between the parties, and; (5) to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims. Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La.1983) (citations omitted). “The discovery statutes are to be liberally and broadly construed to achieve [their] intended objectives.” Id.

A trial court has broad discretion in handling discovery matters and an appellate court should not upset such a ruling absent an abuse of discretion. In re Marriage of Kuntz, 05-0172, p. 4 (La.App. 4 Cir. 2/11/06), 929 So.2d 75, 78; (citation omitted). “An appellate court must balance the information sought in light of the factual issues involved and the hardships that would be caused by the court’s order when determining whether the trial court erred in ruling on a discovery order.” Wollerson, 29,183, p. 2, 687 So.2d at 665.

In the case before us, Ms. Serco-vich seeks to determine the income of Mr. Sercovich for the purpose of determining final periodic support. In determining the amount and duration of final support, the court considers factors including the | (jncome and means of the parties, as well as the liquidity of such means. La. Civ. Code art. 112(B)(1). “Means” include both income and property. Wascom v. Wascom, 97-0547 (La.App. 1 Cir. 6/29/98), 713 So.2d 1271, 1274; citing Loyacano v. Loyacano, 358 So.2d 304, 310 (La.1978). Thus, whether Mr. Sercovich has an interest in Bud’s and Shipyard that generates income is pertinent to the determination of spousal support.

The appellants contend that since January 2009, when Allied sold its one-third interest in Bud’s and Shipyard to John and Gary, Jr., the only two officers, members, and owners of the companies, (1) Mr. Ser-covich has never received a salary or any other form of direct and personal remuneration from Bud’s or Shipyard; and (2) neither Mr. Sercovich nor Allied has had any direct or indirect ownership interest in Bud’s or Shipyard. Accordingly, the appellants argue, the Requested Documents, which include the tax returns, credit card statements, financial statements, and internal accounting and business software records for the period after Mr. Serco-vich’s disposition of his indirect interest in Bud’s and Shipyard, are not relevant to Mr. Sercovich or the divorce proceeding between Mr. and Ms. Sercovich.

In support of their argument, the appellants maintain that they have produced to Ms. Sercovich all information that is necessary and relevant to her claims, including: (1) the 2009 sale documents relating to Allied’s disposition of its one-third interests in Bud’s and Shipyard; (2) all subpoenaed documents relating to Bud’s and Shipyard at the time of and before Allied disposed of its one-third interest therein; and (3) all documents respecting funds directly or indirectly paid 17to on or behalf of Mr. Sercovich, Ms. Sercovich, and/or Allied before and after Allied’s disposition of its one-third interests in Bud’s and Shipyard.

However, a review of the record reveals that a May 17, 2011 printout of the Louisiana Secretary of State online records identifies (1) Gary Sercovich as the Manager of Bud’s Boat Rental, L.L.C.; and (2) Gary T. Sercovich as the Manager of Shipyard Service, L.L.C., not Gary Sercovich, Jr. as claimed by the appellants. Also in the record is a Bud’s check dated December 10, 2010, for a payment to Blue Cross Blue Shield in the amount of $2,500.09 on behalf of “Gary Sercovich — Allied Towing.”

After a thorough review of the record, we find that the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See Borrello v. Borrello, 614 So.2d 91 (La.App. 4 Cir.1992), writ denied, 616 So.2d 706 (La.1993) (This Court allowed the wife of a partner in a law firm to obtain information on the firm’s contingency fee contracts and the firm’s state and federal tax returns, noting that the tax returns would aid the wife in establishing her husband’s interest in the partnership.). Thus, it was not an abuse of discretion for the trial court to order the appellants to disclose their tax returns, credit card statements, financial statements, and internal accounting and business software records. However, the trial court’s order was overbroad, because all business transactions made by Bud’s and/or Shipyard do not represent contributions to Mr. Sercovich’s income.

While we are cognizant of the confidential and sensitive nature of the requested financial records, we also recognize Ms. Sercovich’s right to discovery, as acknowledged by the trial court. However, this right is not absolute. See Id. |8(This Court recognized the plaintiffs discovery rights are not unlimited since the information sought involves, to a certain extent, the financial information of third parties.).

Accordingly, we find that requiring Bud’s and Shipyard to produce the Requested Documents under the scrutiny of the trial court will do justice to and protect the rights of Bud’s, Shipyard, and Ms. Sercovich. Therefore, we remand this matter to the trial court to conduct an in camera inspection of the Requested Documents and determine whether any of the documents are relevant to the divorce proceedings. Since we are remanding this matter, we pretermit a discussion regarding the denial of the motion for new trial.

REMANDED

      . By May 3, 2012, the parties indicated that the issue of interim spousal support was resolved.

      . These documents were not included in the record before us.