author: STEWART, J. BROWN, Chief Judge,

text:
    Richard GUNTER, et ux., Plaintiff-Appellants v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 46,796-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 8, 2012.

      Tyler & Johnson, Shreveport, LA, by Tommy J. Johnson, David G. Tyler, for Appellants Richard Gunter and Betty Gun-ter.
    Johnson, Stiltner & Rahman, by Musa Rahman, Baton Rouge, LA, for Intervenor Appellee La. Workers’ Compensation, Corp.
    Wiener, Weiss & Madison, Shreveport, LA, by Layne A. Clark, Jr., for Appellees State Farm Mutual Automobile Ins. Co. and Florence L. Gay.
    Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, by Margaret L. Tooke, Harry J. Philips, Jr., for Appellee St. Paul Fire & Marine Ins. Co.
    Ungarino & Eckert, Metairie, LA, by Matthew J. Ungarino, J. Michael Nash, for Appellee Massachusetts Bay Ins. Co.
    Before BROWN, STEWART, CARAWAY, DREW and LOLLEY, JJ.
   STEWART, J.

hAt issue in this appeal from a summary judgment is the validity of a waiver of uninsured / underinsured motorist (“UM”) coverage on behalf of the Bossier Parish Police Jury (hereafter the “police jury”). The trial court granted summary judgment in favor of the police jury’s liability insurer, St. Paul Fire and Marine Insurance Company (“St. Paul”) and dismissed the claims of the plaintiffs, Richard and Betty Gunter (“the Gunters”), against it. The Gunters now appeal. Finding there to be a genuine issue of material fact for trial, we reverse and remand for further proceedings.

FACTS

Richard Gunter, a police jury employee, was injured on July 21, 2008, when the vehicle in which he was riding as a passenger and which was owned by the police jury was hit by another vehicle. The Gun-ters filed suit on July 17, 2009, against the driver of the other vehicle and her insurer, their own insurer, and St. Paul. They alleged that St. Paul provided UM coverage for the police jury. After answering that the police jury had rejected UM coverage, St. Paul filed a motion for summary judgment.

St. Paul’s Motion for Summary Judgment

St. Paul asserted that the police jury rejected UM coverage on a form that met all statutory and jurisprudential requirements and that was signed on September 27, 2007, by its authorized representative, William Altimus (“Altimus”), the parish administrator. In support of its motion, St. Paul offered the extensive general liability policy providing coverage for the police jury from October 1, 2007, until October 1, 2008; the affidavit of |2insurance agent, David A. Montgomery, Jr., along with the signed UM rejection form; the affidavit of Winfred R. Johnston, police jury member and president in 2007; and Altimus’s deposition.

Montgomery’s affidavit states that his agency, the Montgomery Agency, Inc., worked with the police jury for 15 years for the purpose of securing and renewing its liability coverage which generally begins and ends on the first of October each year. For the “last several years,” Montgomery worked with Altimus to determine coverage needs. For several years, the police jury’s coverage had been written through St. Paul. As indicated by an entry on his calendar, Montgomery met with Altimus on September 27, 2007, at which time Altimus completed the “Uninsured / Underinsured Motorist Bodily Injury Coverage Form” by initialing the paragraph rejecting UM coverage, affixing his signature, and dating the form. The police jury did not pay a premium for UM coverage. Montgomery attested to his belief that Al-timus, as parish administrator, was authorized to act on behalf of the police jury in all respects in renewing its coverages and that the rejection of UM coverage on September 27, 2007, was consistent with the police jury’s “long-standing rejection of UM coverage in years past as well as the present.” Copies of the calendar page and the UM form signed by Altimus were attached to the affidavit.

Johnston’s affidavit states that he had been on the police jury for 10 years, that he served as president in 2007, and that he knows Altimus as a fellow police jury member and the parish administrator. The affidavit | ¡¡further states that Altimus, as parish administrator, had and has authority to work with the Montgomery Agency in connection with the annual renewals of liability coverages and to execute any documents, including the UM form, related to the renewal of coverages.

In his deposition, Altimus stated that he has been a member of the police jury since 1997 as well as parish administrator since July 15, 2002. Altimus explained that as parish administrator, he handles the daily operations of the parish on behalf of the police jury. The deposition includes the following questions by the Gunters’ counsel and replies by Altimus regarding his authority to execute contracts on behalf of the police jury:

Q. And as administrator, you’re authorized to execute contracts and documents approved by the police jury?
A. I am.
Q. Okay. Do you have any authorization to make decisions to sign contracts or documents without authorization of the police jury?
A. I do.
Q. And what governments [sic] are you provided with insofar as the police jury is concerned as to what you can and can’t sign?
A. Basically, if I get to a point where I feel that I need help or we’re treading new water, then I’ll ask the jury for a concurrence on items. Of all the things that we do in our office, I probably handle 85, 90 percent of everything as far as documentation or signing. We do have a treasurer that has certain functions that she’s responsible for. We have a secretary of the jury who is responsible for her particular area. And then, we have a president that’s elected and normally, he, or she in this particular case now, handles notices to the public; let’s see, ordinances that are approved by the jury, resolutions that are approved by the jury are always done by order of the president.

JjAltimus indicated that either he or the secretary / treasurer signed UM rejection forms. He verified his signature on the UM form signed September 27, 2007, and stated that he signed it either at his office or at the insurance agent’s office. Altimus described the yearly purchase of liability insurance as a “lengthy process,” which involves his review of the parish’s buildings and automobiles to determine what coverages are needed. He stated that there are a lot of conversations about insurance until the time of renewal, but he could not recall any specific conversations that had occurred about renewing liability coverage in 2007.

The Gunters’ Opposition to Summary Judgment

The Gunters opposed summary judgment on the grounds that there are material facts in dispute concerning whether the police jury knowingly rejected UM coverage, particularly as to whether Alti-mus was authorized to reject UM coverage on its behalf. The Gunters introduced the depositions of Altimus, Montgomery, and Johnston; certified copies of the indices and excerpted pages from the minutes of police jury meetings for the years 1995 to 2006; and certified copies of the indices and minutes for the police jury meetings in 2007. The Gunters also submitted an affidavit by an Elizabeth Lambright, who claimed that she examined the original minutes from the years 1995 through 2007 and that they did not contain any resolution authorizing Altimus to act on behalf of the police jury in purchasing automobile insurance or rejecting UM coverage.

The Gunters largely base their opposition on Johnston’s deposition, which they allege is contradictory to his affidavit on the issue of whether |,.Altimus was authorized to act for the police jury in rejecting UM coverage. When the Gunters’ counsel first questioned Johnston about the affidavit, he stated that he did not recall signing the affidavit. After being shown the affidavit, he verified his signature, stated that he signed it at the police jury office, and claimed that he read it. But Johnston did not know who prepared the affidavit and did not recall giving anyone information for it.

The Gunters’ counsel then questioned Johnston about how the police jury governs. When asked whether the police jury has to act as a whole to grant someone authority to act on its behalf, Johnston answered, “Not on everything.” But Johnston did indicate that he would want the police jury to vote on a purchase that would cost half a million dollars and grant authority for someone to act on such a purchase. Johnston explained that the police jury governs by voting as a whole body, and he stated that any motions, resolutions, or ordinances passed would be reflected in the minutes of the police jury meetings.

When questioned about the police jury’s actions with regard to the purchase of “automobile insurance,” Johnston did not recall any discussions about automobile insurance since being elected to the police jury in 2000. Likewise, he had no recollection of any motion or resolution authorizing anyone, including Altimus, to purchase automobile insurance or execute a UM waiver. However, when asked about whether Altimus had the “ability” to purchase the insurance from St. Paul, Johnston answered, “I would say he would have been authorized to do it.” Johnston explained that Altimus, as parish administrator and a police juror, executes many documents. However, 16he did not know of any resolution that explains what the parish administrator can and cannot do without direct authorization by the police jury.

On examination by counsel for St. Paul, Johnston verified each statement in his affidavit, testifying that he believed each statement to be true. Johnston indicated that the parish administrator’s duties include making expenditures on behalf of the police jury. He explained that all expenditures are reviewed and approved by the finance committee, which is made up of all members of the police jury and typically meets 30 minutes before the police jury meeting. Johnston was sure that the payment of insurance premiums would be included as a typical accounts payable invoice approved by the finance committee. He affirmed that Altimus as parish administrator was responsible for and had full authority to negotiate and obtain the police jury’s insurance coverages, even in the absence of a specific resolution to do so.

When asked by the Gunters’ counsel how he could say Altimus had this authority in the absence of a resolution granting such authority, Johnston explained that Al-timus had the authority because that is “the way they run the business. It’s always been run like that.” He also indicated that the police jury has an insurance committee whose job is to make insurance recommendations, and he agreed that if the police jury voted in the past to purchase auto insurance, then it should still function in the same manner.

Montgomery’s deposition did not differ from his affidavit. He stated that he met with Altimus to execute the UM form but could not recall |7specifics of the meeting. Although Montgomery stated that the police jury is his client, that he advises it on coverages and exposures, and that he works with it throughout the year on various issues and claims, he admitted that he does not generally meet with the police jury as a whole. Instead, he works with Altimus or the parish risk manager to determine coverages and to complete the application and renewal processes.

The excerpted minutes from the 1995 through 2006 police jury meetings include few actions with regard to liability insurance coverages and no mention of UM coverage. In September 1995, the police jury voted to renew its liability coverage. It obtained quotes for liability coverage from Montgomery and another agency in August 1996 and accepted Montgomery’s quote. In July 1997, it voted to employ an insurance consultant to advise it on renewal of its insurance coverages, and on September 25, 1997, it accepted the consultant’s proposal to renew general liability coverages through Montgomery. In August 1998, the police jury approved a three-year schedule for obtaining quotes for its liability insurance coverages, with the year 2000 being the next year in which it was to obtain quotes. Thereafter, the only other reference to liability insurance was on November 7, 2001, when it discussed having its general liability and workers’ compensation policies specify that the police jury would have input in selecting counsel for any legal cases.

The Gunters also introduced the minutes for 2007. These contain no reference to general liability insurance. The 2007 minutes do show that Altimus was appointed parish administrator for a one-year term on January | R17, 2007, and that the finance committee met monthly to authorize payment of the accounts payable invoices.

Trial Court’s Ruling

After hearing arguments, the trial court granted St. Paul’s motion for summary judgment. Based on the affidavits of Alti-mus and Johnston, the trial court concluded that Altimus, as parish administrator, had authority to act on behalf of the police jury in waiving UM coverage. The trial court reached this conclusion even though it believed that Johnston’s deposition testimony “may have varied” in some respects from his affidavit. The trial court also found it significant that the police jury was not questioning Altimus’s authority to have signed the UM form.

The judgment dismissing the Gunters’ claims against St. Paul was signed on March 21, 2011. The Gunters’ appeal followed.

DISCUSSION

The summary judgment procedure is favored, it is designed to secure the just, speedy, and inexpensive determination of every action, and it shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Duncan v. U.S.A.A. Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544. As an appellate court, we conduct a de novo review of a summary judgment under the same criteria as used by the district court when considering whether summary judgment is appropriate. Duncan, supra. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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, then [ flsummary judgment shall be rendered forthwith. La. C.C.P. art. 966(B). In conducting our de novo review, we consider all reasonable inferences to be drawn from the record in the light most favorable to the non-mov-ant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, rehearing denied, 2004-0806 (La.9/24/04), 882 So.2d 1134; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836.

UM coverage is provided for by statute (La. R.S. 22:1295) and embodies a strong public policy of providing full recovery to victims who sustain damages in automobile accidents caused by a tortfea-sor who lacks adequate liability insurance. Duncan, supra. UM coverage will be read into a policy unless validly rejected. Id.; Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213. The rejection or selection of lower limits of UM coverage or economic-only coverage “shall be made only on a form prescribed by the commissioner of insurance” and the “form shall be provided by the insurer and signed by the named insured or his legal representative.” La. R.S. 22:1295(l)(a)(ii). The insurer bears the burden of proving the insured rejected UM coverage or selected lower limits. Duncan, supra; Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992).

In Duncan, supra, the supreme court identified the following six tasks required to reject UM coverage on the prescribed form:

1. Initialing the rejection or selection of the coverage chosen;
2. Filling in the amount of coverage for each person and accident if lower limits are selected;
| m3. Printing the name of the insured or legal representative;
4. Signing the name of the insured or legal representative;
5. Filling in the policy number; and
6. Dating the form.

A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected UM coverage. La. R.S. 22:1295(l)(a)(ii). As explained by the supreme court, this presumption exists because the proper completion of the prescribed form “clearly evidences the insured’s intent to waive UM coverage.” Duncan, supra.

There is no issue concerning whether the UM coverage form used by St. Paul met statutory requirements. Examination of the form shows that Altimus’s initials appear next to the paragraph that states, “I do not want UMBI Coverage.” The name of the insured, the Bossier Parish Police Jury, is printed on the form along with the policy number. The effective date of the policy, 10/01/2007, is also printed on the form. Finally, the form is signed by Altimus in the blank for the signature of the named insured or legal representative, and the date September 27, 2007, is written on the same line. The form appears to have been completed in accordance with the Duncan requirements thereby giving rise to the rebuttable presumption that the police jury knowingly rejected UM coverage. To rebut this presumption, the Gunters argue that Altimus did not have authority to reject UM coverage and that the police jury did not knowingly reject such coverage.

Inin Stewart v. Edwards, 34,435 (La.App.2d Cir.4/4/01), 784 So.2d 740, this court stated that there is no legal requirement regarding the proof of the authority for a representative to sign a UM form. The issue of whether the validity of a rejection of UM coverage depended on proof of the authority of the corporate representative to sign the UM form was addressed as dicta because the plaintiffs had stipulated to the authority of the official who signed the form. Here, there is no stipulation by the Gunters to Altimus’s authority to have signed on behalf of the police jury. While there is no legal requirement that the insurer must produce proof of a legal representative’s authority as part of its burden of proving a valid rejection of UM coverage, this does not foreclose a tort victim from challenging whether the person who signed as legal representative was authorized by the insured to reject UM coverage.

The authority to reject UM coverage on behalf of a governmental entity has been addressed in several cases with differing results. In Rainey v. Gerarve, 461 So.2d 464 (La.App. 5th Cir.1984), writ denied, 463 So.2d 601 (La.1985), the court determined that the administrator of the state’s Division of Property and Casualty Insurance had authority to reject UM coverage for the Department of Public Safety (“DPS”). Although the administrator did not have written or formal authorization from DPS, all of DPS’s polices had been purchased through the administrator’s office, and he had signed the UM waiver forms each year. Testimony also indicated that the administrator discussed DPS’s insurance needs with its general counsel, who in turn discussed the issue with the heads of DPS. Thus, the [^administrator purchased policies that all concerned had agreed on and approved.

The fifth circuit in Walker v. Nobile, 606 So.2d 7 (La.App. 5th Cir.1992), writ denied, 607 So.2d 569 (La.1992), found that a payroll officer had apparent authority to reject UM coverage on behalf of Jefferson Parish and that the parish ratified the rejection each year. Both the parish and the insurer asserted that the parish never bought UM coverage, except for the parish president’s vehicle. The payroll officer, who worked for the parish for 34 years, who had assumed many duties of the finance director, and who was the custodian of the insurance policies, signed the rejection forms each year with the knowledge and approval of the parish’s executives and insurance committee.

In Desormeaux v. Lalonde, 578 So.2d 226 (La.App. 3d Cir.1991), writs denied, 581 So.2d 705 (La.1991) and 581 So.2d 706 (La.1991), the court affirmed a trial court finding that the City of Lafayette’s risk manager was not authorized to reject UM coverage. The ordinance creating the position of risk manager did not make the position the city’s legal representative in rejecting UM coverage, there was no other evidence that the city had granted actual authority for the risk manager to reject UM coverage, that he had the apparent authority to do so, or that the city had ratified his actions.

In Longman v. Allstate Ins. Co., 635 So.2d 343 (La.App. 4th Cir.1994), the court found that the Plaquemines Parish insurance manager did not have authority to reject UM coverage on behalf of the parish. The | ^insurer argued that the insurance manager’s mandate to administer the parish’s insurance needs implicitly included the right to reject UM coverage and that a resolution authorizing the purchase of liability insurance granted him the legal authority to do so. The manager testified that he rejected UM coverage because the parish resolution did not authorize its purchase. The councilman who introduced the resolution also testified that the parish had not intended to purchase UM coverage. After examining the resolution, which was silent as to UM coverage, the court concluded that the insurance manager had no authority to reject UM coverage without a specific resolution by the parish council to reject such coverage. Moreover, there was no other evidence showing that the parish authorized its insurance manager to reject UM or that he had the apparent authority to do so.

In these cases, which all appear to have involved trials on the merits rather than motions for summary judgment, the courts looked at whether the person who signed the form had either actual or apparent authority to reject UM on behalf of the governmental entity. In Rainey, supra, and Walker, supra, where apparent authority was found as the basis for rejecting UM coverage, there was some evidence of knowledge or approval on the part of the governing entity about the decision to reject UM coverage.

In this case, the 2007 minutes show that Altimus was again appointed parish administrator for a one-year term, but nothing in the minutes or record indicates the duties or scope of authority conferred on the parish administrator. Neither Alti-mus nor Johnston could point to the basis of Altimus’s authority to act on behalf of the police jury in rejecting UM | ^coverage other than the fact of his being the parish administrator. Altimus simply claimed that he could make decisions on some contracts without specific authorization by the police jury and that he seeks its concurrence on items when “I feel that I need help or we’re treading new water.” Johnston finally explained that Altimus had the authority absent any specific resolution because that is “the way they run the business. It’s always been run like that.” Moreover, the 2007 minutes do not indicate any action taken by the police jury with regard to purchasing liability insurance or rejecting UM coverage. References in the minutes to the finance committee’s monthly approval of the payment of unspecified invoices does not indicate that the police jury authorized Altimus to reject UM coverage. At most, the actions of the finance committee suggest that it approved payment of the insurance premium. The record does not indicate what role, if any, the insurance committee plays in determining whether to reject UM coverage.

Only conclusory statements support the claim that Altimus, as parish administrator, had authority to reject UM coverage on behalf of the police jury. The record does not show that Altimus acted with the agreement, knowledge, or approval of the police jury in rejecting UM coverage for the policy period at issue. At most, the record contains vague references by Montgomery and Altimus to discussions during the “lengthy process” by which Altimus determined the police jury’s coverage needs each year. Montgomery indicated that he primarily dealt with Altimus or the unnamed parish risk manager, not the police jury as a whole. Additionally, nothing in Altimus’s testimony or affidavit indicates that he ever discussed the 11srejection of UM coverage, or even the parish liability coverages, with his fellow police jury members. Johnston, the police jury president in 2007, could not recall any discussions about liability coverage or UM coverage then or during his years on the police jury. Viewing the record in the light most favorable to the non-movant and considering the strong public policy favoring UM coverage, we must conclude that there are genuine issues of material fact as to whether Altimus was authorized, by actual or apparent authority, to reject UM coverage on behalf of the police jury as it legal representative and whether the police jury knowingly rejected UM coverage for the relevant policy period.

CONCLUSION

For the reasons stated, we reverse the summary judgment in favor of St. Paul and remand this matter for further proceedings. Costs of appeal are assessed against St. Paul.

REVERSED AND REMANDED.

BROWN, Chief Judge, dissents and assigns written reasons.

CARAWAY, J., dissents for the reasons assigned by BROWN, C.J.

BROWN, Chief Judge,

dissents.

11 Finding no material issues of fact, the trial court granted defendant’s motion for summary judgment. Plaintiffs appealed. The submissions in support of the MSJ without question prove a valid rejection of UMBI coverage. The sole basis of plaintiffs’ case is that the official minutes for the BPPJ for the years 1995 through 2007 do not show the passage of a specific resolution authorizing William Altimus, or any other legal representative, to negotiate terms of coverage or execute any documents for the purchase of automobile liability insurance with St. Paul on behalf of the BPPJ, including UM coverage. That is their case. Defendant even admits that there are no minutes or express written authorization for Altimus to execute the liability insurance documents on behalf of the police jury. Thus, there are no material issues of fact and this matter should be an up or down vote.

In Stewart v. Edwards, 34,435 (La.App.2d Cir.04/04/01), 784 So.2d 740, this court held that a corporate executive’s authority to reject UM coverage may be established explicitly or implicitly. Specifically, we found that the affidavit testimony of the executive officer acknowledging his signature on the rejection form and his authority to execute such a form was sufficient proof of his authorization. In the case sub judice, Altimus’s deposition, as well as the affidavit and deposition of the BPPJ’s president, stated that Altimus was authorized to reject UMBI coverage and sign the appropriate form. Plaintiffs presented nothing to dispute this evidence.

Furthermore, after reviewing the excerpted minutes from the 1995 through 2006 police jury meetings, the majority opinion states:

|Jn September 1995, the police jury voted to renew its liability coverage. It obtained quotes for liability coverage from Montgomery and another agency in August 1996 and accepted Montgomery’s (St. Paul’s) quote. In July 1997, it voted to employ an insurance consultant to advise it on renewal of its insurance coverages, and on September 25, 1997, it accepted the consultant’s proposal to renew general liability coverages through Montgomery (St. Paul). In August 1998, the police jury approved a three-year schedule for obtaining quotes for its liability insurance coverages, with the year 2000 being the next year in which it was to obtain quotes.

It is clear that the BPPJ agreed to obtain insurance from St. Paul and renewed that policy yearly thereafter. The BPPJ met each year and approved the payment of the insurance bill.' Altimus, who was both the administrator and an elected member of the police jury, signed the necessary documents each year, including the rejection of UMBI coverage.

La. R.S. 22:1295(l)(a)(ii), which governs the issuance of uninsured motorist coverage in Louisiana, provides, in part:

The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. 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. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer. (Emphasis added).

| sIn McElroy v. Continental Cas. Co., 43,868 (La.App.2d Cir.06/24/09), 15 So.3d 377, 381, this court stated:

La. R.S. 22:1266(A)(5) defines the renewal of a policy as the issuance or delivery of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer. The first policy expired on October 1, 2003, and the second policy became effective on that date. The second policy contained the same liability limits as the earlier policy, and had the same insurer and named insured. Therefore, the second policy was a renewal policy, and under La. R.S. 22:1295(l)(a)(ii), a new form rejecting UM coverage was not required to be executed by Ameri-Pride. That AmeriPride attempted to execute a new form rejecting UM coverage with the renewal policy does not serve to make the earlier UM rejection ineffective, or make the later form supersede the earlier form.

Contrary to plaintiffs’ argument, the minutes of the BPPJ demonstrate that the police jury did agree to obtain insurance coverage from St. Paul, which in fact rejected UMBI coverage. Each year they reviewed the cost and paid the -bill. Equally obvious was that Altimus was authorized to execute the necessary documents.

A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.08/21/96), 679 So.2d 477. Considering the aforementioned, I would affirm the trial court’s granting of defendant’s MSJ.

      . The policy provided by St. Paul is a liability policy that protects against a variety of losses that might befall a municipality. Automobile insurance is just one of the many coverages provided in the policy. The premium for all the coverages for the October 1, 2007, to October 1, 2008, policy period was $668,929.

      . By Acts 2008, No. 415, § 1, effective January 1, 2009, the provisions of Title 22 were amended, reenacted and redesignated into a new format and numbering scheme. The former UM coverage provision, La. R.S. 22:680, was redesignated as R.S. 22:1295.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Larry Richard BROWN a/k/a “Dike”, Appellant.
    No. 46,669-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    James Edward Paxton, District Attorney, Kenneth A. Brister, Laurie R. Bris-ter, Damon D. Kervin, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

1,Larry Richard Brown (“Brown”) was convicted by the Sixth Judicial District Court, Parish of East Carroll, State of Louisiana, of one count of second degree murder, in violation of La. R.S. 14:30.1, and was sentenced to life in prison at hard labor without the benefit of parole, probation, or suspension of sentence. Brown now appeals. We affirm his conviction and sentence.

FACTS

On the night of November 12, 2008, Gerald King (“King”) was shot and killed while sitting in his car outside Uncle Darrell’s Mini Market (“Uncle Darrell’s”) in East Carroll Parish. Several people standing nearby witnessed the murder and stated that the defendant, Brown, walked up to the driver’s side window of the vehicle where King sat and fired a small black revolver into the vehicle several times. Police arrested Brown at his aunt’s house without incident the following day.

Brown was charged by bill of indictment with one count of second degree murder. Subsequently, Brown filed notice that he intended to produce evidence suggesting that others had a motive to kill King. The trial court ruled that such evidence would not be admissible unless the defendant was able to establish a sufficient foundation for the admission of character evidence during trial.

Brown later filed a motion to recuse Judge Crigler claiming that Judge Crigler would be unable to remain impartial because the victim’s mother had volunteered to assist with the judge’s election campaign. After a hearing, the motion to recuse was denied.

Injury selection began on October 11, 2010. During voir dire, 14 of Brown’s challenges for cause were denied, and Brown used all of his peremptory challenges before the jury was seated. On October 12, 2010, Brown filed a motion for change of venue arguing that the responses given by potential jurors during voir dire indicated that the level of pretrial publicity would deny him a fair and impartial jury. After a hearing, the trial court denied Brown’s motion for change of venue.

The jury trial began on October 13, 2010, and lasted two days. On October 15, 2010, the jury returned from deliberation with a verdict of guilty of second degree murder. Brown waived sentencing delay, and the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

Brown argues that the evidence adduced at trial was not sufficient to support a conviction of second degree murder. Specifically, Brown argues that the evidence was insufficient because: (1) the testimony from witnesses present at the scene of the shooting was rife with inconsistency; (2) many of the witnesses were under the influence of drugs or alcohol; (8) the key witness did not tell the same story more than once; and, (4) the witnesses contradicted each other on the issue of whether Brown was indeed the shooter. We disagree.

^Louisiana R.S. 14:30.1 states in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence, must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that a defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.02/13/08), 975 So.2d 753.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

Brown’s trial included the admission of physical evidence as well as the testimony of 16 witnesses, many of whom were police officers involved |5in the investigation of the case. The summary of pertinent evidence is as follows.

Antonio Davis testified that he was present at Uncle Darrell’s when the shooting occurred. Davis testified that on the night of the shooting, his vehicle was parked near the entrance to Uncle Darrell’s on the north side of the building. According to Davis, he was standing by the driver’s side door of his vehicle talking with someone while his girlfriend made purchases inside the store. Davis further explained that King’s vehicle was parked several feet away from his own at the northeast corner of Uncle Darrell’s and that King sat inside the driver’s seat of the vehicle directly across from Davis. Davis testified that while speaking with someone, he saw a flash, heard a loud bang, and took cover on the opposite side of his vehicle. From there, he stated that he was able to see a person dressed in a dark hooded sweatshirt fire a gun into King’s vehicle at close range several times and then walk across the street to the back of a nightclub named the 20/20 Club. Davis told the jury that after the shooter walked behind the 20/20 Club, Davis was able to identify Brown’s car drive out from behind the nightclub and leave the scene.

Jerry Baker testified that he was working inside Uncle Darrell’s on the night of the shooting. Baker stated he knew both Brown and King and spoke with King inside the store 20 to 30 minutes before the shooting took place. Baker explained to the jury that he heard four gunshots, and he ran to the front of the store to prevent his son from going outside. While standing | fiat the front of the store, he witnessed a man in a dark hooded sweatshirt cross the street from Uncle Darrell’s to the 20/20 Club.

Kevin Powell was another eyewitness to the shooting. Powell testified that he and several others were standing near the front of Uncle Darrell’s adjacent to the east side of the building talking and smoking marijuana. Powell stated that he and King spoke briefly and then King drove off. Powell claims that King returned a few minutes later spinning his tires and playing loud music from his car stereo. Powell told the jury that King parked his vehicle near the northeast entrance of Uncle Darrell’s such that Powell was then standing nearest the passenger side of King’s vehicle. Powell testified that once King’s car came to a stop and the smoke from the car’s tires dissipated, Powell heard a gunshot and ducked down. Powell testified that as he looked through the passenger side window of King’s vehicle, he saw the following: Brown stand next to King’s driver’s side window; King look up into Brown’s aim; Brown shoot King; and, Brown pull the hammer back on a small black revolver, lean into the window, and shoot King a second time. Powell stated that Brown then placed the revolver into a dark hooded sweatshirt that he was wearing and walked away. Powell testified that earlier in the evening, Brown was wearing a lighter colored sweatshirt than the one he wore during the shooting. Powell also stated that Brown was wearing dark gloves when he shot King.

Jermaine Carter also witnessed the shooting that night. Carter testified that prior to the shooting, he and Sheena Puckett witnessed Brown changing clothes from the trunk of his vehicle near the 20/20 Club. Carter |7stated that moments before the shooting, as Carter crossed the street from Uncle Darrell’s to the 20/20 Club, he passed by Brown who was heading in the opposite direction. Carter described Brown as wearing a dark camouflage hooded sweatshirt and a camouflage mask that covered the lower half of his face. Carter stated that as he and Brown passed in the street between Uncle Darrell’s and the 20/20 Club, he asked Brown what was going on, but Brown did not reply. Carter stated that shortly after he passed by Brown and proceeded toward the 20/20 Club, he heard a gunshot. Carter testified that he turned toward the noise and saw Brown standing near the driver’s side window of King’s vehicle firing a gun into it. Carter testified that after the shooting, Brown walked toward the 20/20 Club where Carter was standing and gestured for Carter to get into Brown’s car. Carter claims that he drove Brown’s car with Brown as a passenger from the scene of the crime and that Brown had him stop around the corner on First Street where Brown hid a small black revolver under a brush pile. Carter stated that after Brown hid the gun they continued down First Street. Near First and Hamley Street they almost got into an accident with another vehicle. In an effort to avoid the collision, Carter drove into a ditch alongside the road. Carter then testified that he fled the scene on foot once Brown’s vehicle was towed from the ditch.

Sheena Puckett also witnessed the shooting. Puckett claims that she and Carter both witnessed Brown changing his clothes out of the trunk of Brown’s vehicle from a light-colored hooded sweatshirt to a dark camouflage-colored hooded sweatshirt with a camouflage mask. Puckett Rnoted that she recognized Brown even with the mask, because he had worn the same mask to a Halloween party at her house several days earlier. Puckett testified that she saw Carter approach Brown between Uncle Darrell’s and the 20/20 Club, the two crossed paths in the street, and Brown told Carter, “Gone.” Puckett described Brown as then approaching King’s vehicle and shooting him through the driver’s side window four times. Puckett fled the scene after the shooting but later returned to retrieve her cell phone and clean up a cut she had on her arm from climbing over a fence as she ran away. On cross-examination, Puckett admitted to having drunk a pint of vodka and smoking two marijuana blunts before witnessing the shooting. However, she testified that she was not impaired such that she could not remember what took place that night.

At the time of the shooting, Off. Roger Wilson was employed as the Assistant Chief of Police in Lake Providence, Louisiana. Officer Wilson testified that when he arrived on the scene at 11:23 p.m., he observed King’s body sitting in a vehicle in front of Uncle Darrell’s with a gunshot wound to the left side of the face. Officer Wilson told the jury that while taking photos at the crime scene, he found in King’s car two cartridge casings which he placed in evidence bags after photographing them. One of the cartridge casings was found on King’s shoulder and the other on the floor of the vehicle between the driver’s seat and the door. Officer Wilson explained that once the Louisiana State Police arrived on the scene, he turned over the cartridge casings and his participation in the investigation was over. However, on cross examination, Off. Wilson admitted that he did |flnot turn the cartridge casings over to the state police at the scene but may have taken them back to the police station where they were placed in an evidence locker and then later turned over to the Louisiana State Police.

Dr. Frank Peretti performed the autopsy on King and testified as an expert in forensic pathology. Dr. Peretti stated that King died from three large caliber gunshot wounds to the head. Dr. Peretti indicated that the amount of unburned powder around one of the wounds on King’s face indicated that the wound was caused by a shot fired approximately four inches away from King’s face. Dr. Peretti testified that the lack of powder or “stippling” around the other two wounds indicated that they were likely caused by gunshots fired more than 20 inches from King’s face.

Officer Todd Cummings of the Louisiana State Police was the lead investigator on the case. Officer Cummings testified that, with the help of Carter, he was able to locate a small black revolver hidden under a brush pile located near the scene of the shooting. Officer Cummings admitted that Carter was not initially truthful during the investigation and that Carter told investigators he fled the scene of the shooting on foot. However, after Off. Cummings confronted Carter with the fact that Off. Cummings had found Carter’s driver’s license near the area where Brown’s car had driven into a roadside ditch, Carter changed his story and led police to the location of the revolver. Officer Cummings also testified that upon a search of the residence where Brown was rumored to be living, officers located a mask fitting the description, given by Puckett and Carter, of the mask worn by Brown during the shooting. The mask was found between a mattress and | mboxspring in the master bedroom of the house. Later, testimony by DNA analyst Doris Hoffpauir proved that Brown was the last person to have worn the mask.

Jeff Goudeau, the supervisor of the physical evidence unit at the Louisiana State Police Crime Lab, testified as an expert in ballistics and fingerprint processing. Goudeau explained the methods used to determine whether a particular cartridge casing was fired by a specific gun. Goudeau testified that he conclusively determined that the cartridge casings found on the victim’s body were fired from the same gun that Off. Cummings recovered from the brush pile with the help of Carter. Goudeau testified that he had two theories as to how the cartridge casings were left at the scene. First, either the shooter removed the cartridge casings from the gun and left them at the scene or, second, the shooter had left the loading port on the revolver open, and after firing the revolver, the shooter pointed the gun upward, causing the cartridge casings to fall out of the gun. Goudeau also testified that the bullets recovered from King’s head by Dr. Peretti were too badly damaged to conclusively determine whether they had been fired from the gun recovered from the brush pile.

For the state to prove its case, it had to show that Brown had specific intent to kill King and did so. Considering the evidence presented at trial in a light most favorable to the prosecution, we conclude that the state provided evidence sufficient to convict Brown of the second degree murder of King.

|T1No less than five people witnessed the killing of King. Many of the witnesses independently verified that Brown was the shooter. The description of the shooter, while varying slightly due to acceptable differences in perception, remained constant throughout the testimony of each eyewitness. Furthermore, witnesses repeatedly testified to having seen a black revolver used to kill King. Officer Cummings recovered a black revolver and it was determined by Goudeau as the weapon that fired the bullets from the casings found in King’s car. Two witnesses described Brown as wearing a mask during the shooting and a mask fitting that description was found hidden in the home where Brown was staying. DNA analysis conclusively proved that Brown was the last person to have worn the mask.

Defense counsel thoroughly cross-examined all witnesses and highlighted any alleged inconsistencies. The inconsistencies noted by defense counsel did not amount to drastic changes in testimony, but were more evident of slight differences in the ways in which questions were asked and answered. Although several of the witnesses were under the influence of drugs or alcohol when the shooting occurred, the impact of this fact is reduced considering that each witness gave a similar account of what occurred on the night November 12, 2008. The jury weighed the credibility of each witness and chose to believe the testimony of these witnesses. As stated above, a reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, supra. There is nothing in the record that warrants this court’s 112reversal of the jury’s determinations. This assignment of error is without merit.

Evidence of Others’ Motives to Kill Victim

In another assignment of error, Brown argues that the trial court erred by prohibiting him from presenting a full defense. Specifically, Brown argues that critical to his defense was his ability to prove, through pertinent character traits of the victim and the victim’s criminal record, that other people had a motive to kill the victim. The state filed a pretrial motion to prohibit the use of the victim’s criminal record during trial. The trial court ruled that Brown could not introduce evidence of the victim’s character without first establishing a proper foundation. Brown argues that the trial court’s pretrial ruling on the motion denied him of his constitutional right to present a complete defense. We disagree.

Louisiana C.E. art. 404(A)(2) governs admissibility of character evidence of a victim and states, in pertinent part:

(a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible.

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to present a defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Van Winkle, 1994-0947 (La.06/30/95), 658 So.2d 198; State v. Johnson, 41,428 (La.App.2d13 Cir.09/27/06), 940 So.2d 711. However, the right to present a defense does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Mosby, 595 So.2d 1135 (La.1992); State v. Laster, 44,870 (La.App.2d Cir.02/03/10), 33 So.3d 259. Where defense counsel fails to establish a foundation showing a connection between character evidence of the victim and the crime at trial, such character evidence is inadmissible absent other permissible grounds for admission. See State v. Flowers, 574 So.2d 448 (La.App.2d Cir.01/23/91).

Here, Brown failed to proffer the evidence that he wished to introduce at trial. However, a review of the record indicates that the trial court granted the state’s pretrial motion, ruling that Brown could not admit evidence concerning the criminal history of the victim unless he first laid a foundation supporting the relevance of such character evidence. Effectively, the trial court did not prevent Brown from presenting a defense, because Brown failed to lay a foundation sufficient to support the admission of the victim’s criminal record. Therefore, this assignment of error is without merit.

Motion for Recusal

Brown argues that the division of the trial court which ruled on his motion to recuse erred in denying his motion. Brown submits that the 114involvement of the victim’s mother and grandmother in Judge Crigler’s campaign created the appearance of impropriety in the case. We disagree.

Louisiana C. Cr. P. art. 671 states, in pertinent part:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

A trial judge is presumed to be impartial, and the burden is on the defendant to prove otherwise. State v. Dooley, 38,763 (La.App.2d Cir.09/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.02/18/05), 896 So.2d 30. In order to obtain a recusation based on bias, prejudice, and personal interest, the party seeking the recusation must establish grounds of a substantial nature based on more than conclusory allegations. State v. White, 42,725 (La.App.2d Cir.10/24/2007), 968 So.2d 901.

Here, the defendant has asserted the victim’s mother and grandmother worked on Judge Crigler’s election campaign two years prior to the trial. There is no indication that Judge Crigler had any knowledge of their involvement in his election campaign. Furthermore, as the trial court on the -motion for recusal found, Judge Crigler had administered several trials since his election campaign involving members of the King family. One such trial resulted in a term of life imprisonment for a member of the King family. Brown failed to prove that Judge Crigler would be biased, | ^prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial. It was not error for the trial court to deny the motion.

Motion for Change of Venue

In another assignment of error, Brown argues that the trial court erred in denying his motion for change of venue due to pretrial publicity. Specifically, Brown claims that responses made by prospective jurors during voir dire indicated a high level of public awareness and notoriety surrounding the trial with the result that a fair and impartial trial could not be obtained in that venue.

Changes of venue are governed by La. C. Cr. P. art. 622 which states:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

A defendant must prove more than mere public general knowledge or familiarity with the facts of the case to be entitled to a change of venue. State v. Sparks, 1988-0017 (La.05/11/11), 68 So.3d 435. The Supreme Court has enumerated some relevant factors used to determine whether a change of venue is necessary. State v. Bell, 315 So.2d 307 (La.1975). These factors are: (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) 11Rother events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and, (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. Id. A trial court is vested with great discretion in determining whether a change of venue is warranted. State v. Flood, 301 So.2d 637 (La.1974); State v. Walker, 28,577 (La.App.2d Cir.10/04/96), 681 So.2d 1023. Nevertheless, a reviewing court may make an independent evaluation of the record to determine whether the accused received a trial which was free and unfettered by outside influences. Walker, supra.

Upon review of the record, it appears that Brown failed to introduce any newspaper articles or other evidence concerning pretrial publicity or public opinion. The trial court based its decision solely on the responses given by prospective jurors during voir dire. The trial court noted that it “did not have that feeling of high electricity that you have sometimes when there is a lot of public sentiment about a case.” In addition, the trial court pointed out that prospective jurors appeared relaxed; a significant amount of time had passed since the murder and the trial; and, Brown did not have any special notoriety. We do not find a substantial basis for a finding that Brown was unable to receive a trial free and unfettered by outside influences. While some of the jurors mentioned that they had read about the incident in the local newspaper, all of these jurors indicated that the articles would have no bearing on their ability to remain impartial. This assignment of error is without merit.

117Challenges for Cause

Brown also argues that the trial court erred by denying his challenges for cause during voir dire. Brown claims that prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges in an attempt to cure the trial court’s error. Additionally, Brown claims that it is not possible to determine from the voir dire transcript which juror is speaking, because the court reporter left the names of the speakers blank during several points in the transcript and that this alone constitutes grounds for remand. We disagree.

Challenges for cause are governed by La. C. Cr. P. art. 797 which states:

The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

11sWhen appealing the denial of a challenge for cause, a defendant whose peremptory challenges have been exhausted need only show the erroneous denial of a challenge for cause; no showing of prejudice is required. State v. Hopkins, 39,730 (La.App. 2d Cir.08/17/05), 908 So.2d 1265, writ denied, 2005-2253 (La.03/17/06), 925 So.2d 541. However, the trial court has broad discretion in ruling on a challenge for cause, and the determination will not be disturbed unless a review of the entire voir dire indicates an abuse of discretion. State v. Lindsey, 2006-255 (La.01/17/07), 948 So.2d 105. A challenge for cause is not warranted when a prospective juror volunteers an opinion seemingly prejudicial to the defense but subsequently, on further inquiry, has demonstrated an ability and willingness to decide the case impartially according to the law and evidence. State v. Anderson, 2006-2987 (La.09/09/08), 996 So.2d 973, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009); State v. Wiley, 614 So.2d 862 (La.App. 2d Cir.1993).

The defendant characterized the following prospective jurors as suitable for cause challenge:

Linda Robinson Martin

Ms. Martin taught at a school where King’s children attended. Brown claims that it was error to deny this challenge for cause because of the parent-teacher relationship between King and Ms. Martin. However, Ms. Martin later testified that her relationship with King was purely professional, they were not close, and it would have no effect on her ability to remain impartial.

119Tiffany Nicole Moody

Ms. Moody claimed to have been a student of prosecutor Andy Brister; however, she did not discuss any detail as to the depth of the relationship. Brown claims that the teacher-student relationship would make it impossible for Ms. Moody to remain impartial because a teacher holds an inherent level of authority over the student. But, upon further questioning, Ms. Moody stated that this past relationship would have no bearing on her ability to be fair. Furthermore, there is no indication as to what stage in school Mr. Brister taught Ms. Moody.

Sheila Marshall and Shirley Holden

Both Ms. Marshall and Ms. Holden stated that they taught at the same school that King attended. Brown claims that these witnesses might have sympathy for the victim “conscious or otherwise.” Further questioning revealed that neither Ms. Marshall nor Ms. Holden had any relation to the victim aside from the fact that they both worked at the same school while the victim was a student there. Both prospective jurors stated that they would be capable of applying the law and evidence fairly.

Jacqueline Threats and Shirley Holden

Ms. Threats and Ms. Holden were both married to employees of a correctional facility. Ms. Threats originally stated that because of her husband’s work as a correctional officer, she would tend to favor law enforcement. However, she did eventually say that she could fairly apply |2nthe law and evidence. Neither Ms. Threats or Ms. Holden stated whether their husbands had any contact with the defendant in this case.

Shirley Bell Peeler

Ms. Peeler stated that she had read about the case in the newspaper and that she served the prosecutors chicken every Sunday as a result of her employment at Jong’s Deli. Both prosecutors denied ever going to Jong’s Deli on Sundays; however, Brown claims that Ms. Peeler’s perceived relationship between herself and the prosecutors is key and that this perception would create a tendency in Ms. Peeler’s mind to lend more credibility to the state. Upon questioning, Ms. Peeler stated that her relationship with the prosecutors would not cause her to place more credibility with the state.

Betty Stevenson Lee

Ms. Lee stated that she was related to King’s grandmother and had discussed the case with her at length. Ms. Lee also stated that she was a college student taking six credits. Brown argues that Ms. Lee’s personal relationship with the victim’s grandmother made her incapable of remaining impartial and that her college workload would distract her from her duties. However, Ms. Lee stated that she had no fixed opinion of the case.

Ashley Nicole Tuner

Brown claims that because Ms. Turner knew several of the witnesses in the case, had prior exposure through newspaper articles, and worked as a correctional officer, she was incapable of impartiality. However, Ms. Turner stated that she had not discussed the case with any of the witnesses l^and could remain impartial. Additionally, there was no indication that she had any contact with the defendant through her employment as a correctional officer.

Joseph Ross

Brown claims that Mr. Ross’s former employment as a sheriff’s deputy would prevent him from fairly applying the law and evidence. Mr. Ross stated that he could be fair and objective and there is no evidence in the record to indicate otherwise.

Frankie Stanfield

Brown argues that Ms. Stanfield admitted that her prior exposure to the case through newspaper articles could influence her decision in weighing the evidence. However, the trial court indicated that her statement was not sufficient to show that she would be partial as a result of pretrial publicity and that the statement was more of an offhand remark.

Frances Amacker

The record indicates that there were two prospective female jurors on the same panel with the last name Amacker. At times, it is unclear which Amacker the court is referring to during voir dire. Brown argues that Frances Amacker’s relation to the prosecution and the fact that the record was unclear as to which Amacker the trial court was referring to are grounds for error. Frances Amacker unequivocally stated that her relationship with the prosecution would not cause her to favor the prosecution.

122Robert B. Holt

Mr. Holt stated that he knew the victim’s grandmother and that one of the state’s attorneys had represented him in a separate legal matter. On both counts, Mr. Holt stated that his ability to be fair would not be affected.

Kelvin Jamal Lane

Mr. Lane stated that he coached a baseball team in the same league as a team coached by the prosecutor. Mr. Lane also acknowledged that he knew of the victim but indicated that this relationship was not at all close and would have no effect on his ability to remain impartial.

Sandra B. Campbell

Ms. Campbell stated that she attended a church also attended by members of the victim’s family and that she knew one of the prosecutors through her employment with the East Carroll Parish Police Jury. Ms. Campbell stated that neither of the above relations would affect her ability to remain impartial.

Based on the foregoing analysis of the answers to questioning at voir dire, it appears the disputed challenges for cause were properly denied. The fact that many of the jurors were acquainted with the victim or his family, or with the prosecutors, did not indicate there was cause for their removal from the jury. Each of the questioned jurors declared, and the trial court was satisfied, that they could render an impartial verdict according to the law and the evidence. The trial judge was present and was able to make a determination that the jurors could be impartial. The trial court’s decision is given great deference, and absent an abuse of that discretion, we will not | ^reverse the decision. For the foregoing reasons, this assignment of error is without merit.

Crime Scene Photographs

Brown argues that the trial court erred by admitting gruesome, prejudicial photographs which were redundant in nature and whose probative value did not outweigh the prejudice to his case. We disagree.

Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Washington, 30,-866 (La.App.2d Cir.08/19/98), 716 So.2d 936, writ denied, 1998-2473 (La.01/08/99), 734 So.2d 1229. The cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Langley, 1995-1489 (La.04/14/98), 711 So.2d 651. The admission of photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect. State v. Washington, supra.

The photographs objected to include one showing King’s body in the driver’s seat of his vehicle, one from the passenger seat showing King’s body slumped over, a close-up of a bullet wound to show powder burns, and one of King’s right hand showing blood spatters which indicate the velocity of the bullets. All four photographs were used during the testimony of the forensic pathologist to help explain the cause of death of the victim and to better illustrate the location of the shooter. Additionally, the photographs helped to corroborate eyewitness testimony concerning the events on the l^night of November 12, 2008. After a review of the record, we find that the prejudicial effect of the photographs does not outweigh their probative value. This assignment of error is without merit.

Use of Exhibits

Brown argues that the trial court erred by allowing the state to repeatedly reuse exhibits which had been marked by previous witnesses. Specifically, Brown argues that allowing a witness to observe a demonstrative marked by a prior witness is the equivalent of allowing that witness to sit in the courtroom and listen to the testimony of the previous witness. Brown claims that it will never be clear to what extent the testimony of each subsequent witness is affected by viewing the placement of stickers by previous witnesses and, therefore, the trial court’s error materially prejudiced his case. We disagree.

Sequestration of witnesses is governed by La. C.E. art. 615(A) which states:

As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.

The purpose of sequestration is to assure that a witness testifies as to his own knowledge, to prevent witnesses from being influenced by the testimony of others, and to strengthen the role of cross-examination in developing facts. State v. Holden, 45,038 (La.App.2d Cir.01/27/10), 80 So.3d 1053, writ denied, 2010-0491 (La.09/24/10), 45 So.3d 1072. The | ¡.¿injured party must prove, by a preponderance of the evidence, that a sequestration order violation occurred and that the violation materially prejudiced his case. State v. Lucas, 39,419 (La.App.2d Cir.03/09/05), 896 So.2d 331. In examining sequestration violations, the reviewing court considers the facts of each case to determine whether or not prejudice resulted. State v. Barber, 30,019 (La.App.2d Cir.01/21/98), 706 So.2d 563, writ denied, 1998-1353 (La.10/09/98), 726 So.2d 24.

Here, the state introduced several large photographs which they used to assist witness testimony: state’s exhibit 5 depicted the front of Uncle Darrell’s where the shooting took place; state’s exhibit 6 depicted the 20/20 Club across the street from Uncle Darrell’s; and, state’s exhibit 8 was a large map of the area surrounding the scene of the shooting. On direct examination, the state instructed Puckett, Davis, and Powell, respectively, to place a sticker with their initials on state’s exhibit 5 in order to indicate where they were standing at the time of the shooting and another sticker to indicate where King’s car was located when the shooting occurred. On direct examination, the state instructed Carter to place a sticker with his initials on exhibit 6 to indicate the location where he picked up Brown and to place a sticker on exhibit 8 to indicate where the accident took place following the shooting.

Each successive witness had an opportunity to view the location that previous witnesses claimed to have been standing or claimed the victim to have been located. Although it does not appear that a witness could have known which question the previous witnesses’ stickers were in response to, |2na review of the record indicates that the state referred witnesses to specific stickers on exhibits that previous witnesses had marked during direct examination. Even if the state’s use of the demonstratives violated the sequestration order, it does not appear that the violation materially prejudiced the defendant’s case. The suggestiveness of the demonstratives was not to the level that would allow a witness to fully fabricate significant testimony. Witness testimony, unaffected by the use of the demonstratives, was sufficient to support a conviction of second degree murder. The prejudice to the defendant was not material; therefore, it does not warrant reversal or remand. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Larry Richard Brown, are affirmed.

AFFIRMED.

      . It is unclear from the transcript whether the trial court accepted or rejected the challenge for cause. We assume that the trial court rejected the challenge for cause because Brown used a peremptory challenge on Ms. Moody.


author: WILLIAMS, J.

text:
    Andrenov Ladonne DUNKLIN, Sr., Plaintiff-Appellee v. Tammy Lynette DUNKLIN, Defendant-Appellant.
    No. 46,885-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Kenneth P. Haines, Lori C. Graham, Shreveport, LA, for Appellant.
    Susan D. Scott, Shreveport, LA, for Ap-pellee.
    Andrenov Ladonne Dunklin, Sr., In Proper Person.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

11 The defendant, Tammy Dunklin, appeals a judgment designating the plaintiff, Andrenov Dunklin, as the domiciliary parent of the parties’ minor children. The trial court awarded visitation to the defendant, who currently has physical custody of the children while the plaintiff is deployed overseas. For the following reasons, we affirm and remand for the rendering of a joint custody implementation order.

FACTS

Tammy and Andrenov Dunklin were active duty members in the United States Air Force when they married in April 1999. Two children, T.D. and A.D., were born of the marriage. In October 2005, the parties were stationed at Barksdale Air Force Base in Bossier City. In May 2008, Andrenov was deployed to Afghanistan and Tammy took care of the children during the seven months he was away.

In March 2009, the parties and their children traveled to a new assignment at a U.S. Air Force base in Turkey. Shortly after their arrival in Turkey, the parties physically separated. Tammy and the children remained in the house provided by the military and Andrenov moved into the base dormitory. At the time, Andre-nov alleged that Tammy had engaged in an affair with another individual. In April 2009, the parties signed a separation agreement designating Tammy as the custodial parent during the school year and giving physical custody of the children to Andrenov for the summer.

In August 2009, Tammy filed a complaint with the military alleging that An-drenov was inappropriately taking showers with their six-year-old ^daughter, T.D. In October 2009, following an investigation, the Air Force issued a report finding that Andrenov’s conduct did not meet the criteria to constitute child sexual maltreatment. While the family was in Turkey, T.D. began to have problems in school with math, reading and language development. A counselor recommended an Individualized Education Plan (“IEP”) to assist the child. At a school meeting, Andrenov initially refused to consent to these additional educational services, but eventually agreed to a trial period for the child. Tammy extended her tour of duty in Turkey so she would not be reassigned until the children completed the school year. She then requested a new assignment in Germany, where she believed good schools were available for the children. Andrenov de-dined to take the same assignment as Tammy.

In 2010, when Andrenov and the children returned to Turkey from summer vacation, Tammy met them at the airport and demanded the children and their travel documents. After Andrenov refused to provide the documents, Tammy placed the children in her vehicle and then drove in front of his vehicle to prevent him from driving away. Eventually, she was persuaded to leave by a third party. In March 2011, the family left Turkey and returned to this country.

The plaintiff, Andrenov, filed a petition for divorce under LSA-C.C. art. 102, seeking joint custody of the children and spousal support from the defendant, Tammy. After a hearing in February 2010, the parties stipulated to an interim order awarding them alternating weeks of physical custody with the children. In March 2011, the district court entered a “Supplemental |sInterim Judgment” awarding domiciliary custody of A.D. to plaintiff and domiciliary custody of T.D. to defendant. Plaintiff was reassigned to Scott Air Force Base in Illinois and took A.D. with him.

After a trial in June 2011, the trial court issued oral reasons for judgment finding that both parties were equally capable of providing for the emotional and material needs of the children. However, the court expressed concern that the mother’s allegation of sexual abuse by the father, determined by the military to be unfounded, appeared to have been made to gain a legal advantage. The court found that because the mother was stationed overseas, it would be easier for her to travel from the foreign country to the United States for visitation, than for the father to travel to a foreign country. The court determined that awarding the father domiciliary custody was in the best interest of the children. The trial court rendered judgment granting joint custody to the parties and designating the father as the domiciliary parent of the children, subject to visitation by the mother. In addition, the judgment provided that in the event plaintiff was deployed for more than 30 days, the defendant would have physical custody of the minor children during the deployment. The defendant appeals the judgment.

On July 19, 2011, the district court sent notice of the appeal by certified mail to the plaintiffs attorney of record, Darius Henderson, who later filed a motion to withdraw as plaintiffs counsel along with copies of emails from the attorney notifying plaintiff that an appeal had been filed in this case and that a responsive brief was due by September 12, 2011. This court granted the motion to withdraw on August 19, 2011. The defendant |4filed her appellate brief, but plaintiff did not file his brief by the due date. Plaintiff then contacted this court in October 2011, seeking a stay of the proceedings under the Servicemem-bers Civil Relief Act, 50 App. U.S.C.A. Sec. 501, et seq. This court granted a 80-day stay to give the defendant an opportunity to respond. Dunklin v. Dunklin, 46,-885 (La.App.2d Cir.11/8/11). Pursuant to this court’s order, defendant filed a response opposing any further stay. Subsequently, we granted attorney Susan Seott’s motion to enroll as plaintiffs counsel. Dunklin v. Dunklin, 46,885 (La.App.2d Cir.12/2/11). Finding that the statutory stay provision was not applicable in this matter, this court denied plaintiffs request for stay, treated his request as a motion for an extension of time to file a brief and ordered him to file his brief by January 6, 2012. Dunklin v. Dunklin, 46,885 (La.App.2d Cir.12/16/11). Plaintiff timely filed his brief on that date.

DISCUSSION

The defendant contends the trial court erred in designating the plaintiff as the domiciliary parent of the minor children. Defendant argues that the trial court incorrectly placed too much emphasis on her allegation of possible child abuse by the plaintiff and her current military assignment in Germany as reasons to deny her the domiciliary custody of the children.

The paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024; Shivers v. Shivers, 44,596 (La.App.2d Cir.7/1/09), 16 So.3d 500. The court is to consider all relevant factors in ^determining the best interest of the child, including the capacity and disposition of each party to give the child affection, continue the education and provide for the material needs of the child; the length of time the child has lived in a stable environment and the permanence as a family unit of the existing or proposed custodial home; the mental and physical health and moral fitness of each party; the -willingness and ability of each party to facilitate and encourage a close relationship between the child and the other party; and the responsibility for the care of the child previously exercised by each party. LSA-C.C. art. 134.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSA-C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra; Robert v. Robert, 44,528 (La.App.2d Cir.8/19/09), 17 So.3d 1050, writ denied, 2009-2036 (La.10/7/09), 19 So.3d 1. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Semmes, supra.

The trial court has vast discretion in deciding matters of child custody and visitation. Semmes, supra; Slaughter v. Slaughter, 44,056 (La.App.2d Cir.12/30/08), 1 So.3d 788; Gaskin v. Henry, 36,714 (La.App.2d Cir.10/23/02), 830 So.2d 471. Therefore, the trial court’s determination will not be disturbed on appeal, absent a clear showing of an abuse of discretion. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Semmes, supra; Slaughter, supra. As long as the trial court’s factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may | finot reverse even though convinced it would have weighed the evidence differently if acting as the trier of fact. Semmes, supra.

In the present case, Sandi Davis testified that she was a licensed professional counselor appointed by the court to interview the parties’ children. Davis stated that she interviewed the children in July 2010, when T.D. was seven years old and A.D. was age three. Davis testified that the children seemed happy, but that T.D. expressed sadness about her parents’ separation. Davis did not spend much time with A.D. because of his age. Davis testified that T.D. said no one had touched the “private areas” of her body, that she took baths by herself and that her parents washed her back because she could not reach. Davis asked T.D. if anyone outside the family ever spent the night at either parent’s home and T.D. said that her mother’s boyfriend once stayed with them in a hotel. Davis opined that T.D. did not seem coached to give particular answers, but the girl appeared hesitant to talk about the mother’s boyfriend.

The plaintiff, Andrenov Dunklin, testified that he was.a member of the U.S. Air Force assigned to Scott Air Force Base in Illinois. Plaintiff stated that during the marriage, he helped care for the children by cooking meals and driving them to school and the park. Plaintiff testified that when he was deployed to Afghanistan from May to December 2008, he kept in contact with his family by telephone or the Internet with a Skype account. He acknowledged that defendant had cared for the children during his absence. Plaintiff stated that after the family moved to Turkey in March 2009, he became convinced that his wife was involved with another man 17and the parties separated. Plaintiff testified that after moving into a dormitory on the base, he continued to spend time with his children every afternoon. He stated that he was reprimanded by military authorities for placing a recording device in the defendant’s house without her knowledge. Plaintiff testified that he exercised physical custody of the children on alternating weeks as provided in the court’s interim order. He stated that in August 2009, he was informed by military authorities that defendant had accused him of taking showers with his daughter and possibly touching her inappropriately. Plaintiff testified that after an investigation by the Air Force, he was notified that a review board had determined that his conduct did not meet the criteria for child sexual maltreatment.

In addition, plaintiff stated that in February 2010, he and defendant were informed by T.D.’s school that she was having trouble with reading and math. Plaintiff testified that initially he did not agree to the IEP because he did not want T.D. to be labeled- as a “special needs” student. However, plaintiff stated that he agreed to the IEP process for a trial period and that T.D.’s school performance had improved during that time. Plaintiff testified that after defendant did not allow him to visit the children on Thanksgiving Day, he refused to let her visit the children on Christmas Day. He acknowledged that the children suffered as a re-suit of the parents’ failure to comply with the court’s order. Plaintiff described an incident that occurred in January 2011, during the parties’ trip to the United States for a court appearance. He stated that after their arrival at the airport in Baltimore, defendant said she was taking the children for the evening because she had | sbooked a flight with them early the next morning, even though plaintiffs custodial period did not end until the following afternoon. Plaintiff testified that after he refused to let defendant take the children, she began screaming at him, the children began crying and airport security responded to the scene. Plaintiff stated that he allowed the children to leave on the flight with defendant the next morning.

The defendant, Tammy Dunklin, testified that she was a member of the United States Air Force stationed in Germany. Defendant stated that she was very involved with the education of her children, that she attended all of their school events and that she had extended her tour of duty in Turkey so that T.D. could finish the school year. Defendant testified that in 2009, T.D.’s teacher said the child was having trouble in school and testing showed that T.D. was not performing at her grade level in reading and math. Defendant stated that she supported the school’s recommendation that an IEP would help T.D. with learning, but that plaintiff resisted at first. Under the IEP, T.D.’s math and reading scores had improved. Defendant asserted that plaintiff had not been very involved with the children’s education and that he did not know the names of them teachers. Defendant testified that she had been the primary caretaker of the children during the marriage; she was responsible for feeding and clothing the children and driving them to their activities.

Regarding the incident at the airport in Baltimore, defendant stated that the parties had agreed that she would pay for the flight to the United States, that she had made flight reservations for the children for Friday Rmorning and that it would have been easier for her to take the children Thursday evening, but plaintiff refused. Defendant testified that her understanding of the court’s interim order was that the exchange of children would occur no later than 5:30 p.m. each Friday, but that plaintiff was very restrictive about the time and that she could not get the children on her Friday until 5:30 p.m. at the earliest. Defendant stated that she was very worried about A.D. after plaintiff took him to the United States, because she did not have plaintiffs new phone number and she was unable to talk with her son for more than two weeks.

In her appellate brief, the defendant argues that in denying her domiciliary custody, the trial court placed too much emphasis on her allegation that plaintiff abused their daughter and on her assignment to an air base in Germany. Although the trial court found the parties to be on an equal footing with regard to most of the applicable Article 134 factors, the trial court implicitly found that defendant’s unfounded allegation of child abuse by plaintiff indicated defendant’s unwillingness to encourage a close relationship between the children and plaintiff. Such a finding is within the court’s discretion. In considering the defendant’s duty in Germany among the other custody factors, the court could have reasonably found that residing in the United States with their father was in the best interest of the children because of the closer proximity to their extended family.

In addition, defendant contends the trial court should have given more weight to her role as primary caretaker of the children. However, the record shows that under the interim order of March 2010, each parent |inexercised physical custody of the minor children on alternate weeks. Then, in March 2011, a supplemental judgment designated the plaintiff as domiciliary parent of A.D. and the defendant as domiciliary parent of T.D. Thus, the trial court was able to weigh the evidence that the parties had shared physical custody of their children on a roughly equal basis for more than one year prior to trial.

The trial court heard the contradictory testimony and assessed the credibility of the parties. After reviewing the entire record, we cannot say the trial court abused its broad discretion in weighing the custody factors of Article 134. Consequently, the record supports the trial court’s finding that the designation of plaintiff as domiciliary parent is in the best interest of the minor children. Although we are concerned about the possible disruption to the children’s routine if the plaintiff is again deployed into combat, the custody judgment provides for that circumstance and the defendant can seek modification if the situation becomes deleterious to the children.

We note that LSA-R.S. 9:335(A)(1) provides that absent the showing of good cause, the trial court must render a joint custody implementation order when, as here, joint custody has been decreed. The implementation order shall allocate the legal authority of the parents and the time periods during which each parent shall have physical custody of the children to assure continuing contact with both parents. LSA-R.S. 9:335(A)(2). Here, the record does not contain the requisite implementation order. Accordingly, we shall remand this case to the trial court to establish a joint custody implementation order.

I n CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. This matter is remanded to the district court for the purpose of rendering a joint custody implementation order. Costs of this appeal are assessed to the appellant, Tammy Dunklin.

AFFIRMED AND REMANDED.