author: PICKETT, Judge.

text:
    STATE of Louisiana v. Tyrone MITCHELL.
    No. 13-426.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Rehearing Denied Dec. 11, 2013.

      Michael Harson, District Attorney, Fifteenth Judicial District, F. Stanton Hardee, III, Assistant District Attorney, Abbeville, LA, for Appellee State of Louisiana.
    Teresa Culpepper Carroll, Bobby L. Culpepper & Assoc., Jonesboro, LA, for Defendant-Appellant Tyrone Mitchell.
    Tyrone Mitchell, Angola, LA, pro se.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

FACTS

|T The defendant, Tyrone Mitchell, allegedly sold two rocks of crack cocaine to an undercover police officer during a weekend long undercover operation. He was charged in a bill of information filed on January 4, 2011, with distribution of cocaine, a violation of La.R.S.' 40:967. The defendant was arraigned and entered a plea of not guilty on February 16, 2012. Trial by jury commenced on July 17, 2012, and the defendant was found guilty the following day.

A bill of information charging the defendant as a habitual offender was filed on July 24, 2012, and amended on August 1, 2012. The defendant was arraigned on August 16, 2012, and chose to remain silent. He was adjudicated a third felony offender on December 20, 2012, and was sentenced to life imprisonment, without benefit of probation, parole, or suspension of sentence. A motion for appeal was subsequently filed and granted.

ASSIGNMENTS OF ERROR

The defendant is now before this court asserting the following assignments of error:

1. The jury erred in convicting him of distribution of cocaine.
2. The trial court erred in failing to grant a mistrial or at least give a contemporaneous instruction due to inappropriate questioning by the prosecutor of the prospective jury pool.
3. The trial court erred in allowing the state to use a stopwatch demonstration during rebuttal closing argument.
4. The trial court erred in failing to grant a mistrial after the state made inappropriate statements during its rebuttal closing argument.
|¾5. The trial court erred in failing to instruct the jury to disregard inappropriate statements made by the state during its rebuttal closing statement.
6. The trial court erred in denying his request for a judge trial.

In a pro se brief, the defendant contends he was denied effective assistance of counsel when trial counsel failed to file pre-trial motions to suppress identification and evidence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

The record does not indicate that the trial court advised the defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the defendant of the provisions of article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 08-1762 (La.2/10/06), 924 So.2d 163.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant contends the jury erred, as a matter of law, in convicting him of distribution of cocaine based on insufficient evidence to support the conviction.

The supreme court explained an appellate court’s function in reviewing sufficiency of the evidence claims in State v. Spears, 05-964, p. 2 (La.4/4/06), 929 So.2d 1219, 1222:

[aWhen reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676, 678 (La.1984). That standard dictates that to affirm the conviction the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved all elements of the crime beyond a reasonable doubt. State v. Johnson, 03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998; Captville, 448 So.2d at 678.

Agent Jackie Boddie testified that on October 9, 2010, she was working undercover for the Vermilion Parish Sheriffs Office. At approximately 8:45 p.m. on the date in question, Agent Boddie and Deputy Debbie Picou were flagged down by a man outside the Tiki Club. The man, who was wearing an orange shirt, orange shorts, and an orange headband, asked if they needed anything. Agent Boddie told the man she was looking for “forty hard,” which meant forty dollars’ worth of crack cocaine. Agent Boddie said the man, who was about one to two feet away at that time, told her to wait there and went back inside the club. Agent Boddie testified their interaction lasted approximately fifteen to twenty seconds.

Agent Boddie testified that another man subsequently approached the car and asked if Agent Boddie needed anything. Agent Boddie indicated she did not. The man, however, said he had twenty with him, and Agent Boddie then purchased drugs from him. Agent Boddie testified that she placed the drugs in a pocket in the door of the car.

The man who went back inside the club eventually returned, and Agent Boddie purchased two rocks of crack from him. Agent Boddie indicated the man got close enough to her to hand her the crack, the transaction took approximately forty-five seconds to a minute, and she focused on the man’s features for future identification purposes. Agent Boddie further testified that it was “pretty dark” |4that night, and the light inside the car was not on. She did not, however, see anyone else dressed in all orange. Agent Boddie subsequently gave Agent Travin Moore a description of the man. Agent Boddie testified that she took the two rocks, placed them in an envelope, and gave the envelope to Agent Moore approximately ten minutes later.

Agent Boddie testified the chain of custody indicated she gave the envelope to Agent Moore on October 9, 2010. When shown the rocks of crack and asked whether they appeared to be those sold to her by the man in orange, Agent Boddie stated: “As far as I can tell, yes.” She was subsequently asked if she was absolutely certain that the crack cocaine shown to her in court was what the man sold to her and she transferred Agent Moore. Agent Bod-die responded, “Yes.” Agent Boddie made an in-court identification of the defendant as the person who sold her crack on October 9, 2010. She then indicated she was absolutely certain he was the person who sold her the crack.

Agent Boddie was presented with a photographic lineup two to four weeks after the transaction. She selected photograph five as the person who sold crack to her. Agent Boddie testified that she was sure the person in photograph five sold her crack, and the defendant was the person shown in photograph five.

Deputy Picou was working for the Vermilion Parish Sheriffs Office on October 9, 2010, as an undercover agent. Deputy Picou was with Agent Boddie outside the Tiki Club at 8:45 p.m. when a man approached the vehicle and asked if they were looking for “some hard,” which meant cocaine. Deputy Picou testified the man was dressed in orange. She then made an in-court identification of the defendant as the person who approached her and Agent Boddie and indicated she was positive it was the defendant she saw. Deputy Picou testified the defendant |fispoke with Agent Boddie for approximately ten to twenty seconds. During that time, Deputy Picou had a clear view of the defendant’s face. The defendant then left the vehicle and returned to the club.

While Deputy Picou and Agent Boddie were waiting for the defendant to return, a black male approached the car and sold drugs to Agent Boddie. The defendant subsequently returned and put two white rocks of what Deputy Picou believed were crack cocaine in Agent Boddie’s hand, and Agent Boddie gave him forty dollars. Deputy Picou testified that the transaction took five to ten seconds. Deputy Picou testified that it was dark outside, and the vehicle’s interior light was on during the transaction.

Deputy Picou was further questioned about the transactions that occurred that night as follows:

Q Now, before that evening, had you ever seen the individual who made the first sale? Had you ever seen that person before that evening?
A On the first buy that we made?
Q Uh-huh (affirmative response).
A Yes, ma’am; I did.
Q And that’s the same one you’re talking about now, right? Or are you talking about a different one?
A The one we bought the first dope from, the person that came to the truck first?
Q Uh-huh (affirmative response).
A I had seen him before; yes, ma’am.
Q And the second person who came up, did he sell to you or did he sell to Ms. Boddie?
A He sold to Ms. Jackie.
|fiQ And what did she do with the item that she got from that second person?
A She held onto it in her hand until we drove off.
Q That’s from the second person?
A Yes, ma’am.
Q And what did she do with the items that she bought from the first person?
A She placed it in a brown envelope.
Q And are you sure of those two things?
A Yes, ma’am.

Deputy Picou subsequently agreed that she saw Agent Boddie place the crack the defendant sold to her in an envelope. Additionally, the crack sold by the defendant was kept separate from the cocaine sold by the second individual. Deputy Picou testified that Agent Boddie spoke to Agent Moore and Sergeant Jerath Bessard ten to fifteen minutes later, and Agent Boddie gave the envelope to Agent Moore.

Agent Moore, an employee of the Vermilion Parish Sheriffs Office, testified that the defendant was his third or fourth cousin. Agent Moore prepared a report regarding the instant case. On the date in question, Agent Moore was in a rental vehicle in the area surrounding the club. Agent Moore confirmed that Agent Boddie bought drugs from two individuals on that date, as Agent Moore could hear the transactions over a cell phone. Agent Boddie described the person from whom she bought forty dollars’ worth of crack as wearing orange shorts, an orange shirt, and an orange headband. Agent Moore, along with others, subsequently passed through the area and could not find the defendant. When passing the club a second time, Sergeant Bessard saw someone walking out of the club and identified him as the defendant. Agent Moore then identified the defendant as the person he saw ^walking out of the club on the night in question. Agent Moore did not see any other individuals wearing all orange on October 9, 2010, outside the Tiki Club.

Agent Moore testified that Agent Bod-die gave him the envelope containing the crack cocaine she purchased. He then placed the crack in an evidence bag, which was separate from the cocaine sold to Agent Boddie by the second man that approached her. Agent Moore identified the crack shown to him as that he received from Agent Boddie, indicating he was certain about the identification.

Two to four weeks after the transaction, Agent Moore showed Agent Boddie a photographic lineup. Agent Moore testified that Agent Boddie selected photograph number five, which was a photograph of the defendant, as the person she bought drugs from.

Agent Moore testified that he wrote “Case Number VTF-09-268” on the report regarding the instant case, which was the incorrect number. Agent Moore described the mistake as human error and gave the correct case number as 2010-268. The charge was listed as distribution of crack in the report, and that was correct. Agent Moore was asked why he listed the evidence in his report as a handmade pipe, green vegetable matter, and a hand rolled cigarette and replied, “Once again, it was human mistake. We worked so many cases that night — that weekend, probably fatigue set in at the time I tagged it, did the report. Just a mistake.” Agent Moore worked fifteen cases that weekend but testified he was one hundred percent certain the instant case involved State’s Exhibit Number 1, the crack cocaine sold by the defendant to Agent Boddie on October 9, 2010.

Agent Moore testified the defendant was not arrested on the night in question, as police were running an undercover operation all weekend and could not risk the safety of the purchasing agents.

IsSergeant Bessard, an employee of the Vermilion Parish Sheriffs Office, testified that he was working on October 9, 2010. Approximately two to three minutes after Agent Boddie gave a description of the man who sold her crack, Sergeant Bessard saw the defendant outside the Tiki Club dressed in orange. Sergeant Bessard testified that he did not see anyone else wearing all orange that evening. He then testified he was absolutely certain the defendant was the person he saw outside the Tiki Club that night.

Officer Reginald Reed, an employee of the Vermilion Parish Sheriffs Office, testified that he was the evidence custodian. He testified that the collected evidence was placed in a vault in his office, and only he and Lieutenant Jo Ann Matthieu had access to the evidence. Officer Reed received suspected crack from Agent Moore on October 29, 2010. That evidence was logged as 10-609 and eventually submitted to the crime lab on November 5, 2010.

Amanda Hebert, an employee of the Acadiana Crime Lab, was accepted as an expert in forensic chemistry. Hebert testified that the two white rocks submitted by police were determined to be crack having a weight of 0.28 grams.

Identification of the defendant

The defendant contends the state failed to prove beyond a reasonable doubt that he was the person that sold crack to police on October 9, 2010. The defendant argues that this court must examine the reliability of the identification according to the factors set out in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which include the following: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of his or her prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the length of time between the crime and the confrontation. | aThe defendant contends a victim’s or witness’s testimony alone is sufficient to support a verdict if the Manson factors are satisfied. In support of this claim, the defendant cites State v. Paul, 11-252 (La.App. 4 Cir. 4/18/12), 90 So.3d 1191, writ denied, 12-1103 (La.11/2/12), 99 So.3d 662.

The defendant asserts that Agent Bod-die’s description was not detailed, as she merely stated the suspect was a black male dressed in orange shorts, an orange shirt, and an orange headband. The defendant argues that Agent Boddie’s interaction with the suspect lasted no more than two minutes, it was “pretty dark” at the time of the transaction, she viewed the lineup two to four weeks after the transaction, and, although Agent Boddie testified she focused on the suspect’s features, she stated the light in her vehicle was not on.

The defendant asserts that Deputy Pi-cou estimated the transaction lasted less than a minute. The defendant notes that Deputy Picou made an in-court identification of him but testified the light in the vehicle was on during the transaction, which was contrary to Agent Boddie’s testimony. The defendant avers Deputy Pi-cou testified there were numerous buys that night.

The defendant then points out that no video, audio, or photographs were taken during the transaction, and no photographs of the money used by police during the transaction were taken.

In State v. Thomas, 10-792, pp. 7-8 (La.App. 3 Cir. 2/2/11), 54 So.3d 1268, 1272-73, writ denied, 11-473 (La.9/23/11), 69 So.3d 1157, this court discussed jurisprudence regarding the sufficiency of the evidence concerning identification as follows:

In State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553, the defendant asserted his convictions were based on insufficient | ^evidence, particularly the witness’ identification of him as the person who committed the robberies. He questioned the witness’ identification because she allegedly told her son that the police identified the robber. The defendant asserted that this court had to determine whether there was a suggestive identification and if it presented a substantial likelihood of mis-identification.
This court held:
“A defendant who does not file a motion to suppress an identification, and who fails to contemporaneously object to the admission of the identification testimony at trial, fails to preserve the issue of its admissibility as an error on appeal.” State v. Johnson, 95-711, pp. 3-4 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, 769, writ denied, 96-0082 (La.3/29/96), 670 So.2d 1236. See also La.Code Crim.P. arts. 703(F) and 841(A). The record reveals that the defendant did not file a pre-trial motion to suppress the witnesses’ identifications or object to its admissibility at trial. Consequently, as the defendant failed to preserve this issue, we do not review it on appeal.

Id. at 440.

The State relies on Boyance and further contends that while a motion to suppress would not have been possible because of the in-court identification, Defendant did not contemporaneously object to it at trial. Thus, the error was not preserved for review.
In State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999), the defendant contended that the court should not have admitted the testimony of the store manager who survived a shooting because her recollection of the crime and her identification of one of the assailants occurred only after she had been hypnotized by the police. At trial, there was no objection to the testimony or the identification. The supreme court found the defendant waived any claim based on the erroneous admission of this evidence.
Here, we find that Defendant waived review of the issue of improper in-court identification because he failed to contemporaneously object at trial. Further, even if Defendant had not waived his objection, the evidence in the record was sufficient to support the finding that he was the man who shot Perioux.

See also State v. Cyriak, 10-591 (La.App. 3 Cir. 12/8/10), 52 So.3d 324; State v. Landry, 03-1632 (La.App. 4 Cir. 5/19/04), 876 So.2d 146, writ denied, 04-1586 (La.11/15/04), 887 So.2d 474.

The defendant did not file a motion to suppress the identification by Agent Boddie or object to any identification testimony at trial. Thus, the defendant waived review of this assignment of error. However, even if the defendant had not waived review of his claim, the evidence in the record is sufficient to support the finding that the defendant sold crack to Agent Boddie.

As a general matter, 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 misidentifieation. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one witness’s positive identification is sufficient to support the conviction); State v. Ford, 28,724 (La.App. 2d Cir. 10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

State v. Neal, 00-674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Two to four weeks after the transaction, Agent Boddie selected the defendant from a photographic lineup. She additionally made an in-court identification of the defendant as the person who sold her crack on October 9, 2010. Deputy Picou also made an in-court identification of the defendant as the person who sold crack to Agent Boddie. After the transaction, Agent Moore saw the defendant walking out of the Tiki Club. Sergeant Bessard testified that he heard the description given by Agent Boddie, and he saw the defendant walking out of the Tiki Club dressed in the same manner as that described by Agent Boddie. The jury heard this testimony and chose to believe the defendant was thejjgperson who sold crack to Agent Boddie. We will not second guess that credibility determination. Viewing the evidence in the light most favorable to the state, the state negated any possibility of misidentifieation in this matter.

Chain of custody of physical evidence

The defendant contends the evidence regarding the chain of custody of the alleged drugs purchased was sketchy at best. The defendant alleges that Agent Boddie testified the crack shown to her appeared to be the crack she purchased from the defendant. The defendant asserts that Agent Boddie made two drug purchases during the same time, and the three rocks of crack were not packaged. The defendant then asserts there was a major issue with the reasonableness of the jury verdict, as there was a problematic chain of custody and errors in the police report. The defendant notes that Agent Moore did not turn the crack in to the evidence custodian until approximately three weeks after the transaction, and he incorrectly listed the evidence on his report as a homemade pipe containing a green vegetable substance and a rolled cigarette containing a green vegetable substance and wrote the wrong case number on the report. The defendant then lists the following chronological breakdown of the chain of custody:

10/9/10 — Undercover Agent Jackie Bod-die purchased three rocks of crack cocaine outside the Tiki club in Abbeville, Louisiana. The rock from the transaction that occurred during the middle of the one with orange suspect was allegedly placed in the car door pocket when the orange suspect approached with his two rocks according to Boddie. However, Picou testified that she was sure that Boddie held the rock from the second suspect in her hand until they drove off and then put the rocks from the orange suspect in a brown envelope. Boddie left area, put the rocks of cocaine from defendant into an envelope and gave to Sgt. Moore approximately ten to fifteen minutes later. Boddie admitted that the handwriting on the envelope was not hers. Importantly, neither Boddie or Picou testify as to what happened with the other rock from the second suspect. Sgt. Moore testified that he transferred the envelope with the two rocks of cocaine to an evidence |13bag which he sealed and signed and kept separate from other drugs but doesn’t say how. 10/11/10 — Sgt. Moore testified that he actually didn’t seal the drugs on the night of the transaction due to working eighteen hour days throughout the weekend but was locked in his office in a “secure place” until sealed two days later and locked in his desk at his office with ten to twelve other evidence items. Sgt. Moore claimed to have only key to the desk used.
10/29/10 — Almost three weeks later, Sgt. Moore transfers drugs to the Vermilion Parish Sheriffs Office evidence custodian, Sgt. Reed. Sgt. Reed testified that he maintains a vault in his office to hold evidence until used in court or taken to crime lab and that only himself and Lt. Jo Ann Matthieu, chief of detectives, have access to the vault which is an old bank vault with a combination lock.
11/5/10 — Another week later, Sgt. Reed takes evidence to crime lab where it is signed for by Wynette Haycock, the crime lab evidence custodian.
11/5/10-12/15/10 — Rocks of alleged crack cocaine analyzed by crime lab. Amanda Hebert testified that she recognized the signature of Ms. Haycock on the evidence envelope and that the evidence would have been held in the crime lab vault until tested.

(Citations to the record omitted.)

In State v. Todd, 03-1230 (La.App. 3 Cir. 2/4/04), 866 So.2d 1040, writ denied, 04-588 (La.7/2/04), 877 So.2d 143, the defendant argued the evidence was insufficient to support his conviction for distribution of a controlled dangerous substance because the trial court allowed the admission of drugs and a video tape of the drug transaction even though the chain of custody of the items was not properly established prior to their admission. This court found the defendant did not object to the admission of the drugs or the video tape. Therefore, this court did not address the issue of whether the trial court improperly admitted the items into evidence.

In State v. Guillory, 95-383 (La.App. 3 Cir. 1/31/96), 670 So.2d 301, the defendant argued the trial court erred in allowing the introduction of bullets for [14several reasons, including his claim that there was a break in the chain of custody. This court found there was no contemporaneous objection to the admission of the bullets; therefore, the issue could not be raised on appeal.

There was no objection by defense counsel when the crack sold to Agent Bod-die was admitted into evidence as State’s Exhibit Number 1. Therefore, the defendant waived review of this claim. For these reasons, the defendant’s first assignment of error lacks merit.

QUESTIONING DURING VOIR DIRE

In his second assignment of error, the defendant contends the trial court erred, as a matter of law, in failing to grant a mistrial or at least give a contemporaneous instruction due to inappropriate questioning by the prosecutor of the prospective jury pool.

[T]he purpose of voir dire is to discover grounds for challenges for causé and to secure information for the intelligent exercise of peremptory challenges. State v. Stacy, 96-0221 (La.10/15/96), 680 So.2d 1175, 1178. A party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or prejudgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916 State v. Williams, 230 La. 1059, 89 So.2d 898, 905 (1956). See also, State v. Square, 257 La. 743, 244 So.2d 200, 226 (1971), judgment vacated in part, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), mandate conformed to, 263 La. 291, 268 So.2d 229 (1972) (“Voir dire examination is designed to test the competence and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial.”). However, voir dire examination which goes to the determination of the qualifications of prospective jurors by testing their competency and impartiality is proper. State v. Stacy, supra, 680 So.2d at 1178; State v. Hall, 616 So.2d 664, 668 (La.1993). This Court in State v. St. Amant, 413 So.2d 1312, 1319 (La.1981) held that “because of the difficulty of the concepts and values which must be understood and applied by each juror in his deliberations^ counsel for each side is entitled to an opportunity to assess the personality and comprehension of each prospect as a unique human being before accepting him as a juror or challenging him for cause or peremptorily.” See also State v. Dixon, 365 So.2d 1310 (La.1978). The proper scope of examination lies within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Stacy, supra, 680 So.2d at 1178; State v. Hall, supra, 616 So.2d at 668.

State v. Tilley, 99-569, pp. 14-15 (La.7/6/00), 767 So.2d 6, 19, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

During voir dire in the instant case, the state said the following:

Under the statute, the State is not required' to prove, you know, on — like CSI, you have DNA, fingerprints, video. The statute doesn’t say the State has to prove by DNA, fingerprints or video. That statute says the State has to prove the defendant intentionally distributed cocaine. And that’s what the State has to prove.
If the State proves all the elements of the crime — if the State proves all the elements beyond a reasonable doubt, but it’s without DNA, fingerprints or video, through eyewitness testimony of officers, how would you vote, Ms. Hebert?

This question was answered by thirteen prospective jurors. The state then asked: “Now, once you hear the witnesses, this is — you hear the witnesses and if you believe them, would you be able to return a guilty verdict if you believe the state had proved its case?” Defense counsel objected and, in a side bar conference, asked for a contemporaneous instruction because he felt the state gave the wrong instruction regarding what the jury had to do in order to find the defendant guilty. Defense counsel argued the State was misleading the jury into believing it could return a guilty verdict “when they [were] not necessarily finding somebody guilty beyond a reasonable doubt.” Defense counsel then asserted a contemporaneous instruction regarding what the law actually was should be given. The state asserted it was asking the prospective jurors if they could follow the law. The trial court informed the state that it could not ask how the prospective jurors would vote given any certain set of facts. The state subsequently argued it was asking the | ^prospective jurors whether they could convict if the state proved its case beyond a reasonable doubt based on eyewitness testimony. The trial court stated it believed three things the state said were probably impermissible, but an instruction to the jury was not required. The state subsequently asked the trial court if the trial court would permit it to ask the prospective jurors: “Could you convict if the state proves the case beyond a reasonable doubt all the elements based on eyewitness testimony?” Defense counsel objected, arguing the question called for a hypothetical, and asked for a contemporaneous instruction. The trial court stated it would not call the question a hypothetical. Defense counsel then stated it was up to the jurors to evaluate the testimony of each witness. Defense counsel subsequently asked the trial court to instruct the prospective jurors that “they are the judges of the law and of the facts under the law as given by the Court.” The trial court denied the request for a contemporaneous instruction. Defense counsel then moved for a mistrial, which was denied. The trial court subsequently stated it would allow the state to ask the prospective jurors if they would convict based on eyewitness testimony, and defense counsel objected.

The defendant contends the state was focused on eyewitness testimony only and trying to get the prospective jurors to commit to vote guilty based solely on such testimony, which was improper, and a mistrial should have been granted.

In State v. Schouest, 351 So.2d 462 (La.1977), the prosecutor asked prospective jurors: “ ‘After you sit through this trial and after you listen to all of the evidence, and if after that we convince you beyond a reasonable doubt that Nolan Schouest is guilty, would you vote guilty in this case?’ ” The defendant’s objection to the question was based upon his contention that the question sought a commitment and a promise from the jurors. The prosecutor argued the question [ 17was a correct statement of the law, which presented a legitimate inquiry into the jurors’ qualifications. The prosecutor further argued that he could ascertain, during voir dire, whether the prospective jurors would obey their solemn duty under the law to convict when they were convinced beyond a reasonable doubt of the defendant’s guilty. The supreme court cited State v. Young, 337 So.2d 1196 (La.1976), and found the defendant’s claim lacked merit.

In Young, the prosecutor, during his closing argument, made reference to a “promise” of the jurors during voir dire examination that they would return a verdict of guilty if such a verdict was warranted by the facts. The supreme court held that “mere use of the word ‘promise’ by the prosecutor in reminding the jury of its sworn duty was not prejudicial to the accused.” Id. at 1200.

As in Schouest, 351 So.2d 462, we find that the state’s questions were not prohibited but were an attempt by the state to determine whether the prospective jurors could follow jurisprudence that a positive identification by a single witness is sufficient to support a conviction. It was an attempt to determine if the prospective jurors could follow the law. For these reasons, we find this assignment of error lacks merit.

USE OF STOPWATCH DEMONSTRATION

In his third assignment of error, the defendant contends the trial court erred, as a matter of law, in allowing the state to use a stopwatch demonstration during its rebuttal closing argument.

During its rebuttal closing argument, the state noted that identity was an issue in the instant case and stated that Agent Boddie testified the defendant was a foot from her for fifteen to twenty seconds. The state then said it had a stopwatch which it was starting. Defense counsel objected and told the trial court the state | iswas “not to demonstrate,” the demonstration was to be done with a witness, not in argument. The trial court stated it did not think the “stopwatch issue” was objectionable. The trial court subsequently stated: “I think we can do it.”

Louisiana Code of Criminal Procedure Article 774 provides, in pertinent part: “The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”

In State v. Hendricks, 38,945 (La.App. 2 Cir. 9/22/04), 882 So.2d 1212, writ denied, 04-2833 (La.3/18/05), 896 So.2d 1000, the defendant argued the state improperly introduced new evidence during closing argument in violation of La.Code Crim.P. art. 774. The defendant argued that the state’s use of a clock to demonstrate the passage of one minute, the state’s theory of the estimated time period necessary for death by strangulation, constituted the improper introduction of demonstrative evidence during its closing argument.

The second circuit found the state’s use of a clock to display the lapse of one minute was not new evidence, as the defense cross-examined an expert witness with regard to whether death by strangulation could result in one minute or less, and the coroner responded that it was possible. A review of the record revealed that the state incorporated the issue into its closing argument, adding its description of the victim’s death during the passing minute. Thus, the state’s use of the clock to illustrate the lapse of one minute was within the scope of the evidence previously admitted during the trial.

Agent Boddie testified that her initial interaction with the defendant lasted from fifteen to twenty seconds, and her ability to identify the defendant was at issue at trial. We agree with the second circuit ruling in Hendricks. The state’s |1fluse of the stopwatch was not improper. Accordingly, the defendant’s third assignment of error lacks merit.

STATEMENTS DURING REBUTTAL CLOSING ARGUMENTS

In his fourth assignment of error, the defendant contends the trial court erred, as a matter of law, in failing to grant a mistrial after the prosecutor made inappropriate statements during its rebuttal closing argument. In his fifth assignment of error, the defendant contends the trial court erred, as a matter of law, in failing to instruct the jury to disregard inappropriate statements made by the state during its rebuttal closing argument.

LSA-C.Cr.P. art. 774 requires that closing arguments at trial be confined “to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” State v. Smallwood, 09-86, p. 15 (La.App. 5 Cir. 7/28/09), 20 So.3d 479, 489; State v. Robertson, 08-297, p. 12 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, writ denied, 08-2962 (La.10/9/09), 18 So.3d 1279. Closing arguments shall not appeal to prejudice. Robertson, 08-297 at 12, 995 So.2d at 659 (citing LSA-C.Cr.P. art. 774). A prosecutor has considerable latitude in making closing arguments. State v. Jackson, 04-293, p. 5 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094. However, prosecutors may not resort to personal experience or turn their arguments into a plebiscite on crime. Robertson, 08-297 at 12-13, 995 So.2d at 659-60 (citing State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998)).
The trial judge has broad discretion in controlling the scope of closing arguments. Robertson, 08-297 at 13, 995 So.2d at 660 (citing State v. Taylor, 07-93, p. 31 (La.App. 5 Cir. 11/27/07), 973 So.2d 83, 103, writ denied, 07-2454 (La.5/9/08), 980 So.2d 688). A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Id. (citing Jackson, 04-293 at 5-6, 880 So.2d [69] at 73). In making its determination, the appellate court should give credit to the good sense and fair-mindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence. Id.
12(iLSA-C.Cr.P. arts. 770 and 771 govern improper comments made during closing arguments and authorize the trial court to correct a prosecutor’s prejudicial remarks by ordering a mistrial or admonishing the jury, at the defendant’s request. Smallwood, 09-86 at 16, 20 So.3d at 489-90. LSA-C.Cr.P. art. 770 provides:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.

LSA-C.Cr.P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
1 g| A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. Smallwood, 09-86 at 16-17, 20 So.3d at 490 (citing State v. Lagarde, 07-123, pp. 10-11 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684). Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. Id. In addition, assuming the prosecutor’s argument was improper, reversal is not required when such error was limited and did not show significant impact on the outcome of the case. State v. Huckabay, 00-1082, p. 29 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1110, writ denied, 02-0703 (La.11/1/02), 828 So.2d 564; State v. Francis, 95-194, pp. 12-14 (La.App. 5 Cir. 11/28/95), 665 So.2d 596, 604.

State v. Foster, 09-837, pp. 13-15 (La.App. 5 Cir. 6/29/10), 44 So.3d 733, 741-43, writ denied, 01-1775 (La.4/25/11), 62 So.3d 84.

In the instant case, the state made the following comments during its rebuttal closing argument:

These officers here, in the courtroom and the ones testifying, you know, they risk their lives everyday [sic] for us. They go undercover in doing roles. They’re not going to make up something, okay. They’re not going to make up something. They do their duty and when they see a crime committed, they have to act on it. That’s what was done in this case.
The defendant does not get rewarded because he did not commit a crime on video because that’s not the law in Louisiana. That’s not what the statute says. Most of you own your own homes and drugs in areas cause property values to drop.

Defense counsel objected at that time, and the objection was sustained. The state subsequently commented: “Ladies and gentlemen, hold him accountable. Bring back a verdict truth dictates and justice demands. Protect neighborhoods and find him guilty.” Defense counsel then moved for a mistrial, arguing that his prior objection was sustained and that the state’s argument regarding protecting neighborhoods was prosecutorial misconduct. The trial court found the state’s | ^comments were improper but would not declare a mistrial, choosing instead to instruct the jury to disregard the state’s comments.

The trial court subsequently made the following remarks to the jury:

Ladies and gentlemen, the last remarks made by Mr. Hardee, the Assistant DA, about home values in high crime neighborhoods is to be disregarded by you, please. That is not the proper subject of any kind of argument in a criminal case. So please put it out of your mind. Can all of you do that?

In its final instructions to the jury, the trial court stated: “You must consider only evidence which was admitted during trial. You may not consider evidence which you were instructed to disregard or to which an objection was sustained.” The trial court further instructed the jury as follows:

The statements and arguments made by the attorneys are not evidence. In the opening statements, the attorneys were permitted to tell you the facts they expected to be proven. In closing arguments, the attorneys were permitted to present for your consideration their contentions regarding what the evidence has shown or not shown and what con-elusions they think may be drawn from the evidence.
The opening statements and the closing statements are not to be considered as evidence.
As jurors, you are not to be influenced by sympathy, passion, prejudice or public opinion. You are expected to reach a just verdict.

The defendant contends the state’s remarks were clearly an overt reference to the consequences to society should he be acquitted. The defendant further contends that a mistrial was warranted in the instant matter particularly when one considers the questionable nature of the identification of him, the errors in the police report, and the problematic chain of custody. In support of his argument, the defendant cites State v. Kaufman, 304 So.2d 300 (La.1974), and State v. Jackson, 568 So.2d 599 (La.App. 4 Cir.1990).

| ^During closing arguments in Kaufman, 304 So.2d at 307 (emphasis added), the prosecutor stated:

“Gentlemen, my argument, when I speak in a personal way, my argument is based on the evidence, and believe me, that’s right, I personally feel from the evidence that I have a case; otherwise, I wouldn’t be here, because it’s within my power to be here or not be here.”

The supreme court found the prosecutor’s argument went beyond the permissible bounds, was an attack on the presumption of innocence afforded all accused before the courts, and emphasized the function of the prosecutor as an officer of government and tended to exploit it. The supreme court found, taking into consideration the other prejudicial errors in the matter, the improper and prejudicial argument was an additional reason for reversal. The instant case is distinguishable from Kaufman, as there were no improper comments regarding the presumption of innocence.

In Jackson, 568 So.2d at 603, the defendant complained about the following remarks made by the prosecutor during rebuttal closing argument:

Or how Officer Landry has cast that constitution to the wind. [Defense counsel] urges you to send a message, suggest that you send a message to the police department and to [the District Attorney] that this is not — you won’t— you won’t stand for this. I urge you to send another kind of message. I urge you to send a message to Mr. Jackson [sic] we won’t have this anymore in our neighborhoods. We won’t have this anymore right down the street from here, that’s the kind of message that I am urging you to send ....

The prosecutor also stated: “ ‘[Defense counsel] wants you to feel sorry for Melvin Jackson because he’s in an O.P.P. uniform. I say direct your sympathies to Paul Landry who was in no uniform of any kind protecting the people of this city from people like Melvin Jackson.’ ” Id. The prosecutor further stated:

Direct your sympathies to the people [defendant] could have sold that dosage unit [of heroin] to and direct your sympathies to 1;uPaul Landry for what he went through for those six months. The man sold heroin in the city of New Orleans. [Defense counsel] wants you to send a message. I would suggest you send the message to Melvin Jackson no more heroin on the streets of New Orleans, not by you. You are guilty, you are guilty as charged. You distributed heroin in the city of New Orleans, do not do it again, you will not do it again. I ask you to return a verdict of guilty as charged.

Id. (All emphases in original). The supreme court found the societal statements were directed to sending a message specifically to the defendant by convicting him, and there was no overt reference to the consequences to society should the defendant be acquitted. Moreover, the supreme court was not thoroughly convinced that the statements by the prosecutor influenced the jury or contributed to the verdict. The defendant asserts Jackson is distinguishable from the instant case in that the prosecutor in the instant case clearly made an overt reference to the consequences to society should he be acquitted.

In State v. Messer, 408 So.2d 1354, 1856 (La.1982), the prosecutor, during rebuttal argument, stated: “Lets [sic] send that message loud and clear that the Parish of St. Martin is not going to have those kind of people in this parish.” The supreme court found the remarks amounted to a “community call to arms,” which was clearly improper and designed to personalize crimes for the jury and make it appear that the defendant’s gunshots at troopers were somehow directed at the parish as a whole. However, the supreme court concluded the error did not require reversal in view of the substantial evidence of the defendant’s guilt.

In State v. Francis, 95-194, p. 13 (La.App. 5 Cir. 11/28/95), 665 So.2d 596, 604, the prosecutor stated the following:

Maybe five years from now somebody else will have jury duty and you’ll tell them, “Yeah, I served on jury duty, and I did the right thing. I helped protect our Parish. I supported our Police Officers in their-in their efforts to stop crime. And I came back guilty as charged with a man who had a gun when he know [sic] he wasn’t supposed to have a |«.figun.” And you’ll feel good about it, because it’s the only thing that you can do and live up to your oath as a-as a juror. Please do the right thing. Send out a message. He wants you to send a message. You send a message. Send a message to her and to her follow officers that we support you, and we support your efforts, not the efforts of robbers, not the efforts of liars.
I know there’s been a lot of talk that you don’t live in there, but little kids do. You make that area safe for them.

The fifth circuit found that, even assuming the prosecutor’s comments were improper, it was not an error that would require reversal.

In State v. Toups, 00-1944, p. 10 (La.App. 4 Cir. 10/8/03), 859 So.2d 768, 775, the state made the following remarks during rebuttal: ‘You know, maybe you want to cut her a break. Maybe you want to just cut her a break. I ask that [sic] don’t cut her a break by finding her not guilty. You’d be doing a disservice to the community.” The trial court sustained defense counsel’s objection to the state’s comments but refused to grant a mistrial. The fourth circuit found the trial court did not abuse its discretion in implicitly determining that the state’s plea to the jury did not make it impossible for defendant to obtain a fair trial. Thus, a mistrial was not warranted.

In Foster, 44 So.3d at 743, the state made the following remarks during closing argument:

You know what? You’re the collective voice of the community. You’re the jurors. You’re representing the people of Jefferson Parish. And you saw the amount of dope in this case, cocaine and marijuana. You’ve heard the elements. You’ve heard the testimony. Everybody agreed that drugs are terrible. They cause a lot of problems. Everybody heard it.

The fifth circuit found that, although arguably improper, the state’s comments fell within the purview of La.Code Crim.P. art. 771. The fifth circuit noted that an admonishment had been given and that the defendant received an adequate remedy funder Article 771, as the trial court instructed the jury not to be influenced by sympathy, passion, prejudice, or public opinion. The fifth circuit further found a mistrial was not warranted, as there was no indication the state’s comments so inflamed the jury that they influenced the jury. Additionally, the fifth circuit noted there was ample evidence of the defendant’s guilt.

The objectionable comments in the instant case do not refer directly or indirectly to race, religion, color, or national origin; another crime committed or alleged to have been committed by the defendant; the failure of the defendant to testify in his own defense; or the refusal of the judge to direct a verdict. Instead, the state’s remarks fall within the ambit of La.Code Crim.P. art. 771. Thus, an admonishment was called for unless an admonishment was not sufficient to assure the defendant a fair trial.

In light of the trial court’s admonition and instruction to the jury that it was not to be influenced by sympathy, passion, prejudice, or public opinion, a mistrial was not warranted, and the admonishment was an adequate remedy. Accordingly, assignment of error number four lacks merit.

Because the trial court instructed the jury to disregard the inappropriate statements made by the state during its rebuttal argument, the defendant’s claim that the trial court failed to admonish the jury is incorrect. Accordingly, assignment of error number five lacks merit.

REQUEST FOR A BENCH TRIAL

In his sixth assignment of error, the defendant contends the trial court erred, as a matter of law, in denying his request for a judge trial.

In his motion for post verdict judgment of acquittal, the defendant alleged he requested a bench trial on July 16, 2012, and his request was denied by the trial |27court. The state also referenced the defendant’s request in its memorandum in opposition to the defendant’s motion for post verdict judgment of acquittal. The matter was addressed by the parties at the hearing on the defendant’s motion. Because the request for a bench trial was not referenced in the minutes of court or the transcript of the defendant’s trial, appellate counsel requested that the record be supplemented and that both parties be allowed to file a supplemental brief to address the issue.

This court received a supplemental record on May 29, 2013. Therein, court reporter Debra Hebert signed an affidavit in which she asserted she was unable to provide a transcript of a hearing in which the defendant requested a bench trial and/or waived his right to a jury trial, as she had reviewed all of her notes and audio recordings of proceedings on July 16, 2012, and could find no reference to said request.

Counsel for the state and the defendant were notified via letter dated May 29, 2013, that a supplemental record had been lodged with this court. To date, no supplemental briefs have been filed by the parties. Thus, nothing has been presented in this assignment of error for this court to review, and this assignment of error is considered waived.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his only pro se assignment of error, the defendant contends he was denied effective assistance of counsel when defense counsel failed to file pre-trial motions to suppress identification and evidence.

A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains sufficient evidence to decide the issue, and the issue is raised |2sby an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701.

In his pro se brief, the defendant alleges the following: 1) defense counsel did not represent him in a professional manner, as counsel visited him a week and a half before trial; 2) defense counsel never told him or asked him anything about a trial; 3) defense counsel never informed him he had to request a bench trial more than forty-five days prior to trial; 4) the trial court failed to afford an adequate remedy when considering the motion for post verdict judgment of acquittal; therefore, when the defendant obtains relief he should proceed in front of a different judge; 5) defense counsel failed to perform proper pre-trial discovery and investigation, and interview and call witnesses; 6) defense counsel’s failure to suppress the identification and evidence precluded the defendant from presenting facts, evidence, and witnesses which would have proven his innocence; 7) defense counsel failed to prepare a defense dealing with the chain of custody; and 8) defense counsel failed to prepare an alibi defense. The defendant contends that defense counsel’s representation was not only deficient but indicated a constructive denial of counsel. The defendant further contends he was prejudiced because the outcome of his trial could have been different had defense counsel’s performance not been deficient.

The defendant’s allegations of ineffective assistance of counsel involve matters of trial preparation or strategy. Decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where the ^defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, the defendant’s claims of ineffective assistance of counsel will be relegated to post-conviction relief.

The defendant’s claim that the trial court failed to afford an adequate remedy when considering the motion for post verdict judgment of acquittal is considered abandoned, as he did not provide specific references to the record regarding his complaint. See State v. Lewis, 09-846 (La.App. 3 Cir. 4/7/10), 33 So.3d 1046, writ denied, 10-967 (La.11/24/10), 50 So.3d 825; Uniform Rules — Courts of Appeal, Rule 2-12.4.

CONCLUSION

The defendant’s conviction is affirmed. The trial court is directed to inform the defendant of the provisions of La. Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

CONVICTION AFFIRMED. REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Lyndall SPRINGER v. NANNIE O’NEAL APARTMENTS, et al.
    No. 13-570.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.
    Richard A. Rozanski, Wheelis & Rozan-ski, Alexandria, LA, for Defendants/Ap-pellees, MAC-RE, L.L.C., Murray A. Calhoun, Maurice Riemer Calhoun, Jr., Calhoun Property Management, Inc., Beauregard Seniors Apts., A.L.P.C., and Beauregard Community Action Associates, Inc.
    D. Patrick Daniel, Jr., Lafayette, LA, for Plaintiff/Appellant, Lyndall Springer.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

hLyndall Springer filed suit against Defendants, Beauregard Seniors Apartments Partnership and MAC-RE, L.L.C., after he fell at an apartment complex Defendants allegedly owned and/or managed. Mr. Springer claims that Defendants failed to provide a handicapped-accessible ramp on the property, and their failure to do so caused his fall and subsequent injuries. The district court granted Defendants’ dilatory exception of vagueness and dismissed the case. Mr. Springer’s appeal asserts that his petition was properly pled, and even if it were not properly pled, the trial court erred in dismissing the action without prejudice. For the following reasons, we reverse the judgment of the trial court.

I.

ISSUE

We must determine whether the trial court erred in granting Defendants’ dilatory exception of vagueness and dismissing Mr. Springer’s action without prejudice.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Springer is disabled and relies on the use of a wheelchair and/or walker. He lives in an apartment complex owned by Defendants in Beauregard Parish. Mr. Springer was injured while attempting to travel from the parking lot to his apartment while using a walker. He alleges that Defendants’ failure to install a 12handicapped-accessible ramp contributed to or caused his fall and subsequent injuries.

Mr. Springer filed a petition for damages against a number of defendants and claimed his injuries were caused by Defendants’ failure to maintain the premises and allowing the premises to exist in a defective manner. He amended his first petition to add additional defendants, but he maintained the same allegations of fault. Defendants filed Exceptions to Plaintiffs Petition and Superceding Petition. The trial court granted Defendants’ dilatory exception of vagueness and ordered Mr. Springer to amend his petition to cure the alleged deficiencies. Mr. Springer then amended his petition on four separate occasions, each time adding additional information or clarifying previous points.

Seven months after Mr. Springer filed his original petition, Defendants reurged the dilatory exception of vagueness and filed a memorandum in support of dismissal. The trial court held a hearing and issued a judgment granting Defendants’ dilatory exception and dismissing Mr. Springer’s claims without prejudice. Mr. Springer appeals.

III.

LAW AND DISCUSSION

Standard of Review

“[T]he purpose of a dilatory exception of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action, thus preventing its future relitigation after a judgment is obtained in the present suit.” Se. La. Univ. v. Cook, 12-21, p. 5 (La.App. 1 Cir. 9/21/12), 104 So.3d 124, 128. Thus, because the trial court’s 1,.judgment is based on a factual determination, the appellate court reviews the trial court’s judgment under the manifest error standard of review. See Id.

Proper Pleading

Louisiana is a fact pleading state under the Louisiana Code of Civil Procedure. Ellis v. Normal Life of Louisiana, 93-1009, p. 8 (La.App. 5 Cir. 5/31/94), 638 So.2d 422, 427. Although it has always been necessary to state a cause of action and to allege the material facts continuing a cause of action, it is not necessary to allege evidence. See La.Code Civ.P. art. 854. Indeed, Louisiana’s system allows even the most unsophisticated plaintiffs the opportunity to have their day in court. “[T]he objection of vagueness does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary to fulfill the aims of La.Code Civ.P. arts. 854 and 891.” Thomas v. Sonic, 06-14, p. 4 (La.App. 1 Cir. 11/3/06), 950 So.2d 822, 824. A plaintiffs petition is sufficient as long as it fairly informs the defendant of the general nature of the cause of action and alleges facts sufficient to allow the defendant to prepare a defense. Washington v. Flenniken Constr. Co., 188 So.2d 486 (La.App. 3 Cir.1966).

14Here, Mr. Springer’s fourth amended petition was more than sufficient to inform Defendants of the claims asserted and to allow them to prepare a defense. Mr. Springer alleged that he is a disabled individual who lives in the apartments owned and/or managed by Defendants. He was injured when he was forced to negotiate a curb in the parking lot of the apartment complex without the benefit of a handicapped-accessible ramp. The facts in the record are adequate to place any entity on notice of the cause of action. Any additional information sought by Defendants can be revealed during the discovery process. Thus, we find that Mr. Springer’s most recent petition more than adequately complies with the Louisiana Code of Civil Procedure, and the trial court erred in granting Defendants’ dilatory exception of vagueness.

Dismissal of Mr. Springer’s Action

Generally, a dilatory exception “merely retards the progress of the action,” but it does not tend to defeat the action. La.Code Civ.P. art. 923. In City of Gretna v. Gulf Distilling Corp., 207 La. 719, 21 So.2d 884 (1945), the supreme court reversed the trial court’s dismissal of a plaintiffs suit after the plaintiff had attempted several times to amend its petition. In doing so, the court stated:

The exception of vagueness is a dilatory plea. Such exceptions do not tend to defeat the action but only to retard its progress. Code of Practice, Article 332. The purpose of the exception is to compel the plaintiff to amplify and make more definite his claim in order that defendant may properly prepare his defense. It is futile to order a plaintiff to give information that he alleges is not in his possession and is not procurable by him at the beginning of the suit. No useful purpose can be served by such an order if plaintiffs allegation that the particulars are contained in the books of defendant and are readily available to him is true. The only effect of an order with which, on the face of the petition, plaintiff is unable to comply is to convert a dilatory exception into a 1 F,peremptory exception tending to the dismissal of the suit. When a plaintiff has alleged all that he can possibly allege, his petition must be met by a peremptory exception and not by a dilatory exception, such as a plea of vagueness.
Our conclusion is that the showing made by plaintiff in its several petitions entitle plaintiff to an opportunity to prove its claim. If plaintiff fails to do this it will at least have been given its day in court. If plaintiff has stated a cause of action which he can substantiate by proof, plaintiff should not be deprived of his right of recovery.

Id. at 889.

As we previously discussed, we see nothing lacking in Mr. Springer’s petition. Thus, the trial court erred by granting the dilatory exception, and it erred further by dismissing Mr. Springer’s lawsuit. We reverse the trial court and remand the action so that the parties may proceed with discovery.

IV.

CONCLUSION

We reverse the judgment of the trial court and remand this case for further proceedings. Costs of this appeal are assessed against Defendants.

REVERSED AND REMANDED.

      . Defendants filed a Motion to Strike Mr. Stringer’s brief on the grounds that it contains exhibits and other references not previously in the record. We grant Defendants’ Motion. The Court of Appeal is a court of record and is unable to review evidence not in the record or to accept new evidence. Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La.5/21/08), 983 So.2d 84.

      . The pertinent portions of La.Code Civ.P. arts. 854 and 891 respectively provide:
      Article 854. Form of pleading
      No technical forms of pleading are required.
      All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.
      Article 891. Form of petition
      A. The petition shall comply with Articles 853, 854, and 863, and whenever applicable, with Articles 855 through 861. It shall ... contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation. ...


author: COOKS, Judge. SAUNDERS, J.,

text:
    Joseph Randall HEBERT v. LOUISIANA STATE RACING ASSOCIATION.
    No. 13-419.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.

      Barry E. Roach, Lake Charles, LA, for Plaintiff/Appellant, Joseph Randall Hebert.
    James D. “Buddy” Caldwell, Attorney General, Rhea P. Loney, Assistant Attorney General, New Orleans, LA, for Defendant/Applicant, Louisiana State Racing Commission.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

12This writ application was filed by Defendant, the Louisiana State Racing Association (hereafter the Commission), seeking supervisory writs from the district court judgment allowing Plaintiff, Joseph Randall Hebert, the opportunity to conduct discovery. The district court also remanded the matter to the Commission for further proceedings and to consider any additional evidence gathered through discovery. This writ was granted to the docket and argued before this Court. For the following reasons, we find the trial court did not abuse its discretion in allowing Hebert to conduct discovery and deny the Commission’s writ.

FACTS AND PROCEDURAL HISTORY

This matter involves a racehorse doping dispute. Hebert is a licensed racehorse trainer in Louisiana. After winning their respective races during June of 2012, eight of Hebert’s horses tested positive for Ben-zonatate. According to the Commission’s brief, the Board of Stewards held a hearing and concluded that “each of the eight samples [from the horses] were positive for the presence of the drug Benzonatate, classified as an ARCI [American Racing Commissioners International] Category II Drug.” The Board of Stewards suspended Hebert for six months and referred “the matter to the Louisiana State Racing Commission [for] further action due to the opinion of the Board of Stewards that the penalty imposed was insufficient.”'

An administrative hearing was set for November 27, 2012. The Commission alleges that on October 25, 2012, it sent Hebert a notice of the hearing in which he was informed he could bring an attorney to the hearing, present evidence, and subpoena witnesses.

Hebert appeared at the November hearing and testified. He admitted to administering Benzonatate to each of his horses. He acknowledged Benzonatate, as far as he understood, was a non-permissive medication pursuant to the rules of gracing. Hebert agreed to a three-year suspension of his license and to the redistribution of the purse money for the pertinent races.

Despite his agreement to accept the suspension at the hearing, Hebert appealed to the district court. Prior to the district court’s scheduled hearing date, Hebert submitted a motion for leave to conduct additional discovery and present additional evidence. A hearing on the motion was held, and Hebert argued based on his investigation subsequent to the Commission hearing in November 2012, he learned that Benzonatate was not listed as a prohibited drug by ARCI until July 24, 2012, which was subsequent to the date any of Hebert’s horses in question won its race.

The Commission countered that all drugs not listed as permitted drugs were prohibited, irrespective of whether they were specifically identified by ARCI. The Commission also noted the state chemist could classify a drug regardless of whether it was listed as a prohibited drug, and the state chemist in this case concluded the drug found in all of Hebert’s horses was a prohibited Class II drug.

At the conclusion of the hearing, the district court allowed Hebert additional time to conduct discovery and to take a deposition of the state chemist. Subsequent to that decision, the Commission filed a writ application seeking the reversal of the trial court’s ruling. That application was docketed and argued before this court.

ANALYSIS

■ In his motion for leave to present additional evidence and conduct further discovery, Hebert invoked the application of La. R.S. 49:964(E), which provides:

If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the 14additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

The trial court found Hebert sustained his burden of proving that the evidence he sought was material and that he had good reasons for his failure to present evidence to the agency. In its writ application to this court, the Commission alleges the trial court abused its discretion in finding Hebert sustained the above bui'den of proving materiality and good reasons shown.

I. Materiality.

“Evidence is material if the proposition it tends to prove or disprove is a matter in issue.” Matte v. La. Farm Bureau Cas. Ins. Co., 95-1308 (La.App. 3 Cir. 6/12/96), 676 So.2d 713, 715 (quoting State v. Rogers, 553 So.2d 453, 455 (La.1989)). Hebert argued to the trial court that whether or not Benzonatate was listed as a prohibited drug at the time of Hebert’s violation was material to resolution of this matter. He notes Benzonatate did not become a prohibited drug by the ARCI until July 24, 2012, which was after Hebert’s horses tested positive for that drug. Moreover, Hebert maintains he was unaware, until after the November 27, 2012 hearing, of the information that ARCI did not list Benzonatate as a Category II prohibited substance until after the alleged administering of that drug to his horses. According to Hebert, there is a question as to what the Commission knew regarding whether Benzonatate was a banned substance and whether the information was concealed from him. Furthermore, it was acknowledged by all parties that the penalty a violator is subject to is dependent on the category a listed drug falls into. Thus, its classification is clearly material to this case. We cannot say the trial court abused its discretion in determining that the information as to whether or not ARCI listed Benzonatate as a prohibited Category II drug at the time of the alleged infractions was material to the resolution of this case.

IsII. Good Reasons Shown.

The primary argument made by the Commission in seeking to overturn the trial court’s judgment allowing Hebert to conduct additional discovery is that Hebert failed to demonstrate good reasons for his failure to present evidence at the original agency hearing. The Commission maintains that Hebert had notice of the hearing which advised him that he may have an attorney present, offer evidence, and subpoena witnesses. We note the notice was not included in the submissions to this court, and, therefore, we cannot verify what was written in it or when it was sent. This notice was allegedly sent on October 25, 2012, and the hearing was held one month later. The Commission submits that the Board of Stewards issued the violations to Hebert during July of 2012. Thus, they maintain Hebert had sufficient time to prepare his defenses and to discover the evidence he now seeks to discover and introduce. The Commission also argues no good reasons as to why Hebert did not do so have been provided.

In its brief to this court, the Commission acknowledges the following argument that Hebert makes in regard to his failure to present or seek to present evidence at the prior hearing:

After the fact, after the hearing, Mr. Hebert learned that Benzonatate, the alleged drug that was allegedly in his horses’ blood system, was not a prescribed or classified drug by the American Racing Commissioners International until July 24, 2012.

The Commission maintains this argument alone does not constitute good reasons for Hebert’s failure to present evidence at the November 27, 2012 hearing. Specifically, it contends the “failure of Mr. Hebert to look into a potential defense before the Commission meeting is not a valid reason for failing to present such defense.”

Hebert counters that he had no reason to present any evidence at the hearing regarding Benzonatate because he was not aware that the substance, at the time of |fithe. alleged administration to the horses, was not a banned substance by the ARCI. The following argument was presented by Hebert to the trial court:

[T]he reason he didn’t know [Benzona-tate was not a banned substance by the ARCI when it was administered] is because the Louisiana [State] racing .Commission is telling him ... “[Y]ou’ve got a banned substance.” They don’t have any rule promulgated that says [B]enzo-natate is a banned substance. There is nothing in the Louisiana [State] Racing Commission guidelines that says that. So. [Mr. Hebert] couldn’t have known until he came to me and we did some research .on [B]enzonatate.

It was acknowledged by the Commission that Benzonatate was in actuality classified by the state chemist, Dr. Steven Barker, as a Category II prohibited drug and not by ARCI. It was later adopted by ARCI as a Category II prohibited drug. The Commission noted La.Admin.Code tit. 35, § 1.1795 provides that unknown or unidentified drugs which are prohibited but not listed shall be appropriately classified by the state chemist upon discovery or detection. Thus, the Commission argues it was within the state chemist’s purview to' classify Benzonatate as a Category II prohibited drug. While this may be true, it does not change the fact that Hebert was under the belief that Benzonatate was listed as a Category II drug by the ARCI and not the state chemist. Hebert maintains if he was aware that the drug was categorized by the state chemist, he would have certainly deposed Dr. Barker.

It was acknowledged by both parties that the severity of any punishment for administering a prohibited drug is determined by its classification. There was no indication that Hebert was aware that the classification of Benzonatate as a Category II drug was made by Dr. Barker rather than ARCI. As stated earlier, all parties acknowledged that the penalty a violator is subject to is dependent, on the category a listed drug falls into. Because the penalty Hebert was facing was made solely as a result of Dr. Barker’s classification of Ben-zonatate as a Category II drug, it became apparent to Hebert after the Commission hearing that Dr. Barker’s | ./deposition was material to this case. Hebert’s reliance on the Commission’s insistence that Benzona-tate was an ARCI banned drug at the time of its administering arguably demonstrates good cause for his failure to take Dr. Barker’s deposition prior to the hearing.

The trial court at the hearing noted the confusion that existed in this case, stating as follows:

Here is what we are going to do. I am hearing all kinds of stuff. I am hearing that it might be this or it might be that or if it ain’t this, it’s got to be that.
I am going to let [Hebert] go back— he is going to be able to take the deposition of the chemist that he needs to take and just develop whatever evidence that he needs to develop and represent it to the racing commission so that they can make, in my opinion, a more intelligent decision about all of the facts that should have been presented to them at the time.

Considering the vast discretion placed in the trial court, we cannot say he erred in finding Hebert presented good reasons for his failure to present the evidence he now seeks at the original agency hearing. The record does indicate a legitimate question as to what Hebert knew as to when, and even if, Benzonatate was a banned substance at the time of the alleged use of the substance. The record also establishes Hebert was unaware until after the original agency hearing that Benzonatate’s classification as a Category II drug was made by Dr. Barker and not ARCI. Therefore, we will affirm the trial court’s judgment and deny the Commission’s writ.

WRIT DENIED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissenting.

|TI respectfully dissent and would grant the commission’s writ. I find that the trial court abused its discretion by allowing Hebert to modify the administrative record and present additional evidence.

The record shows that Hebert had full knowledge that using Benzonatate on his racehorses in order to gain an unfair advantage against his competitors was prohibited by the racing commission. At his administrative hearing, Hebert testified as follows:

Q. And you admit that you gave a drug, Benzonatate, to each of these eight horses that I’m going to run through the dates on?
A. That is correct.
Q. And you admit that this was a non-permissive medication pursuant to the rules of racing, correct?
A. That’s correct.

Hebert admitted guilt at his administrative hearing and accepted a three-year suspension and redistribution of the purses in connection with his use of Benzonatate. Less than three months after making these, admissions and freely entering his plea, Hebert sought leave from the trial court to conduct additional discovery and present additional evidence. He sought to argue that Benzonatate was not included by name in the Association of Racing Commissioners ^International, Inc.’s (“ARCI”) list of prohibited drugs until the day after his final win.

Louisiana Revised Statutes 94:964(E) dictates that Hebert may only present such evidence if “the additional evidence is material and ... there were good reasons for failure to present it in the proceeding before the agency.”

First, the evidence Hebert seeks to add is not material. The majority notes that the category in which ARCI classifies a prohibited drug affects the penalty for administering that drug. The majority suggests that because of this, whether or not ARCI prohibited Benzonatate by name when Hebert used it is material. However, La.Admin.Code tit. 35, § 1.1795(C) provides in pertinent part that “[u]nknown or unidentified drugs or substances which are prohibited but not listed shall be appropriately classified by the state chemist upon discovery or detection.” (Emphasis added.) Therefore, drugs may certainly be prohibited without being listed, as was the case of Benzonatate at the time Hebert used it. In fact, La.Admin.Code tit. 35, § 1.1727 states, “No person shall administer, or cause or knowingly permit to be administered, or connive at the administration of any drug not permitted by Chapter 15 to any horse to be entered or entered for a race.” Chapter 15 permits only two nonsteroidal/anti-inflammatory medications by name — Phenylbutazone and Oxyphenylbutazone — and six “bleeder” medications by name, none of which are Benzonatate. La.Admin.Code til. 35, §§ I. 1505, 1509. Title 35 prohibits use of all other drugs at or near the track except as administered by a licensed veterinarian. La.Admin.Code tit. 35, §§ 1.1501, 1505. Furthermore, La.Admin.Code tit. 35, § I. 1717 states, “The use of a stimulant, depressant, or anesthetic in a manner that might affect, or tend to affect, the racing performance of a horse is prohibited.” The additional evidence that Hebert seeks in conducting discovery regarding the state chemist’s classification of Benzona-tate, and | ¡¡regarding the timeline of events in connection with its listing, is therefore not material.

Second, Hebert has presented no reason whatsoever for his failure to discover this information, including his failure to take the deposition of the state’s chemist prior to the proceeding before the agency. Hebert argues that since Benzonatate was not listed as prohibited when he used it, he lacked notice that it was prohibited. Hebert’s subjective knowledge of whether or not he was violating a rule does not affect the application of La.R.S. 49:964(E), nor does it provide a good reason shown for Hebert’s failure to conduct discovery. Notwithstanding the fact that Hebert has already testified under oath that he believed the drug was prohibited by the rules of racing, such a notice requirement does not apply to an administrative case such as this.

Hebert argues that the additional evidence is material because he “did not realize that he was being punished without just cause.” This discussion of Hebert’s subjective knowledge implies a due process argument; however, I cannot agree that this case involves constitutional rights. No man has a right to participate in the highly regulated Louisiana race horse gaming industry; it is a privilege that may be likened to operating a gaming establishment or driving on Louisiana highways. As such, it is a privilege governed not by the notice requirement of the due process clause, but instead is within the discretion of the administrative body charged with regulating the activity — here, the commission. Mr. Hebert argues that he should not be penalized because the penalty for using Benzonatate on his horses was not yet established when he acted, as the drug was not yet classified at that time. This argument may succeed if constitutional or criminal law were to apply in this case. However, solely administrative law applies to this proceeding.

U would vote to grant the writ. Neither Mr. Hebert’s purported lack of awareness that Benzonatate was a banned substance until after the race nor his failure to conduct discovery provides sufficient justification under La.R.S. 49:964(E) for additional evidence to be allowed. Accordingly, I would grant the writ.