author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Lloyd A. MUNSON.
    No. 12-KA-327.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, J. Brandon Kinnett, Vincent A. Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Defendant/Appellant.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

|2Pefendant, Lloyd Munson, in his second appeal, appeals his convictions for one count of second degree murder, one count of felon in possession of a firearm, and one count of obstruction of justice, violations of La. R.S. 14:80.1, La. R.S. 14:95.1, and La. R.S. 14:130.1 respectively. Defendant argues that the trial court erred both when it granted the State’s challenges for cause against particular jurors and when it refused to allow the jury to consider “guilty of accessory after the fact to second degree murder” as a responsive verdict to the charge of “obstruction of justice.” For the following reasons, we find defendant’s assignments of error without merit and affirm his conviction. Due to an error patent however, we remand this case for correction of defendant’s commitment.

| ¿FACTS AND PROCEDURAL HISTORY

On October 8, 2009, the Jefferson Parish grand jury indicted defendant, Lloyd A. Munson, for one count of second degree murder, one count of felon in possession of a firearm, and one count of obstruction of justice, violations of La. R.S. 14:80.1, La. R.S. 14:95.1, and La. R.S. 14:130.1 respectively. Defendant pled not guilty at arraignment.

Just before trial, defendant filed a motion seeking to add an “accessory after the fact to second degree murder” as a responsive verdict to the obstruction of justice charge. The trial court denied that motion. The following evidence was admitted at defendant’s trial in support of defendant’s convictions.

Ian Hughes testified that on the night the victim, Terrance Pinkley, was murdered, he and Pinkley spent time at a few area clubs and then had breakfast. After this, Hughes went home to his trailer on Providence Street. Pinkley told Hughes that he was “going I guess to do whatever he do at night. Either go home or possibly sell drugs I think.”

Inside his trailer, Hughes and his girlfriend, Latoya Dillard, fell sleep. Later, a noise coming from outside awoke Hughes. Hughes’ mother, who lived across the street in her own trailer, telephoned Hughes and told him “she heard someone trying to get in her shed in the back of her trailer.” Hughes walked outside to check on the noise but did not see anyone. He then walked to the “front of the street” and saw “a guy leaving out of the yard.” Mr. Hughes testified that, upon closer inspection, there were two other men by the “wooden shed across the street from where I live” and that one of the men had a gun. Hughes testified that as he was beginning to walk back inside his trailer, he saw a blue Jeep Grand Cherokee driving up the street. The Jeep backed into the empty lot by the wooden shed. Hughes heard the door and the hatch of the Jeep open. Approximately ten seconds |4later, he heard the doors close and the Jeep drive off. There were approximately four people in the Jeep. Hughes also testified that he asked the men what they were doing and they told him to mind his own business. Hughes testified that he then told his girlfriend to call 911 because “something didn’t look right.”

Shortly thereafter, Hughes received a telephone call. The caller stated that “he had my boy, he had kidnapped a friend of mine, and that he wanted $10,000 or something like that.” Hughes testified that he did not recognize the voice on the phone. Hughes thought the telephone call was a joke until the caller put Pinkley on the phone and Pinkley told Hughes “they not playing, they not playing. Come up with anything, whatever you can come up with.” Hughes testified that he told the caller that he would try to get what money he could, and the caller then hung up. At that point, the police arrived and Hughes attempted to explain the situation.

Hughes received several other calls from the same caller that night. During one of the calls, the caller told Hughes “they was going to let me hear them, let me hear them shoot him.” The caller also made several more calls demanding money from Hughes. Hughes later used the telephone number obtained from his caller ID to return the phone calls. Hughes testified that the person who answered his call told him “don’t worry about it, don’t worry about it, that [Pinkley] was dead.” A subsequent call to Hughes informed him that Pinkley’s body could be located “on the other sides the tracks” by the “Cognac” club “near the graveyard on the side of an abandoned building.” Before hanging up, the caller warned Hughes, “next time you are going to know we are not playing. We gonna get your momma next time.” Hughes testified that Pinkley’s body was» later found where the caller said it would be.

| BOIivia Smith also testified. She told the court that Pinkley was her grandson and that at 4:38 a.m. on the morning of March 1, 2008, she received a telephone call from Pinkley. In that call, Pinkley told her “[I] need plenty of money ... tell Uncle Alfred to raise up as much money as they can.” Pinkley did not however mention why he needed the money.

Detective Rodrigue, pursuant to an investigation of the above events, developed information that the telephone number which had been used to call Hughes was defendant’s cell phone number. Based on this information, Detective Rodrigue obtained an arrest warrant for defendant. Defendant was subsequently arrested and gave three statements; all of these statements were admitted at trial.

In his first statement, defendant stated that on the night in question, his brother, Leon Manuel, came to him in a blue Jeep Cherokee and asked him to take a ride. According to defendant, the purpose of the ride was to “go holler at Tee [Pinkley], to get the rest of the coke from him.” Defendant stated that he and Manuel were accompanied by defendant’s twin brother, Floyd Munson, Clarence Gould, and Jeremy Gould. Defendant further stated that Pinkley had previously sold the group low quality cocaine and that Pinkley was going to rectify the situation by giving them more cocaine. All five men were carrying firearms. Defendant admitted that he was carrying a black .45 caliber gun.

Apparently, when the group encountered Pinkley, he changed his mind and decided not to give them more cocaine. Defendant stated that Clarence Gould pointed his pistol at Pinkley and ordered him to get into the back of the Jeep. According to defendant, when the group arrived at Upland Street in Metairie, Clarence Gould escorted Pinkley out of the Jeep and shot him. At that point, Clarence and Leon Manuel dragged the victim’s body into an alley. Defendant admitted that he was present when Clarence Gould shot Pinkley but that it was not | Shis intention for Pinkley to be killed or kidnapped. Defendant further stated that he did not know that the other members of the group had any such intention.

In defendant’s second statement, he stated that on the morning after the murder, a girlfriend dropped him off at the Helena Street residence and that he later helped Leon Manuel burn the blue Jeep Grand Cherokee.

In defendant’s third statement, he admitted that he saw Clarence Gould shoot and kill Pinkley. Defendant continued to insist however that he did not know that Clarence Gould was going to shoot Pink-ley.

Dr. Karen Ross also testified at defendant’s trial regarding the autopsy she conducted on Pinkley. Dr. Ross’ autopsy revealed two gunshot wounds to the back of his head, and a graze-type wound to the palm of his left hand. Dr. Ross also recovered a cellophane container from between Pinkley’s buttocks that contained cocaine. Dr. Ross testified that after conducting this autopsy, she determined Pinkley’s death was caused by gunshot wounds to his head, and that the manner of death was homicide.

In support of defendant’s conviction for felon in possession of a firearm, Aischa Prudhomme of the Jefferson Parish crime laboratory was certified as an expert in fingerprint identification. Ms. Prudhomme testified that defendant’s fingerprints taken prior to trial matched the fingerprints affixed to documentation establishing defendant’s prior 2004 conviction for possession of cocaine. This testimony was offered in addition to defendant’s admission in his first statement that he was carrying a gun when he went to meet Pinkley.

After the above and other evidence was introduced at defendant’s trial, a jury found defendant guilty as charged on all three counts. The trial court sentenced defendant for each of these convictions. Defendant thereafter sought his first appeal.

|7On November 15, 2011, without addressing the merits of defendant’s original appeal, this Court found that the trial court failed to rule on defendant’s pro se motions for post-verdict judgment of acquittal and motion for new trial. We therefore vacated defendant’s sentences and remanded the matter for rulings on the motions, reserving defendant’s right to appeal his convictions and sentences. State v. Munson, 11-54 (La.App. 5 Cir. 11/15/11), 78 So.3d 290.

On remand, the trial court denied defendant’s pro se motions for post-verdict judgment of acquittal and motion for new trial. After waiving delays, defendant was re-sentenced to a term of life imprisonment on the second degree murder conviction to be served without the benefit of parole, probation, or suspension of sentence; ten years at hard labor on the felon in possession of a firearm conviction to be served without the benefit of parole, probation or suspension of sentence; and forty years at hard labor on the obstruction of justice conviction. The trial court ordered all sentences to be served concurrently.

Defendant moved for an appeal. The trial court granted defendant’s motion for this, his second appeal.

DISCUSSION

Defendant assigns two errors of the trial court. First, defendant argues the trial court erred when it improperly granted the prosecution’s challenges to certain jurors for cause and thereby allowed the prosecution an illegally high number of peremptory challenges. Second, defendant argues the trial court erred in refusing to instruct the jury, and to allow the jury, to consider “guilty of accessory after the fact to second degree murder” as a responsive verdict to the charge of obstruction of justice. We address in turn, each of defendant’s assignments.

IsAssignment One

In his first assignment of error, defendant contends that the trial court erred by excusing four potential jurors, Gaynell Herbert, Emelie Buford, Mona DiGiovan-ni, and Larry Bright, from the jury pool following the State’s challenges for cause. Defendant maintains that as a result of this error the State was permitted a greater'number of peremptory challenges than allowed by law.

Defendant was tried and convicted of second degree murder, a crime necessarily punishable at hard labor. La. R.S. 14:30.1. In trial for such a crime, La.C.Cr.P. art. 799 requires that, “each defendant shall have twelve peremptory challenges, and the State shall have twelve challenges for each defendant.” The erroneous allowance to the State of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the State of more peremptory challenges than it is entitled to by law. La.C.Cr. art. 800. Here, the State used eleven of its twelve peremptory challenges, excusing jurors Wilson, Haeuser, Simmons, Robinson, Tu, Noonan, McCoy, Daigre, Billiot, Zeagler, and Eugene. Therefore, to validly claim that the court made a reversible error, defendant must prove that the trial court erroneously excused two or more jurors for cause.

The Sixth Amendment to the United States Constitution guarantees the accused the right to a trial by an impartial jury. State v. Anderson, 06-2987 (La.9/9/08), 996 So.2d 973, 995, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009). Further, La. Const. Art. I, § 17 guarantees the right to full voir dire examination of prospective jurors and the right to challenge those jurors peremptorily. La. C.Cr.P. art. 797 sets forth the grounds for which a juror may be challenged for cause. Two of these grounds are pertinent here, namely, that “[t]he juror is not impartial, whatever the cause of his partiality,” and that “[t]he juror |flwill not accept the law as given to him by the court.” La.C.Cr.P. art. 797(2) and (4).

“[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998), (quoting State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990)). The trial judge must look at the juror’s responses during his entire testimony, not just “correct”, isolated answers, or, for that matter, “incorrect,” isolated answers. Id. (citing State v. Lee, 559 So.2d 1310, 1318 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991)). The trial judge is vested with broad discretion in ruling on challenges for cause; his ruling will be reversed only when a review of the entire voir dire reveals that the judge’s exercise of discretion was arbitrary and unreasonable with resultant prejudice to the accused. See State v. Labostrie, 358 So.2d 1243, 1247 (La.1978). This is necessarily so because the trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the parties’ attorneys. State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108. Such expressions and intonations are not readily apparent at the appellate level where a review is based on a cold record. Id.

To determine whether the trial court committed reversible error by erroneously granting challenges for cause for two or more jurors, we will examine individually, each complained of challenge for cause granted to the State.

| inJuror Herbert

Defendant argues that the trial court erred in granting the State’s challenge for cause against Juror Herbert because of her expressed reluctance to convict based upon the uncorroborated testimony of one witness. Defendant further maintains that Ms. Herbert never stated that she would not follow the law and that it is reasonable and wise for any juror to express a reluctance to convict based upon uncorroborated testimony of a lone witness.

In granting the State’s challenge to Ms. Herbert for cause, the trial court judge stated, “I’m convinced after listening to Ms. Herbert, no matter what the state proves in testimony alone, she thinks there is a high burden, higher burden, so I’m going to grant their motion for cause.” Defense counsel noted his objection without specifying his grounds.

In this appeal, defendant argues the trial court erred in two ways with regard to Ms. Herbert. First, defendant complains that Ms. Herbert was incorrectly challenged for cause based on responses she provided to improper hypothetical questioning.

“Louisiana law clearly establishes that a party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case.” State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002). Hypothetical questions and questions of law are not permitted in the examination of jurors which call for a pre-judgment of any supposed case on the facts. State v. Smith, 216 La. 1041, 45 So.2d 617, 618-19 (La.1950).

In the instant matter, the State set forth the law regarding convictions based on witness testimony alone. Through its line of questioning, the State sought to | ^evaluate the prospective jurors’ ability to apply the law regarding witness testimony in the absence of corroborating physical evidence, a relevant ássue to the case at bar. It did not seek to acquire any prejudgment conclusions concerning the facts of the case. Under these facts, we find that the trial court did not improperly allow hypothetical questioning of Ms. Herbert.

Second, defendant complains that trial court erred in granting the State’s challenge for cause against Juror Herbert because she expressed reluctance to convict someone based upon uncorroborated witness testimony.

Under Louisiana law, a victim’s or witness’ testimony alone is usually sufficient to support the verdict. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75, pp. 11-12 (La.App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied, 05-2591 (La.5/26/06), 930 So.2d 20.

In this case, Ms. Herbert indicated that she would not, or could not, accept this legal standard. Ms. Herbert also indicated that she would apply a different standard to murder cases as opposed to other cases. . She was told that the law allowed the State to prove its case through testimonial evidence alone in any criminal case, including a murder trial. However, Ms. Herbert indicated that in a murder trial, she would need physical evidence before “weighting] in on a murder.” She further expressed that she could convict on testimony alone on a “lesser” offense, but that she could not do so with respect to a murder case. Upon reviewing the voir dire in its entirety, the trial court stated that it was “convinced after listening to Ms. Herbert, no matter what the state proves in testimony alone,” she would require a higher burden.

| ^Accordingly, we find that the trial court did not abuse its discretion in granting the State’s challenge for cause with regard to Juror Herbert.

Juror DiGiovanni

Juror DiGiovanni, like Ms. Herbert, expressed her reluctance to convict someone based upon the testimony of a single witness. The trial court granted the State’s challenge for cause as to Juror DiGiovanni. Defendant contends that Ms. DiGiovanni’s reluctance does not constitute grounds for a challenge for cause when she did not tell the court that she would not follow the law or would not decide the case according to the law and evidence.

Ms. DiGiovanni indicated uncertainty on being able to convict an individual on witness testimony alone. Her inability to follow the law was exhibited through her reluctant responses, e.g. “I’m not really sure,” “I just don’t think,” and “I would have a hard time.” This inability was apparent to the trial court after attempts at rehabilitation concerning her views failed. After scrutinizing the record as a whole, it appears Ms. DiGiovanni’s responses reflect a bias, prejudice, or inability to render a judgment according to the law. Thus, we find that the trial court did not abuse its discretion in granting the State’s challenge for cause as to Ms. Di-Giovanni.

Juror Buford

Next, defendant contests the State’s challenge for cause exercised against Juror Buford on the grounds that Ms. Buford stated that she might have a “tough time reaching a decision in this case.”

The trial court granted the State’s challenge for cause, noting, “I think her mind set is, and I was impressed "with her honesty and sincerity, and I personally get the impression she is not trying to dodge jury service, she is just trying to do |1sthe right thing by telling us she don’t [sic] think she can make up her mind on a case like this no matter what.”

It is apparent from the record that Ms. Buford’s responses to questions indicated that she was noncommittal and unable to make a decision. She also indicated that she could not ensure that she would be fair to the parties and that she would not make a good juror. Ms. Buford’s responses throughout voir dire demonstrated she did not understand and would have a difficult time following the law. Noting Juror Buford’s inability to “make up her mind on a case like this no matter what,” the trial court granted the State’s challenge for cause.

In Wyatt v. Hendrix, 43,559 (La.App. 2 Cir. 11/5/08), 998 So.2d 238, the court found no error in the trial court’s decision to grant a challenge for cause with regard to a juror who admitted that she was uncertain as to whether she could make a fair decision. As did the juror in Wyatt, Ms. Burford exhibited inability to render a decision in any case. Therefore, we find that the trial court did not abuse its discretion in granting the State’s challenge for cause as to this juror. '

Juror Bright

Lastly, defendant alleges that the challenge for cause exercised against Juror Bright was improperly based on Mr. Bright’s candid experiences with the police which would cause him to evaluate a police officer’s testimony with caution.

Although personal connections to and relationships with law enforcement personnel do not, by themselves, disqualify prospective jurors for cause, such associations and relationships are subject to careful scrutiny. Moreover, the Louisiana Supreme Court has held that a juror who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is incompetent to serve. State v. Davenport, 445 So.2d 1190, 1193-94 (La.1984). The relevant question is whether a prospective juror could assess credibility of 114each witness independently of his relationship with law enforcement. If bias or prejudice may be reasonably attributed to a relationship or association, the prospective juror should be excused for cause. State v. Wilson, 25,775, 25,776 (La.App. 2 Cir. 2/23/94), 632 So.2d 861.

Several courts have held that when a potential juror harbors a bias against the police, that juror can be challenged for cause. For example, in State v. Divers, 38,524 (La.App. 2 Cir. 11/23/04), 889 So.2d 335, writ denied, 2004-3186 (La.4/8/05), 899 So.2d 2, cert. denied, 546 U.S. 939, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005), it was revealed during voir dire that a witness possessed an anti-police bias because her brother had been incarcerated for armed robbery, a close friend had been incarcerated for homicide, and because she had been arrested twice. In that case, the trial court found the juror’s inability to follow the law and her bias towards the police supported granting the State’s challenge for cause. Id. On appeal, the Second Circuit affirmed, reasoning “[t]he trial court did not abuse its discretion in that [the juror] repeatedly indicated that she was not willing to follow the law and had a possible bias.” Id.

In this case, Mr. Bright indicated that he had been accused of crimes that he did not commit. He further indicated that he previously had bad experiences with police. When asked by the court if his prior experiences were going to “prejudice you no matter who testifies, what policeman testifies, you are not going to believe him no matter what,” Mr. Bright indicated “I think that might be the case.”

Based on the responses provided, it appears that Juror Bright possessed bias which would have prevented him from fairly considering the evidence. Despite attempts at rehabilitation, Juror Bright remained adamant about his inability to believe a police officer’s testimony due to his harbored personal bias towards law | ^enforcement. Because of this, we find that the trial court did not abuse its discretion in granting the State’s challenge for cause as to Mr. Bright.

Because we find the that trial court did not err in any of the four challenged grants to the State for their cause challenges, we find defendant’s first assignment to be without merit.

Assignment Two

In his second assignment, defendant argues the trial court erred in denying his motion to add “accessory after the fact to second degree murder” as a responsive verdict to his “obstruction of justice” charge and refusing to instruct the jury on this requested responsive verdict. In this motion, defendant argued that “obstruction of justice, under the circumstances of this case ... includes the crime of accessory after the fact.” Defendant is incorrect.

When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of La. C.Cr.P. article 814 or 815, the court must charge the jury as to the law applicable to each offense. La.C.Cr.P. art. 803. Because La.C.Cr.P. art. 814 does not list any responsive verdicts for “obstruction of justice,” it is not applicable here. La.C.Cr.P. art. 815 however is applicable. It states in relevant part, “the following verdicts are responsive: (1) Guilty; (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or (3) Not Guilty.” La.C.Cr.P. art. 815 (emphasis added). Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. McCoy, 337 So.2d 192, 196 (La.1976). Therefore, if an offense’s essential elements are also elements of a charged offense, the court must instruct the jury as to the law applicable to that offense.

| ifiHere, the charge of accessory after the fact, defined by La. R.S. 14:25, is not a lesser included offense of obstruction of justice, defined by La. R.S. 14:130.1. After comparing La. R.S. 14:25 (defining “accessory after the fact”) and La. R.S. 14:130.1 (defining “obstruction of justice”), we find at least two elements required to convict a defendant for “accessory after the fact” that are not required to convict such a defendant for “obstruction of justice.” First, to convict a defendant as an “accessory after the fact,” the State must prove the defendant committed his act after an underlying felony occurred; this is not true to convict a defendant for “obstruction of justice.” Second, to convict a defendant as “accessory after the fact” the State must prove the defendant took an act in order to aid a principal of a crime; again, this is not required to convict a defendant of “obstruction of justice.” Because proving “accessory after the fact” requires proving these additional elements, “accessory after the fact” is not a lesser included crime of “obstruction of justice” nor a responsive verdict to it. Therefore, we find defendant’s second assignment to be without merit.

ERRORS PATENT REVIEW

This Court has reviewed the record in this appeal for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and found one such error requiring correction.

Defendant’s commitment entry contains a typographical error: it erroneously indicates that both count 1 and count 2 are for “(14:30.1 F II MURDER/SECOND DEGREE).” The transcript reflects however that Count 2 is not second degree 117murder, but rather possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. When there is a discrepancy between the transcript and the commitment, the transcript generally prevails. State v. Richardson, 09-714, p. 8 (La.App. 5 Cir. 2/9/10), 33 So.3d 903, 908, writ denied, 10-0526 (La.10/15/10), 45 So.3d 1109 (citing State v. Lynch, 441 So.2d 732, 734 (La.1983)).

Accordingly, this Court remands this matter to the trial court and orders it to: amend the commitment for correction of the typographical error in conformity with the transcript; make an entry in the minutes reflecting this change; and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been sentenced and to the General Counsel of the Louisiana Department of Public Safety and Corrections. La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

AFFIRMED IN PART, REMANDED IN PART

      . Pinkley's body was found on the side of an abandoned house at 8301 Milan Street in Metairie, next to a cemetery. St. Charles Parish police found a stolen blue Jeep Grand Cherokee burned in St. Rose.

      . Not only did defense counsel not object to this line of questioning, defense counsel himself used the same hypotheticals to question Ms. Herbert.

      . La. R.S. 14:25 in pertinent part states, ‘‘[a]n accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” La. R.S. 14:25 (emphasis added).

      . See e.g., State v. Plaisance, 01-1040 (La.App. 5 Cir. 3/26/02), 815 So.2d 272, where this Court found that La. R.S. 14:25 (accessory after the fact) criminalizes the act of aiding a fugitive rather than preparatory acts necessary to render the aid.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Richard RAY.
    No. 12-KA-684.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

|2In this appeal, defendant, Richard Ray, challenges his second degree murder conviction on the basis that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On June 23, 2011, the Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of LSA-R.S. 14:30.1. At his arraignment on June 24, 2011, defendant pled not guilty. The matter proceeded to trial before a twelve-person jury on December 6-9, 2011. After considering the evidence presented, the jury found defendant guilty as charged. On January 5, 2012, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

| ¿FACTS

This case stems from a shooting that occurred at approximately 8:00 p.m. on February 24, 2011, on the west bank of Jefferson Parish. On that day, in the early evening hours, there was apparently a gathering of people in the 1500 block of Abbey Road in Harvey. These people, many of whom knew or at least recognized each other, were “hanging around,” talking, drinking, and having a good time.

Eddie Wilkinson and Terrance Neal, who were both drinking, engaged in a heated discussion. At some point, Neal’s female cousin, Tion Franklin, came over to the men and joined in their conversation. Wilkinson seemingly said something that Franklin did not like, and the two of them exchanged words. Shortly thereafter, defendant, Franklin’s boyfriend, approached, and a verbal argument ensued between defendant and Wilkinson. Defendant told Wilkinson he would be back, and then left with Franklin in his white four-door car with big rims. Within thirty minutes, defendant returned with a gun in his hand. He approached the group of people, pointed the gun at Wilkinson, fired one shot, and fled the scene.

Deputy Donna Madere responded to the 911 call about a shooting. When she arrived at the scene, she observed an unresponsive black male lying in the driveway of the apartment. As medical personnel were attending to Wilkinson, Deputy Mad-ere observed that the man had a gunshot wound to his lower left abdomen. Wilkinson was transported to the hospital where he died.

Detective Rhonda Goff of the Jefferson Parish Sheriffs Office, the lead detective on this case, arrived at the scene and began her investigation. From her conversations with witnesses, Detective Goff learned that the possible perpetrator’s name was “Rich,” that the car being driven by the perpetrator was an older model, |4white, American car with rims, and that Tion Franklin was there that night with “Rich.” Through her investigation, Detective Goff discovered that “Rich” was Richard Ray and that he owned a 1997 white Lincoln, four-door car with rims and a license plate number TTC007. Once the license plate for defendant’s vehicle was obtained, Detective David Spera researched the camera system surrounding that neighborhood and discovered that the camera captured defendant’s car going into the neighborhood on the day of the murder.

Based on this information, Detective Goff compiled a six person photographic lineup containing defendant’s photograph. In addition, she composed a photographic lineup containing Tion Franklin’s picture. Based on witness statements and positive identifications of defendant and Franklin, Detective Goff obtained an arrest warrant for defendant and a search warrant for his last known address, which was his mother’s residence. However, defendant’s mother advised the detective that he had not lived there for months. The detective subsequently received information that defendant was in Tallulah, Louisiana. By the time the police got there, defendant was gone; however, the detective located and searched the suspect vehicle, recovering only a cell phone with no battery or SIM card. Defendant later turned himself in to police. The gun used in this homicide was never located.

SUFFICIENCY OF THE EVIDENCE

In his sole assigned error on appeal, defendant challenges the sufficiency of the evidence used to convict him of second degree murder.

The constitutional standard for testing the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

Second degree murder is defined in LSA-R.S. 14:30.1, in pertinent part, as the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Specific criminal intent, as a state of mind, need not be proven as fact but may be inferred from the circumstances and the actions of the accused. State v. Martinez, 09-740 (La.App. 5 Cir. 3/23/10), 38 So.3d 926, 932. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing it at a person. State v. Jackson, 03-883 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 850, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. See State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Positive identification by one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

| (¡Defendant does not appear to argue that the State failed to establish any of the essential statutory elements of his conviction, but rather contends the State failed to prove beyond a reasonable doubt his identity as the shooter. To support this argument, defendant points to numerous inconsistencies in the testimony regarding the description of the perpetrator and the description of his car. In addition, he points to variances in the testimony regarding whether one or two shots were fired and whether defendant carried the gun in his right or left hand. Defendant further asserts that the testimony of defendant’s mother, Willie Ray, provided a reasonable hypothesis that defendant was not the perpetrator. Defendant points to her testimony that defendant was in Tallu-lah for a family member’s funeral.

Despite any inconsistencies in the testimony, we find that the State presented sufficient evidence at trial to prove beyond a reasonable doubt that defendant was guilty of second degree murder. In particular, to meet its burden of proof, the State introduced the testimony of numerous witnesses who were present at the scene and saw defendant’s actions. Justin Williams testified that he saw defendant arguing with Wilkinson and then heard defendant say, “I’ll be back.” Williams testified that defendant left in a white Cadillac with rims. Further, Williams saw defendant’s car return and observed defendant get out and walk towards Wilkinson with a gun in his hand. Williams heard a gunshot and saw defendant with his arm raised. He then saw defendant get back into the same white car and leave. At the time of the incident, Williams, who did not know defendant, described him as a tall, slim black male with a “low” haircut and a “bump” or mole on his face. When subsequently presented with a photographic lineup, Williams positively identified defendant as the person who shot Wilkinson.

17Ericka Oliver testified that she witnessed the argument between Wilkinson and Franklin and the argument between defendant and Wilkinson. She heard defendant tell Wilkinson, “I’ll be right back.” Oliver saw defendant return within thirty minutes with a gun, point the gun at Wilkinson, and shoot him. Oliver, who did not know defendant prior to the incident, described him as five feet, six inches tall with dark skin, a mustache, and a “low” haircut. Oliver also positively identified defendant in a photographic lineup as the person who argued with and then shot Wilkinson.

Phillip Davis testified that he also witnessed the argument between defendant and Wilkinson. Davis did not see defendant come back and did not see the shooting or the shooter. However, he did positively identify defendant as the man he saw arguing with Wilkinson that evening.

Karen Pierce also witnessed the arguments between Wilkinson and Franklin and Wilkinson and defendant. She heard defendant say to Wilkinson, “I’ll be right back.” Pierce saw defendant leave in a white Cadillac with rims, but she did not see who shot Wilkinson. When shown a photographic lineup, Pierce positively identified defendant as the man arguing with Wilkinson who said, “I’ll be right back.”

Derron Howard was also present in the neighborhood on the night of the incident. According to Howard, defendant was driving a white or cream colored Lincoln with rims. He saw defendant get out of his car with a black gun in his hand. Howard saw defendant point the gun at Wilkinson, heard a gunshot, and then saw defendant return to his car and leave. Howard positively identified defendant in a photographic lineup as the person he saw shoot Wilkinson.

Lawanda Davis testified that on the night of the shooting, she heard Franklin and Wilkinson and defendant and Wilkinson arguing. She heard defendant say, |S“H1 be right back.” She later saw defendant walk up with a gun in his hand, point the gun, and shoot Wilkinson. Davis did not see defendant leave in his car, but she testified that defendant does drive a white Lincoln with rims. Davis positively identified defendant in a photographic lineup as the person who shot Wilkinson.

In addition to these "witnesses placing defendant at the scene, Detective David Spera testified that Jefferson Parish Sheriffs Office’s Boss 3 Camera System captured pictures of the license plate on defendant’s white Lincoln in the surrounding area. The pictures placed him near the Pebble Walk neighborhood earlier on the day of the murder. Near the time of the murder, defendant’s license plate was captured by this system at the intersection of Marvin Court and Price Drive, at 7:49 p.m. and 8:11 p.m. The State presented a map showing the distance of this intersection from the scene of the murder. Detective Goff testified that it took her about five to six minutes to drive from the scene of the murder to the intersection of Marvin Court and Price Drive. The dispatch call for the shooting came in at about 8:06 p.m.

At trial, defendant presented the testimony of one witness, his mother Willie Ray. Defendant claims that her testimony provided him with an alibi. However, her testimony showed that she did not actually know defendant’s whereabouts on the day of the murder, which was Thursday, February 24, 2011. She testified that when Detective Goff came to her house looking for defendant, he was in Tallulah, Louisiana, at a funeral. However, Ray admitted in her testimony that the day she discovered defendant was in Tallulah at a funeral was a Saturday, the same day Detective Goff went to her house searching for defendant, and that she did not know defendant’s whereabouts prior to that day. Additionally, Ray testified that she found a pawn ticket in defendant’s car, containing his signature, for a |9.38 pistol. This pawn ticket is for a pawn shop located in Gretna, Louisiana, and is dated February 24, 2011.

In the present case, the jury heard the testimony of numerous witnesses who were in the area at the time of the shooting, as well as the testimony of defendant’s mother. Admittedly, there were inconsistencies in the testimony. The jury obviously believed the testimony of the State’s witnesses despite the minor inconsistencies and contradictions in their testimonies. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to second guess the credibility of witnesses absent impingement on the fundamental due process of law. State v. Jones, 985 So.2d at 240.

In this case, the jury was presented with testimony that defendant and Wilkinson were arguing, that defendant told Wilkinson he would be right back, and then left the scene in a white or cream colored car with big rims. Shortly thereafter, defendant returned, armed with a gun, and shot Wilkinson. The jury was also presented with evidence that defendant’s car was captured in the area at the time of the shooting by a camera surveillance system. Further, the pawn ticket found in defendant’s car from a Gretna pawn shop showed he was in the general vicinity on the day of the murder. Viewing the evidence in a light most favorable to the State, we find that a rational trier of fact could have concluded that defendant committed the second degree murder of Wilkinson. Accordingly, we find no merit to the arguments presented by defendant herein.

UERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED

      . Dr. Dana Troxclair, a forensic pathologist with the Jefferson Parish Sheriff’s Office, performed an autopsy on the victim. She determined that the cause of death was a single gunshot wound to the lower left abdomen.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Bryan Joseph DUFRENE, Jr.
    No. 12-KA-716.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jerome G. Smith, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

12Pefendant, Bryan Joseph Dufrene, Jr., was convicted of fourth offense driving while intoxicated, in violation of La. R.S. 14:98(E) and was sentenced to 25 years at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence, with credit for time served. Defendant now appeals.

DISCUSSION:

In his first assignment of error, defendant alleged that the trial court erred in denying his motion to suppress. Defendant argued that he was subject to a custodial arrest which required a Miranda warning prior to his first statement. Defendant alleged that the failure to administer Miranda rights tainted his subsequent statement and the results of the breathalyzer test.

In a hearing on a motion to suppress, the State bears the burden of proving the admissibility of a purported confession or statement by the defendant, and of any evidence seized without a warrant. La.C.Cr.P. art. 703(D). A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the evidence clearly favors suppression. State v. Butler, 01-0907 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 124. In determining whether the ruling on a motion to suppress was correct, the court is not limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at trial. State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859.

Inculpatory statements made by a defendant to a police officer as a result of a traffic stop do not constitute custodial interrogation and thus, do not trigger the requirements of Miranda. State v. Bourgeois, 00-1585 (La.App. 5 Cir. 3/14/01), 785 So.2d 848, 852, citing State v. Pomeroy, 97-1258 (La.App. 5 Cir. 5/13/98), 713 So.2d 642. Questioning and detention that is a result of a traffic stop is “presumptively temporary and brief.” Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The questions accorded during a routine traffic stop are not analogous to a custodial interrogation situation and thus, do not prompt the requirements of Miranda. Id. at 437-438, 104 S.Ct. 3138.

The following facts were adduced at the motion to suppress hearing and trial. On November 11, 2011, Officer Leroy Victori-ano was alerted by Westwego Chief of Police, Dwayne Munch, that a red GMC pickup truck traveling southbound on Central Avenue was swerving and the vehicle had run off the road several times. Officer Victoriano was informed that the vehicle was currently in the drive-thru at Taco Bell and he proceeded to that location. Officer Victoriano located the vehicle described as a red GMC pickup truck. The vehicle left the drive-thru, made a U-turn on the Westbank Expressway and traveled eastbound. Officer Victoriano followed the vehicle and observed the vehicle swerve from side to side in a reckless manner.

Considering his observation of the vehicle, Officer Victoriano believed that the driver of the vehicle was intoxicated or had a medical condition. Officer 14Victoriano conducted a traffic stop, based on the reckless operation of the vehicle by the defendant, in the 900 block of Central Avenue. Officer Victoriano asked the defendant if he had consumed any alcoholic beverages. Defendant told Officer Victoriano that he had three beers earlier in the evening. A field sobriety test was conducted after Officer Victoriano smelled alcohol and observed defendant’s slurred speech and red, watery eyes. Based on defendant’s poor performance during the test, Officer Victo-riano concluded that he had probable cause to arrest defendant and transported him to the Westwego Police Department, and he advised defendant of his Miranda rights. An Arrestee’s Rights Form was reviewed and signed by the defendant. Defendant was again asked if he had consumed any alcoholic beverages. Defendant stated that he had consumed three beers. Subsequent to being advised of his Miranda rights, defendant agreed to take a breathalyzer test which showed his blood alcohol content was .204% alcohol. At trial, the defendant acknowledged that he had consumed three beers and subsequently drove his vehicle.

After reviewing the entire record, we find that the trial court did not abuse its discretion in denying defendant’s motion to suppress. The record supports a finding that defendant was stopped for a traffic violation, ie., reckless operation. At the time defendant made his initial statement that he had consumed three beers, he was not under arrest or deprived of his freedom of action in any significant way.- Defendant’s statement was made during a routine traffic stop and was not subject to Miranda. Thus, defendant’s allegation that his subsequent Mirandized statement and results from the breathalyzer test were tainted is without merit.

In his second assignment of error, defendant alleged that his sentence of 25 years was unnecessarily harsh and oppressive. Defendant acknowledged that he has an alcohol problem but alleged that society would be better served if his |fisentence was reduced and he was provided rehabilitation. Because his crimes were not crimes of violence, defendant alleged that his sentence was constitutionally excessive.

The record reveals that the trial court noted defendant’s objection to the sentence, even though the defendant did not state specific grounds for his objection. Furthermore, defendant did not file a motion to reconsider his sentence pursuant to La.C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108. See also La.C.Cr.P. art. 881.1.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Warmack, 973 So.2d at 109. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society, and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. Id.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the | flsame court and other courts. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. The appellate court will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.

Here, defendant was convicted of fourth offense driving while intoxicated. Pursuant to La. R.S. 14:98(E), a defendant is subject to a sentence of imprisonment with or without hard labor for not less than ten years nor more than thirty years, with the first two years without benefit of parole, probation or suspension of imposition or execution of sentence. Consequently, defendant was exposed to a sentencing range of ten to thirty years for a conviction of fourth offense driving while intoxicated. Defendant received a sentence of 25 years, which was within the statutory limits.

Based on a review of the record, the defendant’s sentence of 25 years was not constitutionally excessive. The evidence offered at trial showed that defendant was previously convicted of driving while intoxicated on five separate occasions, and was convicted of vehicular negligent injuring within the six years preceding this conviction. The trial court stated on the record that it believed the defendant was “in dire need of a custodial'environment” with the Department of Corrections and he could not believe how many times defendant had decided to get behind the wheel of a vehicle after drinking. The trial court further stated that “any lesser sentence would deprecate the seriousness of this offense,” considering how many times he has been charged and convicted with this same offense.

We find that the trial court did not abuse its discretion in imposing a sentence of 25 years. This assignment of error is without merit.

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

|7The defendant’s sentence is illegally lenient since it fails to impose the mandatory fine as provided for by the statute. La. R.S. 14:98(E) provides that persons convicted of fourth offense or more DWI shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Here, the trial court erred in failing to impose the mandatory fine. Neither the State nor the defendant raised this issue below or on appeal. This court has the authority to correct an illegally lenient sentence despite the fact that neither party has raised the issue. State v. Proctor, 04-1114 (La.App. 5 Cir. 8/29/05), 901 So.2d 477 (citing State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 819, writ denied, 03-2170 (La.1/30/04), 865 So.2d 74). This authority is permissive rather than mandatory. Proctor, supra; State v. Sarrio, 04-89 (La.App. 5th Cir. 5/26/04), 875 So.2d 898, writ denied, 04-1579 (La.11/15/04), 887 So.2d 474. Here, the defendant is indigent and is represented on appeal by the Louisiana Appellate Project. Thus, under the facts of this case, we decline to correct the illegally lenient sentence.

CONCLUSION:

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: HANS J. LILJEBERG, Judge.

text:
    Lionel WILLIAMS v. LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY. Deborah Holmes v. Louisiana Citizens Property Insurance Company.
    Nos. 12-CA-603, 12-CA-604, 12-CA-605.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Joseph M. Bruno, Melissa A. Debarbier-is, Bruno & Bruno, New Orleans, LA, for Plaintiff/Appellant.
    John W. Waters, Jr., Kristin Mosely Jones, Bienvenu, Foster, Ryan & O’Ban-non, New Orleans, LA, Charles M. Hughes, Jr., Rachel P. Catalanotto, Ryan G. Davis, Tally, Anthony, Hughes & Knight, Mandeville, LA, for Defendant/Ap-pellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| gin these consolidated cases, plaintiffs, Lionel Williams and Deborah Holmes, appeal the trial court judgments granting the exceptions of prescription filed by defendant, Louisiana Citizens Property Insurance Corporation (“Citizens”). For the following reasons, we affirm the trial court’s ruling, but we remand to allow plaintiffs the opportunity to amend or supplement their petitions.

FACTS AND PROCEDURAL HISTORY

On August 29, 2005, Hurricane Katrina struck the Gulf Coast area and caused extensive damage to much of southeast Louisiana. In September of 2011, plaintiffs each filed suit against their property insurer, Citizens, for breach of contract and breach of the implied covenant of good faith and fair dealing. Both plaintiffs assert that they suffered damage to their property as a result of Hurricane Katrina and that their damages were covered under their “All Risk” homeowner’s insurance policies issued by Citizens. However, they maintain that despite presenting satisfactory proof of loss sustained as a result of the hurricane, Citizens refused to adequately adjust their claims and make payment of the amount of their claims.

In response to plaintiffs’ petitions, Citizens filed exceptions of prescription in each case, asserting that the claims made by Mr. Williams and Ms. Holmes had prescribed. The exceptions came for hearing before the trial judge on December 20, 2011. At this hearing, counsel for plaintiffs and defendant presented argument, but no testimony or evidence was received by the court. At the conclusion of the 1 shearing, the trial judge orally ruled in favor of Citizens, finding that plaintiffs’ claims had prescribed. He issued reasons for judgment on February 6, 2012. Plaintiffs appeal the judgments granting defendant’s exception of prescription.

LAW AND DISCUSSION

On appeal, plaintiffs set forth the following three assignments of error:

1.Whether the trial court erred as a matter of law in finding that Defendant had met its burden of proof on the issue of prescription, as the face of Plaintiffs’ petition did not show the claim was prescribed but instead alleged various class actions that served to toll prescription with regard to Plaintiffs claims.
2. Whether the trial court erred as a matter of law in granting Defendant’s Exception of Prescription dismissing, with prejudice, Plaintiffs’ Hurricane Katrina claims although Plaintiffs’ suit was not prescribed as they had established that they were putative class members of one or more timely filed class actions, which served to suspend prescription pursuant to LSA-C.C.P. art. 596.
3. Whether the trial court erred as a matter of law in finding that filing of an individual suit results in the forfeiture of the suspension of prescription afforded by the filing of a class action pursuant to LSA-C.C.P. art. 596 and that Plaintiffs’ filing of the instant suit served to “opt out” of the class actions of which they are members.

At a hearing on a peremptory exception of prescription pleaded prior to trial, evidence may be introduced to support or controvert the exception. LSA-C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Taranto v. Louisiana Citizens Property Ins. Corp., 10-105, p. 5 (La.3/15/11), 62 So.3d 721, 726; Carter v. Haygood, 04-646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. However, in the absence of evidence, an exception of prescription must be decided upon the facts alleged in the petition with all of the allegations accepted as true. Cichirillo v. Avondale Industries, Inc., 04-2894, p. 5 (La.11/29/05), 917 So.2d 424, 428.

l/Fhe statutes involving prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Bailey v. Khoury, 04-620, p. 9 (La.1/20/05), 891 So.2d 1268, 1275. The party urging prescription ordinarily bears the burden of proving prescription. Taranto, 10-105 at 5, 62 So.3d at 726. However, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Id.

According to the plain language of LSA-C.C.P. art. 596, a petition brought on behalf of a class suspends prescription as to all members of the class “as described or defined therein.” Duckworth v. Louisiana Farm Bureau Mutual Insurance Co., 11-2835, p. 8 (La.11/2/12), - So.3d -, 2012 WL 5374248. This suspension continues until thirty days after one of three events occurs: 1) a person elects to be excluded from the class by submitting an election form; 2) a person is excluded from the class by the redefinition or restriction of the class (and notice is issued); or 3) the action is dismissed, the demand for class relief is stricken, or class certification is revoked or refused (and notice is issued). Id. The Louisiana Supreme Court has held that the filing of an individual lawsuit, regardless of its timing, does not operate as a request for exclusion from the class and, thus, does not result in the forfeiture of the benefits of suspension provided in LSA-C.C.P. art. 596. Quinn v. Louisiana Citizens Property Insurance Corp., 12-152 (La.11/2/12), — So.3d -, 2012 WL 5374255. See also Harney v. Louisiana Citizens Property Insurance Corp., 12-177 (La.App. 5 Cir. 11/27/12), 106 So.3d 193.

In the present case, no evidence was introduced at the hearing on the exceptions of prescription. Thus, the merits of the exceptions must be decided on the facts set forth in the petition, with all of the allegations accepted as true.

Plaintiffs’ petitions seek damages from Citizens under their homeowner’s insurance policies for damages sustained on August 29, 2005 during Hurricane RKatrina. Act 802 of the 2006 Regular Session of the Louisiana Legislature extended the one-year prescriptive period for the filing of damage claims arising from Hurricane Katrina to August 30, 2007. Mr. Williams and Ms. Holmes did not file their petitions for damages until September 20, 2010, and September 19, 2010, respectively. Thus, plaintiffs’ petitions were not filed prior to the August 30, 2007 deadline for filing Hurricane Katrina damages claims. Accordingly, we must consider whether prescription was interrupted, suspended, or renounced in order to determine if plaintiffs’ claims have prescribed. See Lima v. Schmidt, 595 So.2d 624, 628 (La.1992); and Harris v. Louisiana Citizens Property Insurance Corporation, 12-176, p. 4 (La.App. 5 Cir. 11/30/12), 106 So.3d 207.

Plaintiffs contend that their petitions affirmatively allege facts to show that prescription has been suspended because they were putative class members in eight class action proceedings against defendant. However, a plain reading of plaintiffs’ petitions shows that they did not make such allegations. Rather, the petitions simply state that Citizens was named a defendant in eight listed class actions. Nowhere in the petitions do plaintiffs plead that they were putative members of any class action proceeding. We also note that no class definitions are given in the petition and thus, the classes were not “described or defined” as per LSA-C.C.P. art. 596. Further, there is no mention of whether or not class certification has been granted or denied in these class actions.

To receive the benefit of the suspension of prescription set forth in LSA-C.C.P. art. 596, an individual filing an independent suit must establish three facts: 1) the existence of a timely filed class action proceeding against the defendant; 2) that he or she is a member of the class described or defined in the identified class petition; and 3) that the claims asserted in the independent action arise “out of the transactions or occurrences described” in that petition. Quinn, supra.

^Considering the facts set forth in the petitions and accepting them as true, it is clear that plaintiffs did not establish, or even allege, that they were members of any timely-filed class action proceeding. Thus, their petitions are prescribed on their face, and the burden shifted to plaintiffs to show that their claims have not prescribed. However, plaintiffs did not present any testimony or evidence in support of their position that their claims were timely-filed and viable. Accordingly, we find no error in the trial judge’s ruling granting Citizens’ exceptions of prescription.

In their reply to Citizens’ supplemental brief, plaintiffs ask for the opportunity to supplement and amend their petitions in the event that this Court finds that their petitions “do not adequately support their assertion that class actions served to suspend prescription with regard to their claims” against Citizens. The Louisiana Supreme Court has held that “when a court sustains an exception of prescription, it should permit amendment of the plaintiffs pleadings if the new allegations which the plaintiff proposes raise the possibility the claim is not prescribed, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain.” Quinn, supra, citing Wyman v. Dupepe Construction, 09-817 (La.12/1/09), 24 So.3d 848.

Accordingly, we grant plaintiffs’ request for a remand to allow them the opportunity to amend and supplement their petitions to allege facts that would show that their claims have not prescribed. See also Harris v. Louisiana Citizens Property Insurance Corp., supra. Considering our finding that plaintiffs’ petitions were prescribed on their face and our decision to remand for the plaintiffs to have the opportunity to amend and supplement then-petition, we pretermit discussion of plaintiffs’ remaining issues on appeal.

\ .DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting the exception of prescription filed by Citizens. However, we also-remand the case to the trial court to allow plaintiffs the opportunity to amend and supplement their petition.

AFFIRMED AND REMANDED


text:
    Jack COLLIER d/b/a Collier Construction v. Stephanie LANDRY (also now known as Stephanie L. Wolfe).
    No. 12-CA-718.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Michael A. Britt, Kenner, Attorney at Law, LA, for Plaintiff/Appellee.
    Sandy E. Clause, Attorney at Law, Shreveport, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12Defendant, Stephanie Landry, appeals from a ruling of the trial court denying her Motion to Set .Aside Judgment and for New Trial. For the reasons that follow, we reverse the decision of the trial court.

On April 21, 2011, Jack Collier d/b/a Collier Construction (“Collier”), filed suit against Ms. Landry alleging that he had performed work on her house in the aftermath of Hurricane Katrina and that she had failed or refused to make payment. At this time, Ms. Landry was a resident of Texas and service was made pursuant to Louisiana’s long-arm statute, La. R.S. 13:3201, et seq. After Ms. Landry failed to file an answer to the suit, on December 13, 2011 the trial court rendered a default judgment in favor of Collier for $6,700.00 plus legal interest and costs.

On December 21, 2011, Ms. Landry filed a Motion to Set Aside Judgment and for New Trial, alleging that the judgment was contrary to the law and evidence and that she had not been served with the petition instituting this suit. After the denial of her motion, Ms. Landry filed this appeal, alleging that there was no proof |3of service in the record and that Collier failed to present a prima facie ease to support the default judgment.

DISCUSSION

A final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken. La. C.C.P. art. 2002; Donnelly v. Quatroy, 03-1145 (La.App. 5 Cir. 1/27/04), 866 So.2d 917, 920. A default judgment may not be taken against a person who has not received citation and service thereof. Clay v. Clay, 389 So.2d 31 (La.1979); Louisiana Workers’ Comp. Corp. v. Pro Source Roofing, Inc., 04-1118 (La.App. 1 Cir. 3/24/05), 907 So.2d 113, 115.

Because Ms. Landry was a resident of Texas at the filing of this suit, Collier effected service under Louisiana’s non-resident or “long-arm” statute, La. R.S. 13:3201, et seq. Pursuant to La. R.S. 13:3204, non-resident service requires that a certified copy of the citation be sent by counsel for the plaintiff to the defendant by registered or certified mail. La. R.S. 13:3205 provides that no default judgment can be rendered against a defendant until thirty days after the filing in the record of an affidavit showing compliance with R.S. 13:3204. Corte v. Cash Technologies, Inc., 02-0846 (La.App. 1 Cir. 4/2/03), 843 So.2d 1162, 1165.

All that is necessary to constitute long-arm service upon a non-resident is for counsel to send a certified copy of the citation and petition to the defendant by registered or certified mail. McFarland v. Dippel, 99-0584 (La.App. 1 Cir. 3/31/00), 756 So.2d 618, 622. A litigant may not defeat service by merely refusing to accept a letter containing a citation. Id.

According to the testimony at the confirmation of the default judgment hearing, service was attempted twice, first by mailing to Ms. Landry’s home |4address and second by mailing to her work address. However, while Collier’s attorney stated at the hearing that the letter of service mailed to Ms. Landry’s home was returned “unclaimed,” he failed to file an affidavit attesting to the same thirty days before the rendition of the judgment. In addition, he failed to present evidence that he sent a copy of the citation to Ms. Landry’s home at the hearing resulting in the default judgment. Collier introduced this evidence for the first time at the hearing on Ms. Landry’s motion to set aside the default judgment.

The proof of service presented at the default hearing by Collier consisted of an affidavit stating that the petition was sent by certified mail to Ms. Landry’s place of employment and that the certified mail receipt was marked “refused.” However, a valid long-arm service of process cannot be effected on a defendant by sending a certified copy of the citation and petition to defendant’s place of employment by certified mail. Drago v. Drago, 477 So.2d 786, 788 (La.App. 5 Cir. 10/10/85).

At the time of the default hearing, Collier did not provide proof of service sufficient to support the default judgment pursuant to La. R.S. 13:3204 and 13:3205. Collier cannot offer the evidence to support the default judgment for the first time at a hearing to set aside that judgment. Accordingly, Ms. Landry’s motion to set aside the default judgment was well-founded. We find that the trial court erred in failing to grant Ms. Landry’s motion to set aside the judgment of default.

Because we find that the default judgment should be annulled for failure to prove valid service of process, we do not reach Ms. Landry’s allegation that the evidence introduced at the default hearing failed to support a prima facie case.

^CONCLUSION

For the above discussed reasons, the decision of the trial court denying defendant’s motion to set aside the judgment of default rendered on December 13, 2011 is reversed and the matter is remanded for further proceedings.

REVERSED


text:
    KMJ SERVICES, INC. v. Tom HOOD, Ellsworth Corporation, Imperial Credit Corporation, Gulf Coast Marine, LLC, Procentury Insurance Company, XL Specialty Insurance Company, New York Marine & General Insurance Company, Lloyd’s of London, the Northern Assurance Company of America, and Markel American Insurance Company.
    No. 12-CA-757.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      George B. Recile, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Robert C. Clotworthy, Christopher M. Hannan, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|aKMJ Services, Inc. (“KMJ”) appeals the granting of summary judgment in favor of Gulf Coast Marine, L.L.C. (“GCM”), finding that GCM had properly cancelled the insurance policies issued to KMJ. We affirm.

FACTS:

In early 2010, KMJ, through its president, Brad Blanchard, requested Ells-worth Corporation (“Ellsworth”), specifically through Tom Hood, KMJ’s agent, to procure insurance policies to cover its various marine vessels and operations. Ells-worth contacted Gulf Coast Marine, L.L.C., a wholesale broker, to place the necessary coverage since the request involved surplus lines/marine insurance, which cannot be provided through customary domestic insurance providers.

GCM, as a wholesale broker, had the authority to bind certain underwriters in the London Insurance Market (“pool insurers”). Also, its relationship with other foreign and domestic insurers (“non-pool insurers”) enabled GCM to supplement coverage that could not be fulfilled through the pool insurers. In May 2010, GCM, acting as agent on behalf of the insurers, obtained coverage with assigned percentage of risk through various underwriters and issued two policies of insur-anee to KMJ. Policy Number GCM21662 provided KMJ with ^Comprehensive General Liability coverage and Policy Number GCM10581 provided Hull and Machinery, Excess of Loss, Increased Value, Protection and Indemnity, Pollution, Bumber-shoot and Excess Bumbershoot, which is commonly referred to as the “Marine Package Policy.” GCM received a Notice of Acceptance which identified Imperial Credit Corporation (“ICC”) as the premium finance company that would be making premium payments on the two policies, on behalf of KMJ.

The premium finance agreement signed by KMJ and ICC contained a valid and binding power of attorney. The power of attorney conferred on ICC the ability to cancel the insurance policies listed in the Schedule of Financed Policies in the event that KMJ defaulted on payment of insurance premiums to ICC. ICC’s internal policy when handling multi-insurer policies was to only list the lead underwriters with the highest percentage of risk under each category.

KMJ failed to make the first scheduled payment under the premium finance agreement, and ICC sent notice of cancellation to the insured, KMJ, its agent (Ells-worth), agent of insurers (GCM), and the insurers listed on the Schedule of Financed Policies. As a result of the Notice of Cancellation, GCM cancelled the two policies it had issued to KMJ.

KMJ filed suit, alleging that GCM improperly cancelled policies that were not listed on the Schedule of Financed Policies. As a result, KMJ sustained damages for lost profits from the inability to perform clean-up work after the oil spill. GCM filed a motion for summary judgment which was granted. This appeal followed.

LLAW AND ANALYSIS:

When reviewing a trial court’s grant of a motion for summary judgment, a de novo standard of review is applied. Flowers v. Wal-Mart Stores, Inc., 12-140 (La.App. 5 Cir. 7/31/12), 99 So.3d 696 (citation omitted). In summary judgment there is no live testimony or determination of credibility of evidence by the trial court. La. C.C.P. art. 966 B(2); Rapp v. City of New Orleans, 95-1638 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, rehearing denied, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. Therefore, courts of appeal apply the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.

Generally, in a motion for summary judgment, the mover retains the burden of proof. After adequate discovery, if the mover sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse party’s claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentia-ry burden at trial. La. C.C.P. art. 966 C(l) & (2). Subsequently, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966 C(2). Robinson v. Jefferson Parish Sch. Bd. 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, citing, Champagne v. Ward, 03-3211 p. 5 (La.1/19/05), 893 So.2d 773, 776-77.

| BLa. R.S. 9:3550 governs the regulation of premium finance companies. Premium finance agreements are agreements entered into by an insured with a premium finance company wherein the insured promises to pay the premium finance company the amount advanced or to be advanced to an insurer, or an insurance broker or agent for payment of premiums on an insurance policy. La. R.S. 9:3550(B)(4).

La. R.S. 9:3550(G) allows a premium finance agreement to contain a power of attorney enabling the premium finance company to cancel any insurance policy when an insured defaults on payments and the premium finance company elects to exercise that authority to effect cancellation of an insurance policy. Stephens v. LeBlanc, 03-1460 (La.App. 1 Cir. 5/14/04), 879 So.2d 262, 264; Hunter v. Automotive Cas. Ins. Co., (La.App. 5 Cir. 9/29/92), 606 So.2d 571, 574, writ denied, 609 So.2d 225.

There must be strict compliance with the following conditions to allow cancellation of an insurance policy under La. R.S. 9:3550(G):

(1) the debtor/insured has defaulted on the premium finance contract;
(2) there is a power of attorney clause in the debtor’s contract with the premium finance company;
(3) the premium finance company has mailed notice of cancellation to the insured and the insured’s insurance agent;
(4) either the premium finance company or the insurer has notified any mortgagee, governmental agency, or other interest third party indicated by the policy and;
(5) after a ten day delay in which the debtor had not made a payment, the premium finance company sent a copy of the notice of cancellation to the insurer, with a statement certifying compliance with 9:3550(G)(3).

Hodges v. Colonial Lloyd’s Ins., (La.App. 1 Cir. 6/20/89), 546 So.2d 898, 902.

The record reveals that, after adequate discovery was conducted, the following facts are undisputed. The insured, KMJ, defaulted on the premium finance contract, which included a valid power of attorney provision. The premium finance company, ICC, mailed notice of cancellation to the insured, KMJ, and the insured’s agent. KMJ failed to make the payment to cure the default. KMJ received all notices and all notices included the necessary certificate certifying compliance with La. R.S. 9:3550 G(3). At all times, GCM was the authorized wholesale broker and agent for all the underwriter insurers who provided varying coverage with different percentage of risk. Notice of cancellation was sent to GCM as the wholesale broker and agent of all insurers under the two policies issued to KMJ. Per agreements with the pool insurers, GCM was authorized to bind the insurers within certain limits and for specific types of coverages, quote premiums, issue policies for such coverage, and handle claims on behalf of the pool insurers. GCM supplemented coverages under the two policies with non-pool insurers. As the wholesale broker for the non-pool insurers, GCM was authorized to confirm coverage, issue binders and certificates of insurance, accept notices of loss and proofs of loss, send the insured notices of cancellation, and receive notices of cancellation from the insured. GCM issued two policies of insurance to KMJ, the Comprehensive General Liability Policy (GCM21662) and the Marine Package Policy (GCM10581). At no time did GCM meet with, speak to, respond to questions from, or directly communicate in any way with KMJ concerning the insurance coverages under the two policies.

ASSIGNMENT OF ERROR NO. 1:

In its first assignment of error, KMJ argues that GCM knew that ICC’s cancellation was ineffective because GCM knew the notice had not been sent to all |7of the insurers providing coverage, namely, Indemnity Insurance of America, Catlin Insurance Co., Markel American Insurance Company and Federal Insurance Company. Thus, GCM’s cancellation of coverage issued to these non-pool insurers was improper because not all insurers received notice of cancellation.

The record and evidence established that GCM was the wholesale broker and agent for the pool insurers and for those insurers not listed on the notice of cancellation (non-pool insurers). GCM therefore had authority to accept notice of cancellation on behalf of the pool insurers (listed) and the non-pool insurers (not listed). KMJ has not challenged GCM’s status as wholesale broker and agent for all of the insurers and this issue was not appealed.

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La. C.C. art. 2989. The mandatary may perform all acts that are incidental to or necessary for the performance of the mandate. La. C.C. art. 2995. The authority granted to a mandatary to perform an act that is ordinarily part of his profession or calling, or an act that follows from the nature of his profession or calling need not be specified. Id. Generally, an agent is one who acts for or in the place of another by authority from the latter. Guidry v. The Hanover Insurance Company, 09-220 (La.App. 5 Cir. 11/10/09), 28 So.3d 426, 429 (citation omitted). An agency relationship may be either expressed or by implied appointment arising from apparent authority. Id.

“Whether an insurance broker, in a transaction, is acting as an agent of the insured or the insurer in a transaction is a question of fact to be determined from the particular circumstances of the case.” McManus v. S. United Fire Ins., 00-1346, p. 6 (La.App. 3 Cir. 3/21/01), 801 So.2d 392, 396-97, citing Tiner v. Aetna Life Ins. Co., 291 So.2d 774 (La.1974); Duhon v. Mid-American Cas. Co., 553 So.2d 1100, 1102 (La.App. 3 Cir.1989). While the determination of whether a duty exists is a question of law, in the instant case, the determination depends on the agency relationship between and among all the parties.

The evidence supported a finding that an agency relationship exists between GCM, the wholesale broker and agent, and the underwriter insurers and therefore, GCM had authority to issue binders and accept notice on behalf of the insurers. GCM has had an ongoing relationship with the insurers. GCM’s status was as the wholesale broker and agent of all insurers underwriting the two policies. GCM, as the undisputed wholesale broker and agent, had authority from all these insurers to accept notice of cancellation. La. R.S. 9:3550(G) does not prohibit notice of cancellation to an insurer through an authorized wholesale broker or agent for the insurer. The notice of cancellation sent by ICC to GCM and received by GCM was notice to all the insurers under the two policies pursuant to wholesale broker and agency relationship established through agreements between GCM and all the insurers. Additionally, La. R.S. 9:3550 does not require ICC to list all the insurers for underlying coverage in this type of insurance policy because as a marine package policy, multiple insurers are often used to cover the various percentages. The fact that all insurers were not listed on the Schedule of Financed Policies and not individually sent notice of cancellation is immaterial because it is undisputed that GCM had authority to receive notice of cancellation, and in fact, received all the requisite notices and cancelled the two policies.

Furthermore, the premium finance agreement is between KMJ and ICC. GCM had no knowledge or input in the content of the agreement between those parties. The premium finance agreement was executed and issued on May 12, 2010. At that time KMJ, through its agent, Ells-worth, was still working with GCM to adjust the various percentages of risk and insurers. Thus, KMJ was clearly |9aware that not all insurers were fisted on the premium finance agreement. There is no evidence in the record that KMJ objected to the omission of those insurers on the premium finance agreement. Additionally, Heidi Sternberg, an ICC employee, testified in her C.C.P. 1442 deposition that it was the internal policy of ICC, when dealing with multiple insurers under one policy, to only fist the lead insurer that has the highest percentage of risk. KMJ has failed to offer any evidence to dispute this testimony.

Considering the reasons stated above, we find that the trial court did not err in finding notice of cancellation to GCM, as wholesale broker and agent, was sufficient notice to all insurers, listed or not fisted on the Schedule of Financed Policies pursuant to La. R.S. 9:3550.

ASSIGNMENT OF ERROR NO. 2:

In its second assignment of error, KMJ argues that ICC’s power of attorney only authorized cancellation of coverage fisted on the Schedule of Financed Policies. KMJ alleges that because GCM used the power of attorney to cancel coverages not fisted on the Schedule of Financed Policies, GCM improperly cancelled coverages issued to KMJ and as a result, KMJ sustained damages.

The premium finance agreement provides in pertinent part:

“in consideration of the premium payments being finance, and if applicable down payment being advanced by Premium Financing Specialists, Inc. (“LENDER”) to the Insurance companies fisted on the SCHEDULE OF FINANCED POLICIES, or their representative, promises to pay to the order of LENDER the TOTAL OF PAYMENTS to be made in accordance with the PAYMENT SCHEDULE and if applicable, the amount of any down payment advanced by LENDER subject to the provisions set forth in this Agreement.”

The agreement further provides that KMJ:

“Irrevocably appoints LENDER Attorney-in-Fact with full authority, in the event of default, to (i) cancel the said policies in accordance |inwith the provisions herein, (ii) receive all sums assigned to LENDER, and (iii) execute and deliver on behalf of the undersigned all documents, forms and notices relating to the insurance policies listed on the SCHEDULE OF FINANCED POLICIES in furtherance of this Agreement.”

KMJ argues that the language is clear and GCM’s authority to cancel coverage, if any, is limited to those insurers listed on the Schedule of Financed Policies. In this case, the Schedule of Financed Policies only listed Pro-Century Insurance Company, XL Specialty Insurance Company, New York Marine & General Insurance Company, and Lloyd’s of London. Thus, KMJ contends GCM only had authority to cancel the listed coverages, and no authority to cancel the remaining coverages that were not listed. As a result, cancellation of all coverages was improper.

The language used in La. R.S. 9:3550 makes clear that the statute deals with cancellation of policies in toto, not cancellation of coverages for percentage of risk by different underwriter insurers under the two policies. Additionally, under the terms of the premium finance agreement, representatives of insurers can be listed instead of the insurers and the agreement refers to policies, not specific coverages under a policy. Furthermore, the premium finance agreement only lists two policies and two policy numbers, the Comprehensive General Liability policy (GCM21662) and the Marine Package Policy (GCM10531).

Here, GCM cancelled the two policies listed on the premium finance agreement. As the wholesale broker and agent of all the underwriter insurers, GCM had authority to receive and accept the notice of cancellation on behalf of the non-listed insurers. The language of La. R.S. 9:3550 does not preclude receipt of notice of cancellation to an insurer through an insurer’s authorized agent.

| ^Accordingly, for the reasons stated above, we find no error in the trial court’s finding that GCM did not improperly cancel the two insurance policies, and that GCM is entitled to judgment as a matter of law. Costs of this appeal are assessed against the appellant.

AFFIRMED

      . The trial court granted summary judgment in favor of ICC finding that the premium finance agreement contained a valid and binding power of attorney. KMJ has not appealed this judgment.

      . KMJ initially filed suit against ICC, several named underwriter insurers, Ellsworth, Tom Hood and GCM. The trial court previously granted summary judgment in favor of ICC and the named underwriter insurers, dismissing KMJ's case against them. Those judgments have not been appealed by KMJ. Ells-worth and Tom Hood remain defendants in the case.

      . At the hearing before the trial court, the parties acknowledged that the premium finance agreement is governed by the Laws of New York regarding cancellation. Plaintiff, KMJ, argued that GCM violated those provisions of the New York statute. KMJ failed to cite any applicable New York statute or jurisprudence to support his argument. KMJ argued, and GCM agreed, that the provisions set forth in La. R.S. 9:3550 are essentially the same as New York law. Subsequently, both parties, as well as the trial court, exclusively relied on Louisiana law to determine if cancellation was proper. Accordingly, this court will make no ruling on this appeal as to the application of New York law and will review all issues on appeal pursuant to Louisiana law.