text:
    STATE of Louisiana v. Brian SEGURA.
    No. 13-398.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Hon. J. Phillip Haney, District Attorney, Sixteenth Judicial District Court, Angela B. Odinet, Assistant District Attorney, St. Martinville, LA, for Appellee, State of Louisiana.
    Susan K. Jones, Attorney at Law, Gonzales, LA, Stephen J. Haedicke, The Law Offices of Stephen J. Haedicke, LLC, New Orleans, LA, Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Brian Segura.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

|T Defendant, Brian Segura, was charged by grand jury indictment with two counts of aggravated kidnapping, violations of La. R.S. 14:44, and one count of armed robbery, a violation of La.R.S. 14:64. At the sentencing hearing, the State summarized its charges as follows:

[Defendant] victimized a young mother and her young child, kidnaped them at knifepoint, tied the mother up, [and] robbed them of money that she was supposed to withdraw from the ATM machine.

On October 6, 2011, four days before the trial, the local newspaper, The Daily Iberian, ran a disparaging story about Defendant. On the same day, a local television station, KATC, ran several segments derivative of the newspaper article. On October 7, 2011, Defendant filed a “Motion for Change of Venue on Basis of Pretrial Publicity.” Subsequently, on October 10, 2011, Defendant filed a “Motion for Individual Sequestered Voir Dire on Publicity.” On that same date, the trial court heard argument and testimony regarding the motion for change of venue.

The trial court, however, decided to rule on the motion for change of venue after the jurors were questioned individually during voir dire. After jury selection, the trial court denied the motion for change of venue, noting that a jury had been selected.

Defendant was found guilty as charged and was sentenced to life imprisonment at hard labor without benefits on each count of aggravated kidnapping and fifty years at hard labor without benefits on the armed robbery conviction. The trial court ordered the sentences to run concurrently with one another, but consecutively to sentences imposed against Defendant in Iberia and Lafayette Parishes as well as any other sentence Defendant was currently serving.

| ¡¿Defendant assigns two errors, both of which spring from the pretrial publicity. Namely, he complains of the trial court’s denial of his motion to change venue and the trial court’s denial of several juror challenges for cause.

CHANGE OF VENUE

Defendant argues that he was denied the right to a fair trial by the trial court’s refusal to grant his motion for change of venue. The jury pool, Defendant argues, was “irrevocably tainted through intensive media coverage of his alleged crimes shortly before trial.” Defendant asserts that he introduced three media items that appeared in the local press in the four days before his trial began on October 10, 2011.

First, the defense introduced an article that appeared in the Daily Iberian on Thursday, October 6, 2011 entitled “Murder Confession.” After recounting details of the seven-year-old murder of Carrie Billeaud, the newspaper article quoted Iberia Parish Sheriff, Louis Ackal, as stating that Defendant finally cooperated in the murder investigation of Billeaud when he was threatened with the “needle.” Before that time, Defendant had led the detectives to several “ghost locations” in search of evidence, costing the parish about $136,000 in materials and labor. Once Defendant finally cooperated, detectives located the baseball bat used in the murder as well as the stolen money bags inside a shed belonging to Defendant’s mother. The newspaper article also quoted Sheriff Ackal as stating that Defendant admitted to killing Billeaud, and admitted to thinking of killing the woman that he kidnapped (but did not because of the child in the car). The newspaper article also quoted Sheriff Ackal’s statement that Defendant was the ringleader of an incident in jail wherein a deputy was taken hostage and stabbed. According to Sheriff Ackal, Defendant admitted to wanting to kill the deputy.

|,-¡Second, Defendant introduced clips from several KATC news segments that aired on October 6, 2011. In the clips, KATC quoted Sheriff Ackal’s statement in the Daily Iberian regarding Defendant’s confession to the Billeaud murder, posted a picture of Defendant, quoted Sheriff Ackal as stating that Defendant was a person of interest in the Billeaud murder, and stated that Sheriff Ackal denied the interview with the Daily Iberian. In one of the segments, KATC also mentioned that Defendant was involved in a hostage situation at the jail and that Defendant would be going to trial the following Monday on aggravated kidnapping and armed robbery charges. Finally, KATC stated that no arrests had been made in the Billeaud murder and showed footage of one of Billeaud’s relatives crying because of her death.

Lastly, Defendant introduced an article that was printed on Sunday, October 9, 2011, in the Daily Iberian newspaper. This article stated that Defendant’s attorney had filed a motion for change of venue because of the inflammatory remarks made by Sheriff Ackal and the District Attorney, which were printed in the Daily Iberian and reported by KATC. The Sunday article mentioned Sheriff Ackal’s statement, printed in the Thursday article, that Defendant confessed to the Billeaud murder. The Sunday article also mentioned the facts surrounding the present charges of aggravated kidnapping and armed robbery, as well as the hostage and stabbing incident at the Iberia Parish Jail. Notably, while Defendant introduced this article in support of the motion for change of venue, defense counsel stated that “It is not our inclination that the article printed in the Sunday paper tainted the jury.”

Thus, we are left to consider the possible effects of a single newspaper article and several T.V. news segments, all of which derived from that newspaper ^article, and all of which were broadcast on a single day very shortly before the jury was selected.

In a recent case, the Louisiana Supreme Court set forth the law regarding a change of venue:

The right to an impartial jury and a fair trial is guaranteed to every defendant. See La. Const, art. I, § 16; State v. Sparks, 88-0017, p. 15 (La.5/11/11), 68 So.3d 435, 456, cert. denied, — U.S. —, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012); State v. Lee, 05-2098, p. 32

(La.1/16/08), 976 So.2d 109, 132; State v. Bell, 315 So.2d 307, 309 (La.1975). To effect this guarantee, the law provides for a change of venue when a defendant establishes that he or she will be unable to obtain an impartial jury or a fair trial at the place of original venue. Sparks, 88-0017 at 15, 68 So.3d at 456; Lee, 05-2098 at 32, 976 So.2d at 132; Bell, 315 So.2d at 309.

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

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

In exceptional circumstances, prejudice against a defendant may be presumed. See State v. David, 425 So.2d 1241, 1246 (La.1983) (“[Ujnfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob.”) Otherwise, it is the defendant’s burden to demonstrate actual prejudice. State v. Manning, 03-1982, p. 7 (La.10/19/04), 885 So.2d 1044, 1061; State v. Vaccaro, 411 So.2d 415, 423-24 (La.1982).

State v. Magee, 11-574, pp. 10-11 (La.9/28/12), 103 So.3d 285, 298, cert. denied, — U.S. —, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).

|sIn State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810, the supreme court found the trial atmosphere not utterly corrupted by press coverage when two newspaper articles recounted the basic facts surrounding the crime, and one newspaper article mentioned the fact that the defendant was involved in another murder. Additionally, details concerning the murder for which the defendant stood trial were aired on radio and television. Connolly differs from the present case in that the articles in Connolly were printed several months to a couple of years prior to trial. The articles in the present case were printed only a few days before trial.

Despite this distinction, we do not presume prejudice in the present case. The supreme court in Magee did not presume prejudice despite the fact that the media coverage in Magee resumed in the days immediately preceding Magee’s trial. Furthermore, in State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert, denied, 555 U.S. 824,129 S.Ct. 143,172 L.Ed.2d 39 (2008), the Louisiana Supreme Court did not presume prejudice in a case where the defense introduced thousands of print and media stories regarding the search for the South Louisiana Serial Killer, including media stories that covered Lee’s conviction in another case. The media coverage in the present case, like the media coverage in Connolly, Lee, and Magee, did not utterly corrupt the trial atmosphere.

We did, however, compare Connolly, Lee, and Magee to Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417,10 L.Ed.2d 663 (1963), where prejudice was presumed when Rideau’s twenty-minute “confession” was aired three times on television in the community where the crime and trial took place, and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), where trial was conducted in a circus atmosphere with members of the press being allowed to sit within the bar of the court and overrun the courtroom with television equipment. The distinctions we discerned from our | (¡comparison are obvious and manifest. They serve only to confirm our decision not to presume prejudice.

Without the presumption of prejudice, Defendant has the burden to demonstrate actual prejudice. See Magee, 103 So.3d 285. The Louisiana Supreme Court set forth the following criteria that must be met for the defendant to meet his burden of proving actual prejudice:

To meet this burden, a defendant must prove more than mere public knowledge or familiarity with the facts of the case: he must demonstrate the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case. State v. Clark, 02-1463, p. 18 (La.6/27/03), 851 So.2d 1055, 1071; State v. Frank, 99-0553, p. 14 (La.1/17/01), 803 So.2d 1, 15. A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue simply by showing a general level of public awareness about the crime; rather, he must show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. Clark, 02-1463 at 17, 18, 851 So.2d at 1070, 1071. Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the district court’s sound discretion which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion. Sparks, 88-0017 at 16-17, 68 So.3d at 457; Lee, 05-2098 at 33, 976 So.2d at 133; Clark, 02-1463 at 17, 851 So.2d at 1071.
In Bell, supra, this court enumerated several factors relevant to the district court’s determination of whether to order a change of venue. These factors include: (1) the nature of pretrial publicity and the degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. Bell, 315 So.2d at 311. In setting out these factors, this court emphasized that in deciding whether to change venue, the district court must extend its focus beyond the prejudices and attitudes of individual venire persons. The defendant must be allowed to show that, even if it would be possible to select a jury whose members were not subject to a challenge for cause, prejudice or influences exist within the community at large that would affect the juror’s answers during voir dire or the witnesses’ testimony, or that for any other 17reason, a fair and impartial trial could not be obtained in that venue. Clark, 02-1463 at 16-17, 851 So.2d at 1070; Bell, 315 So.2d at 313. The district court’s ultimate determination must rest on the community’s attitude toward the defendant. Clark, 02-1463 at 17, 851 So.2d at 1075.
In reviewing a denial of change in venue, the primary task of the court is to inquire as to the nature and scope of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial in order to ascertain whether prejudice existed in the minds of the public which prevented the defendant from receiving a fair trial. Clark, 02-1463 at 18, 851 So.2d at 1071. In performing this review, courts must distinguish largely factual publicity from that which is invidious or inflammatory, as the two present real differences in the potential for prejudice. Id. While, ultimately, there is no bright line test for ascertaining the degree of prejudice existing in the collective mind of the community, the seven Bell factors help facilitate the inquiry. Sparks, 88-0017 at 18, 68 So.3d at 457; Frank, 99-0553 at 16, 803 So.2d at 16. In addition, courts have examined the number of jurors excused for cause for having a fixed opinion as another gauge of whether prejudice exists in the public mind. Clark, 02-1463 at 18, 851 So.2d at 1071; Frank, 99-0553 at 15, 803 So.2d at 15.

Id. at 298-99. After considering each of the Bell factors, the court in Magee found no abuse of discretion in the trial court’s denial of Magee’s motion for change of venue. Following the supreme court’s example in Magee, we will address the applicability of each of the Bell factors to the present case.

Nature and Degree of Publicity

As discussed above, Defendant introduced two newspaper articles and clips of several news segments from KATC in support of his motion for change of venue. In addition to claiming that the substance of both the newspaper article and the news segments were “highly inflammatory and particularly invidious,” Defendant argues that if such other crimes had been mentioned during the course of his trial, the Code of Criminal Procedure would have mandated an automatic mistrial. However, as the United States Supreme Court stated in Murphy v. \ ¡Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), “juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone” do not presumptively deprive the defendant of due process. Rather, the “totality of circumstances” must be examined to determine whether the defendant received a fair trial. Id. See also Connolly, 700 So.2d, 810, where the supreme court did not presume prejudice simply because a newspaper article mentioned the fact that Connolly was involved in an unrelated murder.

Some of the information printed in the newspaper and aired on KATC was emotionally charged. However, even though the supreme court in Magee found some of the information employed by the media in that case emotionally charged, the inquiry did not end. The supreme court then looked to the record of the voir dire examination: “[T]he record demonstrates that of the 63 prospective jurors examined concerning their familiarity with the case, approximately 43% responded they had some exposure to it.” Magee, 103 So.3d at 300. In the present case, of the sixty prospective jurors examined, twenty-four jurors (40%) responded that they had some exposure to the case prior to trial. Discussing the 43% of jurors exposed to the case in Magee, the supreme court stated the following:

This percentage is comparable to, and in some instances considerably smaller than, that present in other cases in which this court has found no abuse of discretion in a district court ruling denying a motion for change of venue based on the number of prospective jurors familiar with the facts of the case. See, e.g., Lee, 05-2098 at 34, 976 So.2d at 133 (123 of 125 prospective jurors (98.4%) were “at least vaguely familiar” with the case through media accounts or informal private conversations); Clark, 02-1463 at 21, 851 So.2d at 1073 (78 of 124 13venire members (62.9%) responded that they had “some exposure” to the case); Frank, 99-0553 at 16-17, 803 So.2d at 16-17 (110 of 113 venire members (97.3%) had been exposed to “some kind of publicity surrounding the case” while 89% of the prospective jurors indicated that they had been exposed to information about the case on more than one occasion or from multiple sources); State v. Hoffman, 98-3118, p. 9 (La.4/11/00), 768 So.2d 542, 555 (72 of 90 prospective jurors (80%) “had awareness of the case before trial”); State v. Connolly, 96-1680, p. 5 (La.7/1/97), 700 So.2d 810, 815 (although 120 of 139 potential jurors (86.33%) possessed some knowledge of the crime, most had only a vague recollection of the surrounding facts).

Magee, 103 So.3d at 300-01. Likewise, the 40% of jurors exposed to pre-trial coverage in the present case is comparable to, and in most cases considerably smaller than, the percentage present in other cases wherein the supreme court found no abuse of discretion in the denial of a motion for change of venue.

In Magee, the supreme court further noted:

Moreover, of the 27 prospective jurors who expressed some knowledge of the case, most had only a vague recollection of the events, consisting largely of factual information, ie., that the incident arose out of a domestic dispute and involved the shooting of the accused’s wife and children. And, those who actually served on the jury assured the court they would be able to decide the case based solely on the evidence presented at trial.

Id. at 301. Applying this same analysis to the present case, we note that of the twenty-four prospective jurors who expressed some knowledge of the case, fifteen expressed only a recollection of media coverage or Defendant’s involvement in the kidnapping, Billeaud murder, and jail hostage situation. Five of those jurors heard about the case through conversations with other people and not by reading the newspaper or watching the news. Only nine of the sixty jurors admitted to knowing details of the pertinent events or expressed concern with being able to put their knowledge aside. None of these nine jurors served on the jury.

Each of the twenty-four prospective jurors who expressed some knowledge of the case through pre-trial exposure was questioned individually by the trial | Tncourt, the State, and the defense. The trial court excused six of the sixty prospective jurors (10%) because of their exposure to pretrial publicity about the case. This court has recognized that the number of juroi’s excused for cause due to having a fixed opinion because of pre-trial publicity is a factor to be considered in determining whether prejudice existed. State v. Hund-ley, 99-1156 (La.App. 3 Cir. 3/22/00), 760 So.2d 417. In Hundley, fifteen of sixty prospective jurors (25%) were excused for cause based on pre-trial publicity. The court in Hundley found that this percentage was “in line” with other cases wherein a change of venue was unnecessary. Id. at 421. In one such case, Murphy, 421 U.S. at 803, 95 S.Ct. 2031, the United‘States Supreme Court found that a percentage of 26% (twenty of seventy-eight) of prospective jurors excused for having an opinion about the defendant’s guilt “by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.” Likewise, the 10% of jurors excused because of their exposure to pre-trial publicity in the present case does not suggest a community with sentiment poisoned against Defendant.

The trial court denied six of the challenges for cause made by Defendant because of a juror’s exposure to pre-trial publicity. As discussed in the next assignment of error, however, all of these jurors, including the two that ended up serving on the jury, indicated that they could be fair and had not formed an opinion about Defendant’s guilt or innocence.

Connection of Government Officials with Publicity

As to this factor, we must agree with Defendant. Upper-level Iberia Parish officials were clearly connected with the newspaper article. It is beyond doubt that two of the reporter’s sources were the Iberia Parish Sheriff and the Sixteenth | n Judicial District Attorney. In addition, the reporter spoke with the public information officer for the sheriffs office more than once in connection with his story. At the hearing, the reporter, Patrick Flanagan, stood by his story and the quotes therein.

The State attempts to mitigate this by pointing out that the sheriff testified that he had been misquoted and did not permit the publication; District Attorney Bofill “Bo” Duhe testified as to his belief that he was speaking “off the record” and the information officer, Captain Ryan Turner, testified that he had been left with the impression that the story would not run in the newspaper. Furthermore, Defendant candidly admits that the trial court did not make a “specific credibility finding” regarding anything related to the subject news account.

The State’s attempt to blunt this potential pitfall, though, misses the point. Regardless of who was on the record, who was accurately quoted, and whether the reporter had the proper permission to run his story, the story did run. And it ran with damaging assertions of fact and with damaging attributions of quotations. Flanagan even testified that on several prior occasions, Duhe requested he not run a story on the eve of a criminal trial for fear of potentially tainting the jury pool. It does, then, weigh in favor of a change of venue, but only up to a point.

While the contents of this newspaper article (and the additional press coverage it spawned) certainly left a negative impression of Defendant with anyone who read it, it still was but one news item. It does not establish the existence of such prejudice in the collective mind of the community that a fair trial is impossible. Moreover, it does not equate to the “actual prejudice” that must be proven by Defendant.

_[^Length of Time Between Publicity and the Trial

It is uncontested that the newspaper articles and the news broadcasts at issue were printed and aired only a few days prior to trial. Defendant argues that this factor weighs heavily in his favor since the publicity was fresh in the community’s mind. In Magee, the defendant complained that the media coverage of the crime resumed in the days immediately preceding the commencement of trial:

For example, the defendant cites to a news article appearing on the front page of the newspaper on October 10, 2009, two days before voir dire examinations commenced and to the district court’s own admission that it had viewed television coverage of the case on the morning of October 12, 2009.

Magee, 103 So.3d at 302, n. 8. Despite the news coverage days before trial, the supreme court focused on the fact that the trial court repeatedly cautioned jurors against exposing themselves to television, internet, newspapers, radio, and “anything of that nature.” Id. at 302. The supreme court also noted that the trial court instructed the jurors that their decision must be based solely on what they saw and heard in the courtroom and allowed defense counsel to question each juror individually as to his or her exposure to media coverage. The supreme court further stated:

All of the jurors who served on the defendant’s jury confirmed they would be able to put aside any information they gleaned from outside sources and decide the case only on the evidence presented. As a result, the defendant has failed to demonstrate that the length of time between any pre-trial publicity and the date of his trial affected his right to an impartial jury.

Id.

In the present case, the trial court issued a gag order the day before jury selection began. The trial court stressed the basic rule that the case must be 1 isdecided only on evidence presented in the courtroom. The trial court also admonished the jury not to communicate with anyone about their jury service and not to read the newspaper, not to watch the news about any cases, and not to seek out information about any cases. Furthermore, each of the jurors who were exposed to pre-trial media coverage and actually served on the jury stated that they had not formed an opinion about Defendant’s guilt or innocence or would be able to decide the case based only on the facts presented in the courtroom. Thus, as the court in Ma-gee determined, Defendant in the present case has failed to demonstrate that the length of time between the pre-trial publicity and the date of his trial affected his right to an impartial jury.

The Severity and Notoriety of the Offense

Defendant argues that this factor weighs in favor of a change of venue since all of the crimes alleged against him were both severe and notorious in the community. Defendant notes that “[s]ome potential jurors testified that hearing about Mr. Segu-ra’s crimes caused them to be concerned about their safety just venturing out into the community, and others testified that they had heard about the alleged crimes from discussions at work or with friends.” In analyzing this factor, the supreme court in Magee pointed out that Magee’s case was not the first capital case to be tried in St. Tammany Parish. Additionally, the court noted, Magee’s case did not receive any more notoriety than other capital cases. Thus, the supreme court held, “the publicity received by the present case does not appear unprecedented.” Id. at 303.

Applying this same analysis to the present case, several murder and aggravated kidnappings have been committed in Iberia Parish. In State v. Authorlee, 12-1179 (LaApp. 3 Cir. 4/3/13), 111 So.3d 1170, the defendant was |14convicted of killing an Iberia Parish woman by cutting her throat from ear-to-ear with an incision deep enough to sever her throat and jugular vein and deep enough to leave a tool mark on her back vertebra. In 2012, Defendant in this case was convicted of the aggravated kidnapping and armed robbery of a deputy while Defendant was housed at the Iberia Parish Jail. State v. Segura, 12-899 (LaApp. 3 Cir. 3/6/13), 129 So.3d 76, 2013 WL 811666. In State v. Francisco, 12-455 (LaApp. 3 Cir. 11/7/12), 101 So.3d 617, writ denied, 12-2654 (La.5/31/13), 118 So.3d 388, the defendant and a co-defendant entered a pawn shop in Iberia Parish, shot and killed the owner of the pawn shop, and stole some guns. Further, in State v. Williams, 01-998 (LaApp. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59, the defendant was convicted in Iberia Parish of aggravated burglary and second degree kidnapping when he entered the victim’s home through a window, covered the victim with a blanket, took the victim’s money and car keys, forced the victim into the trunk of her car, and left her there until she was discovered the following morning. Considering these cases, the severity and notoriety of the present offenses is not unprecedented in Iberia Parish.

The Area from which the Jury is to be Drawn

In support of this factor, Defendant alleges that Iberia Parish is a relatively small population, consisting of just 73,240 people as of the 2010 census. When analyzing this factor in Magee, the supreme court considered the size of the jury pool summoned for the case. Because the jury pool consisted of 500 people, with only 43% of the jurors polled having heard something about the case and only 11% being removed for having formed an opinion about Magee’s guilt, the supreme court found that the large jury pool prevented a dearth of qualified prospective jurors. The record is silent as to the size of the jury pool in the present case, and |iathere was no testimony at the hearing as to this issue. The record is, therefore, insufficient to review this factor.

Other Community Events that Either Affect or Reflect the Attitude of the Community or Individual Jurors toward Defendant

In support of this factor, Defendant states the following: “[ajlthough the record does not contain references to other events in the community bearing on the motion to change venue, the defense contends that the balance of other factors supports changing venue.” We disagree with Defendant. Nothing in this record relative to this factor advances his position or helps him with his burden of proof.

Any Factors Likely to Affect the Candor and Veracity of the Prospective Jurors on Voir Dire

In support of this factor, Defendant simply states, “As noted above, the nature and severity of Mr. Segura’s alleged crimes and the highly inflammatory nature of the publicity were likely to influence the candor and veracity of the prospective jurors on voir dire.” Again, Defendant’s burden is not to show “likely” prejudice but to prove “actual” prejudice.

Final Analysis

After considering all of the Bell factors, the supreme court in Magee stated the following:

In the final analysis, while the record reveals that some jurors possessed a general knowledge of the case, the defendant fails to demonstrate the existence of an overriding prejudice in the community that prevented him from receiving a fair trial. The defendant’s arguments to the contrary notwithstanding, the record reveals that both counsel and the district court directly assessed each juror’s ability to weigh the evidence and disregard any information or knowledge they might have possessed about the facts of the case.
As noted above, this court has affirmed several rulings denying a change of venue in cases in which a similar percentage of jurors expressed a familiarity with the facts. See Clark, 02-1463 at 21, 851 So.2d at 1073; Hoffman, 98-3118 at 9, 768 So.2d at 555; Connolly, 11fi96-1680 at 5, 700 So.2d at 815. More importantly, in this case, the percentage of prospective jurors excused for cause on ground of bias (13 of 123 prospective jurors examined or 11%) suggests that widespread knowledge of the crime in the community had not so tainted the venire that a fair trial in St. Tammany Parish was unlikely. In fact, the percentage of exclusions does not even approach a threshold showing of community-wide prejudice. See Murphy, 421 U.S. at 803, 95 S.Ct. at 2037-38 (that 20 of 78 venire persons examined were excused because of their opinion about the defendant’s guilt “may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.”); see also Lee, 05-2098 at 34, 976 So.2d at 133 (even assuming that 16 cause challenges should have been granted by the district court and that the percentage of jurors excluded because of fixed opinions as to the defendant’s guilt rose from 32% to 44%, the court found “these numbers consistent with other similarly situated cases in which venue was not changed.”); State v. Wilson, 467 So.2d 503, 513 (La. 1985) (although 24 of 39 prospective jurors examined had heard about the crime, only four were excused on grounds of bias, a percentage too low to support a finding of collective community prejudice sufficient to warrant a change of venue); State v. Rodrigue, 409 So.2d 556, 559 (La.1982) (although 26 of 30 prospective jurors examined in mock voir dire had heard about the case, only 9 had fixed opinions of defendant’s guilt; change of venue not warranted).
In sum, based on the record below, the defendant has failed to demonstrate that the district court abused its discretion when it denied this motion for a change of venue.

Magee, 103 So.3d at 306 (footnote omitted).

Likewise, while the record in the present case reveals that some jurors possessed a general knowledge of the case, Defendant fails to demonstrate the existence of an overriding prejudice in the community that prevented him .from receiving a fair trial. Like the jurors in Magee, the jurors who expressed prior knowledge of the present case were questioned on an individual basis in a sequestered setting. After the individual questioning, only 10% of the jurors were excused because of their exposure to pretrial publicity, one percent less than in Magee. As the court in Magee found, this percentage suggests that widespread 117knowledge of the crime in the community had not so tainted the venire that a fair trial in Iberia Parish was unlikely. Furthermore, the media’s discussion of Defendant’s other crimes does not warrant a different result in this case. In both State v. Comeaux, 514 So.2d 84 (La. 1987) and Lee, 976 So.2d 109, the pretrial publicity included discussions of other crimes committed by the defendants. Although the substance of the media coverage was discussed and considered by the courts in those cases, neither court found that the coverage warranted a finding that the trial court abused its discretion in denying the change of venue.

For the foregoing reasons, Defendant has failed to show that the trial court abused its discretion in denying the motion to change venue in the present case.

CHALLENGES FOR CAUSE

Defendant argues that the trial court erred in denying defense challenges for cause against jurors who had heard about Defendant’s alleged participation in other crimes. The trial court’s denial of these challenges for cause, Defendant claims, forced Defendant to use peremptory strikes against the jurors, and, eventually exhaust all of his peremptory challenges.

According to La.Code Crim.P. art. 797, a defendant may challenge a juror for cause on the grounds that:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according the law and evidence!.]

In State v. Schmidt, 99-1412, pp. 30-31 (La.App. 3 Cir. 7/26/00), 771 So.2d 131,148, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert, denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002), this court stated the following regarding the purpose of voir dire:

11sThe purpose of voir dire is to test the competency and impartiality of prospective jurors to determine whether they are fit to serve on the jury. Voir dire is designed to uncover information about the prospective jurors, which may be used as a basis for challenges for cause or exercise of peremptory challenges. State v. Berry, 95-1610 (La. App. 1 Cir. 11/8/96); 684 So.2d 439, writ denied, 97-0278 (La.10/10/97); 703 So.2d 603. When a defendant exposes the partiality of a juror, the juror may not be automatically excluded for cause. The state or the trial court may rehabilitate the juror by asking questions and obtaining answers demonstrating the juror’s ability to decide the case impartially pursuant to law and evidence. Ultimately, the trial court has the power to determine whether or not a juror may be excused for cause. State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97); 692 So.2d 612, writ denied, 97-2761 (La.2/20/98); 709 So.2d 773.
To succeed on appeal with the claim that the trial court erroneously denied the challenge of a prospective juror for cause, a defendant must exhaust his peremptory challenges and show that the trial court’s denial of his challenge for cause was an abuse of discretion. State v. Cross, 93-1189 (La.6/30/95); 658 So.2d 683; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278; appeal after remand, 97-0177 (La.3/4/98); 712 So.2d 8, cert, denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998); Turner, 692 So.2d 612. Once these factors have been established, prejudice is presumed and need not be shown by the defendant. Id.; Cross, 658 So.2d 683. In Cross, the Louisiana Supreme Court stated that a trial court’s erroneous ruling on a challenge for cause, depriving the defendant of one of his peremptory challenges, “constitutes a substantial violation of [the defendant’s] constitutional and statutory rights, requiring reversal of the conviction and sentence.”

In the present case, Defendant exhausted all of his peremptory challenges. Thus, if the trial court erroneously denied one of his challenges for cause, prejudice should be presumed.

In State v. Scott, 04-1312, pp. 16-17 (La.1/19/06), 921 So.2d 904, 921, cert, denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006), overruled on other grounds by State v. Dunn, 07-878 (La.1/25/08), 974 So.2d 658, the supreme court discussed the standard for reviewing the denial of challenges for cause:

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Cross, 93-1189, p. 7 (La.6/30/95), 658 So.2d 683, |13686; State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281.... “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. Jones, 474 So.2d 919, 926 (La.1985). However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Robertson, 92-2660 at p. 4, 630 So.2d at 1281.

Accordingly, we will review the challenges for cause denied by the trial court to determine whether the trial court abused its discretion.

In his brief, Defendant asserts that the Louisiana Supreme Court has cautioned against denying a cause challenge on a juror who has been exposed to other crimes information and remembers it. In support of this assertion, Defendant cites this excerpt from State v. Goodson, 412 So.2d 1077,1081 (La.1982):

A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror’s testimony as to state of mind.

In State v. Bolden, 95-749 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, writ denied, 96-1272 (La.11/22/96), 683 So.2d 286, this court addressed the implication of the above statement by the supreme court. This court acknowledged that since Good-son, there has been no real discussion in the case law about the “damage that prior knowledge of a confession can do to a juror’s impartiality!.]” Id. at 30. Nonetheless, the court in Bolden stated:

However, the Goodson court clearly considered prior knowledge of a confession among the most tainting factors possible, and one that does not allow for rehabilitation. The Goodson court clearly delineated degrees of taint for potential jurors. Apparently, the Good-son court decided advance knowledge of a confession was so prejudicial that rehabilitation should not even by pursued.

120M However, the court in Bolden distinguished Goodson as applying only to venue questions and as never intended to be applied as a standard for challenges for cause. Id. at 30. Moreover, the Bolden court stated, “[ujsing Goodson as a standard for causal challenges is in contradiction of La.Code Crim.P. art. 797(2), which clearly provides for rehabilitation of biased jurors.” Id. at 30-31 (footnote omitted). In support of this statement concerning Goodson, the court in Bolden footnoted the following excerpt from State v. Lee, 559 So.2d 1310 (La.1990), cert, denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991):

When a juror expresses a predisposition as to the outcome of a trial, a challenge for cause should be granted. Yet, if after subsequent questioning the juror exhibits the ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. When assessing whether a challenge for cause should be granted, the trial judge must look at the juror’s responses during her entire testimony, not just “correct,” isolated answers; or, for that matter, “incorrect,” isolated answers. (Citations omitted.)

Bolden, 680 So.2d at 31, n. 4.

Subsequently, in State v. Smith, 96-261 (La.App. 3 Cir. 12/30/96), 687 So.2d 529, writ denied, 97-314 (La.6/30/97), 696 So.2d 1004, this court again applied the analysis in Lee, rather than relying on Goodson, to dismiss a juror for cause because the juror was exposed to significant information. In Smith, the prospective juror was told by a co-worker that the defendant had killed a former wife and his present wife. The defendant challenged the juror for cause, but the challenge was denied. On appeal, the defendant cited Goodson in support of his argument that the juror should have been excused for cause. This court, however, cited Lee and upheld the denial of the challenge for cause, stating the following:

Although the reference to the defendant’s killing of a second wife was highly significant and incriminating, inadmissible information, the |⅞1 record clearly reflects that juror Bertrand was sufficiently rehabilitated by the trial court. In fact, Mr. Bertrand told the court he took the co-worker’s statements with a grain of salt. Mr. Bertrand further added that the comments would not enter into his determinations of guilt or innocence of the defendant or affect any other decision he may be required to make in this case. In addition, Mr. Bertrand stated that he could decide the case strictly on the evidence presented to him in the courtroom.

Id. at 560. Thus, we will address each of the alleged erroneous causal denials using the standard set forth in Lee and applied by this court in Smith.

Juror Brittany Gachassin

During the trial court’s individual questioning, Juror Gachassin stated that she heard about the case from her sister. When asked if her sister was reading the newspaper, Juror Gachassin replied, “Right.” Juror Gachassin stated that she and her sister talked about the kidnapping charge against Defendant. When asked by the trial court what she and her sister talked about, Juror Gachassin replied, “She had heard — like I said, it’s hearsay. She had heard that — something about kidnapping charges, maybe even a little something about a murder from years ago or something — ...—of that sort. I really didn’t get details.” Juror Gachassin stated that she did not watch the news or read the newspaper. When asked if she had made a decision about whether or not Defendant is guilty or innocent of the pending charges or anything else, Juror Ga-chassin answered, “No, I haven’t.” Juror Gachassin agreed that she could keep an open mind, listen to the evidence, and give a fair trial to both Defendant and the State.

Defense counsel challenged Juror Ga-chassin for cause because of her exposure to publicity and her potential relationship to Defendant. The trial court denied the challenge for cause, finding that the juror clearly had no knowledge of a relationship with Defendant, that the information she received was very scant, and 1 ??that she could be fair and impartial. Defense counsel eventually used a peremptory challenge to strike Juror Gachassin. On appeal, Defendant argues that Juror Gachassin should have been dismissed because of her exposure to Defendant’s kidnapping charges and Defendant’s alleged confession to the Billeaud murder. Defendant alleges that Juror Gachassin’s claim that she could give Defendant a fair trial should not be taken at face value given the nature of the information she heard.

Considering Juror Gachassin’s statement that what her sister told her was “hearsay,” along with Juror Gachassin’s assurances that she could be fair, that she had not decided Defendant’s guilt or innocence, and that she would listen to the evidence, we conclude that the trial court did not abuse its discretion in refusing to dismiss Juror Gachassin for cause.

Juror Carol Fishburn

Defendant argues that Juror Fish-burn should have been removed for cause because she had read about the kidnapping charges, Defendant’s alleged confession to the kidnapping charges, and the jail-hostage situation. Additionally, Defendant alleges that Juror Fishburn seemed to have already made up her mind that a kidnapping took place based solely on what she read in the newspaper.

Defense counsel challenged Juror Fish-burn for cause, arguing that Juror Fish-burn remembered details about the Bil-leaud murder and the kidnapping. The trial court denied the challenge for cause, reasoning that Juror Fishburn’s general knowledge did not exclude her and reasoning that Juror Fishburn indicated that she could be fair and impartial. Defense counsel used a peremptory challenge to strike Juror Fishburn.

IgjOn appeal, Defendant argues that “[g]iven that the defense theory was that there was no kidnapping, and instead this was a case of a drug deal gone bad ... juror Fishburn’s pre-coneeived conclusion that a kidnapping had actually occurred, as well as her knowledge of the Billeaud murder, should have resulted in her removal for cause.” Defendant did not make this “defense theory” argument in the trial court. Thus, that argument was not properly preserved. See Uniform Rules — Courts of Appeal, Rule 1-3. As for Juror Fishburn’s knowledge of the Bil-leaud murder, Juror Fishburn agreed that she could set aside what she learned prior to trial and make a decision about the kidnapping ■ case based on the evidence presented at trial. The trial court did not abuse its discretion in refusing to dismiss Juror Fishburn for cause.

Juror Alfred Phillips

Defendant alleges that the trial court erred in failing to dismiss Juror Phillips for cause since Juror Phillips remembered the news report regarding Defendant’s confession to the Billeaud murder. During his individual voir dire, Juror Phillips testified that he saw a news report regarding the motion for change of venue. When asked by defense counsel if he remembered why Defendant was asking for a change of venue, Juror Phillips responded, “No. They said it’s because of a crime that he supposedly confessed to, he said that he was involved in.” After more questioning, Juror Phillips remembered that the confession was to murdering a lady. Juror Phillips stated, however, that he could set his knowledge aside while deliberating the instant case. Juror Phillips further stated, “I do try to go by evidence more than anything. I don’t like to prejudge people.” Finally, Juror Phillips stated that he really did not remember anything and that he could decide the case solely on the evidence presented in the courtroom. The trial court denied | ^defense counsel’s challenge of Juror Phillips for cause, finding that Juror Phillips had only general knowledge and indicated that he could be fair and impartial. Defense counsel used a peremptory challenge to strike Juror Phillips.

Considering Juror Phillips’ assurance that he could be fair and impartial, that he could decide the case solely on the facts presented in the courtroom, and that he did not like to prejudge people, the trial court did not abuse its discretion in refusing to dismiss Juror Phillips for cause.

Juror Mandy Peltier

Defendant asserts that Juror Pel-tier heard about the kidnapping while at work shortly after the kidnapping occurred. Because Juror Peltier works in the medical profession and the kidnapping occurred in a hospital parking lot, it was news in her community. Additionally, Defendant points out that Juror Peltier testified that she heard there was a rape involved.

During her individual questioning, Juror Peltier stated that while checking Face-book during her lunch break, she saw a post about a rape in the “IMC” parking lot. Juror Peltier did not read any stories in the newspaper, nor had she seen any posts on Facebook recent to the time of trial. Juror Peltier described the details that she heard as follows, “there was a girl and supposedly a baby was in the car with her. He took her to the ATM and then abandoned her in a field.” Juror Peltier was not sure when the rape occurred. When asked if she had formed an opinion about the person’s guilt or innocence, Juror Peltier shook her head negatively. As for her ability to put aside what she saw on Facebook and decide the case based on what she saw and heard in the courtroom only, Juror Peltier testified that she “absolutely” could do that and that she could give both the State | ^and Defendant a fair trial. When defense counsel challenged Juror Peltier for cause, the trial court denied the challenge as follows:

Ms. Peltier was clear, forward thinking, up front about Facebook. It happened in March around the time it happened. Her recall was that the day we got it. She talked about the rape, and then she gave us the details of the facts. And I had to say, “Well, when did the rape occur?” She said, “Oh.” She didn’t even figure. They didn’t talk about anymore. She didn’t see any news. It was not posted again on Facebook. She didn’t read the newspaper or anything. I think Ms. Peltier was very honest that she could be clear. Her body language, her certainty, and the totality of her testimony indicates to me that this challenge needs to be denied. And I’ll deny the challenge and note your objection for the record.

By the time Juror Peltier was called on, Defendant had exhausted all of his peremptory challenges. Thus, Juror Peltier was accepted and served as a juror.

Considering Juror Peltier’s minimal pretrial exposure to the case and Juror Pel-tier’s assurance that she could decide the case based only on the facts presented in the courtroom, the trial court did not abuse its discretion in denying Defendant’s challenge of Juror Peltier for cause.

Juror Karen LeBlanc

Defendant argues that Juror Le-Blanc should have been excused for cause because she testified that she read all of the newspaper accounts of the Defendant’s situation, discussed the information with her neighbor, and recalled extensive details from the articles. Juror LeBlanc paid particular attention to the details, because Mrs. Billeaud’s company dug the water well on her property. Juror Le-Blanc also testified that one of the most disturbing things she read was that Defendant considered killing the victim in the kidnapping case.

Although Juror LeBlanc testified that she could disregard her knowledge and rely solely on the evidence presented in court, Defendant'argues that these claims 12fiwere “unworthy of belief given her extensive knowledge of the newspaper articles.”

During her individual questioning, Juror LeBlanc testified that she read both Thursday’s and Sunday’s paper and that she saw the headlines about the confession. Juror LeBlanc stated that she paid particular attention since the Billeauds “sunk” her water well. Juror LeBlanc also testified as to specifics regarding Defendant’s confession — that he confessed to killing Ms. Billeaud, that he told the authorities that the murder weapon and money bag were in a shed, that it cost $136,000.00 to find the evidence, and that Defendant said he considered killing the lady he kidnapped. When asked if she would be able to put everything she learned aside and give Defendant a fair trial, Juror LeBlanc responded:

I would hope that I could. I’m usually a fair-minded person, and I have a very big respect for the law. As a matter of fact, I don’t even have a speeding ticket. It does a little bit concern me about the part where it — I guess I’m thinking if they have this in the paper that he said, “I wanted to kill this person,” then he had to have kidnaped her, and that kind of bothers me. I would hope that I could put that out of my mind and listen only to the facts because I’m usually definitely a fact person from doing charts at the hospital.
I think I could. I just — I just hope I — I’m just hoping subconsciously that it wouldn’t stay there.

The trial court had the following colloquy with Juror LeBlanc:

Q: Assume this: Assume the facts come in and there is no evidence that he kidnaped anybody. Could you say not guilty?
A: Yeah. If there’s no evidence, then yes.
Q: That he kidnaped anybody. If the State didn’t prove him guilty beyond a reasonable doubt, could you say not guilty?
A: Yes.

127FinaIly, Juror LeBlanc stated that she would base her decision solely on the evidence presented in the courtroom, that she had not formed an opinion as to Defendant’s guilt or innocence, that she strongly believed a person is innocent until proven guilty, and that she tries not to judge people.

The trial court denied Defendant’s challenge of Juror LeBlanc for cause, stating the following:

Ms. LeBlanc came in, and her hesitancy really was an open-ended question before they had all of the facts of the information. She is a fact-oriented person. That is her skill set. She is a person who understands the importance of details, so she recalls them. While she doesn’t watch TV, she reads the newspaper. I think when we gave her all of the information that was pertinent to her making that decision, it was clear with her ready answers and her open responses that she can put that aside and be fair. I deny the challenge for cause on Ms. LeBlanc.

Defendant used his only remaining peremptory challenge to strike Juror LeBlanc as an alternate juror.

Although Juror LeBlanc was initially hesitant on her ability to set aside what she had learned, her later answers were definite that she would set aside what she learned and decide the case only on the evidence presented at trial. Thus, the trial court did not abuse its discretion in denying Defendant’s challenge of Juror LeBlanc for cause.

Juror Vanessa Domingue

Defendant claims that the trial court erred in refusing to dismiss Juror Domingue for cause because Juror Do-mingue recalled that Defendant confessed to the Billeaud murder and the “prison thing.” Juror Domingue had read the newspaper and watched the television broadcasts about the case. Furthermore, Defendant asserts, Juror Domingue knew the husband of the alleged victim in the kidnapping case.

| ^During her individual voir dire, Juror Domingue stated that she read the newspaper article from the Daily Iberian that stated that Defendant confessed to the Billeaud murder and the prison uprising. Juror Domingue discussed what she read with co-workers and family. Juror Do-mingue thought she may have also seen something on television. Additionally, Juror Domingue stated that she knew the family of the husband of the kidnapping victim. According to Juror Domingue, she grew up within a mile of the victim’s husband and went to school with him. Juror Domingue does not, however, see the victim’s husband on a regular basis. When asked if she could put the information she learned aside and decide the case solely on the evidence presented in the courtroom, Juror Domingue stated that she could. Juror Domingue stated that she had not formed an opinion as to Defendant’s guilt or innocence and that she could be fair and impartial to both the State and Defendant.

When defense counsel challenged Juror Domingue for cause, the trial court denied the challenge. Since Defendant had exhausted all of his peremptory challenges, he was not able to strike Juror Domingue, and she ended up serving as a juror in the case. Considering Juror Domingue’s assurances that she could decide the case based on the evidence presented in court and that she had not formed an opinion as to Defendant’s guilt or innocence, the trial court did not err in refusing to dismiss Juror Domingue for cause.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.

      . Defendant asserts that there were sixty-eight prospective jurors in the jury pool. At trial, the State asserted that there were sixty-two prospective jurors. According to the roll call of the separate panels, four panels totaling sixty-nine jurors were called. However, we counted only sixty prospective jurors as actually being called for examination.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Jason HART v. HIGHLINES CONSTRUCTION CO., INC., et al.
    No. 13-624.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Eric J. Waltner, Allen & Gooch, Lafayette, Louisiana, for Defendants/Appellees, The Gray Insurance Company Highlines Construction Company, Inc.
    Robert L. Beck, III, Law Offices of Robert L. Beck, Jr., LLC, Alexandria, Louisiana, for Plaintiff/Appellant, Jason Hart.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

hThe issue in this workers’ compensation case is whether La.R.S. 23:1201.4 precludes an incarcerated claimant from filing a claim to establish his right to collect workers’ compensation benefits upon his release from incarceration. Because we answer that question in the negative, we reverse the judgment of the workers’ compensation judge (WCJ) sustaining exceptions filed by the claimant’s employer and its insurer.

FACTS AND PROCEDURAL HISTORY

The facts in this matter are not in dispute. The claimant, Jason Hart, was injured on November 12, 2007, when he came in contact with a live electrical line while working for HOTI, Inc. Thereafter, The Gray Insurance Company, HOTI’s workers’ compensation insurer, began paying Hart weekly indemnity benefits. On February 22, 2010, Hart was incarcerated following a parole violation. Several months later, Gray ceased paying Hart indemnity benefits pursuant to La.R.S. 23:1201.4.

Hart filed a Form 1008 Disputed Claim for Compensation (1008) against HOTI and Gray (hereafter appellees) on February 25, 2013, wherein he listed as the bona fide dispute that his “[ejntitlement to receive medical benefits has not been established.” In response, the appellees filed an exception of prematurity and no cause of action and/or right of action. Before the exceptions came up for hearing, Hart filed a first supplemental and amending 1008 and a second supplemental and amending 1008 in which he claimed that the appellees had failed to authorize his evaluation by Dr. Gerald Leglue, Jr. and to approve additional | vocational rehabilitation. Hart sought penalties and attorney fees in both supplemental 1008s. While the appellees did not object to Hart’s filing of the two supplemental petitions, they did assert their exceptions as to the petitions.

Following a contradictory hearing, the WCJ sustained the exceptions and dismissed the matter with prejudice. Hart now appeals asserting that the WCJ erred in holding that he was precluded from filing and/or pursuing a claim for workers’ compensation medical benefits during his incarceration.

DISCUSSION

Louisiana Revised Statutes 23:1201.4, entitled “Forfeiture of benefits while incarcerated; exclusions; medical expenses,” provides, in pertinent part, as follows:

A.... [T]he employee’s right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee. After release from incarceration, the employee’s right to claim compensation benefits shall resume. An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this Chapter extended by the number of days he was incarcerated.

The WCJ relied on this court’s decisions in Desselle v. Dresser Industrial Valve, 96-374 (La.App. 3 Cir. 2/5/97), 689 So.2d 549, writ denied, 97-618 (La.4/25/97), 692 So.2d 1086, and Duplechain v. Department of Transportation and Development, 02-356 (La.App. 3 Cir. 10/2/02), 827 So.2d 567, writ denied, 02-2674 (La.1/31/03), 836 So.2d 68, as authority for granting the exceptions in favor of the appellees. The WCJ reasoned that because La.R.S. 23:1201.4 provides that an incarcerated claimant forfeits his medical benefits, Hart had no right of action Rfor medical benefits when he filed his claim against the appel-lees. Accordingly, the WCJ declared that a claimant such as Hart “cannot just file a claim simply to interrupt prescription when at the time of the filing you have no right to the benefits you are seeking.”

In Desselle, 689 So.2d 549, the claimant was injured at work in 1989 and began to receive workers’ compensation benefits. He later returned to work for the same employer where he earned more than 90% of the wages he was earning at the time of his accident, and his employer stopped paying him benefits. Thereafter, the claimant sought “a declaratory judgment declaring his entitlement to future [supplemental earnings benefits (SEBs) ] should he eventually become unable to work due to his job injury.” Desselle, 689 So.2d at 551. As we noted, the claimant appeared to concede that he was not presently entitled to workers’ compensation benefits but was “concerned with the prospect of his becoming disabled or laid off beyond the two year prophylactic prescriptive period applicable to claims for workers’ compensation.” Id. We affirmed the hearing officer’s judgment holding that the claimant’s action was premature and that he was not entitled to declaratory judgment because we found that there was “no existing actual and substantial dispute” or “justiciable controversy” between the claimant and his employer at that time. Id. at 552.

In Duplechain, 827 So.2d 567, the claimant began receiving indemnity benefits after he was injured at work in 1990. When he returned to work in 1993, he stopped receiving indemnity benefits but his employer continued to provide him with medical benefits. In 1994, the claimant filed a claim for compensation based upon the 1990 accident but stated therein that no dispute existed at the time. That claim was dismissed without prejudice on the basis that there were “no current |4issues to be litigated.” Id. at 568. The claimant filed a second claim for benefits against his employer in March of 2001, which the WCJ found was prescribed. On appeal to this court, the claimant “presented] the equitable argument that there is nothing a claimant can do to preserve his claim,” while reiterating that he had “filed suit within one year of the last payment of indemnity benefits but it was dismissed because no dispute existed at the time.” Id. This court nevertheless affirmed the WCJ’s finding that the claim was prescribed, noting that “[hjarsh though the result may be, ... [a] claimant cannot file suit merely to preserve a potential claim when no dispute exists.” Id.

Hart seeks to distinguish his claim from those asserted by the claimants in Desselle and Duplechain on the basis that the injured employees in those cases made claims for benefits that were not currently due but which might have become due in the future. Hart, on the other hand, claims that he is currently due benefits but cannot collect them because he must forfeit them due to his incarceration. In that vein, he likens his claim to that asserted by the claimant in Gobert v. S.W.D.I., L.L.C., 08-1598 (La.App. 1 Cir. 5/5/09), 13 So.3d 608.

In Gobert, an incarcerated claimant filed a disputed claim for workers’ compensation “seeking to interrupt prescription of his claims for indemnity and medical expenses” arising out of an on-the-job injury that he incurred almost six years earlier. Id. at 609. His former employer filed a peremptory exception of no cause of action on the basis of La.R.S. 23:2101.4, arguing that the claimant had no cause of action while he was incarcerated and his right to compensation benefits was forfeited. The WCJ granted the exception of no cause of action and dismissed the matter with prejudice. On appeal, the first circuit reversed, holding that “while [the claimant] cannot collect workers’ compensation benefits while he is ^incarcerated, he must be able to file his claim while he is incarcerated in order to preserve his right to collect benefits when he is released.” Id. at 610.

Hart submits that he should be allowed the opportunity to prove at trial that the medical benefits that he seeks to be provided by the appellees are reasonable and necessary under La.R.S. 23:1203. While he concedes that he will have to forfeit those benefits while he remains incarcerated, he argues that “he should not be denied access to the [c]ourt to establish his right to such benefits.” Hart further submits that to allow prescription to run on an inmate’s workers’ compensation claim during his incarceration, without interruption, while prohibiting the inmate from pursing a claim for compensation benefits would unconstitutionally deny that inmate’s access to the courts during his imprisonment, a situation that was frowned upon by the supreme court in Clark v. Mrs. Fields Cookies, 97-397 (La.1/21/98), 707 So.2d 17.

| P,Appellees seek to distinguish Go-bert on the grounds that the employer did not file an exception of prematurity in that matter. “A suit is premature if it is brought before the right to enforce it accrues.” Jefferson Door Co., Inc. v. Cragmar Const., L.L.C., 11-1122, p. 3 (La.App. 4 Cir. 1/25/12), 81 So.3d 1001, 1004, writ denied, 12-454 (La.4/13/12), 85 So.3d 1250 (emphasis added). Because the focus in both this case and in Gobert was whether the claimant has a current “right to file his cause of action” to preserve his right to collect benefits upon his release from incarceration, we conclude that the fact that the employer in Gobert did not file an exception of prematurity amounts to a distinction without a difference. Gobert, 13 So.3d at 611.

For the reasons expressed in Gobert, 13 So.3d 608, we conclude that the WCJ erred in sustaining the appellees’ exception of no cause of action and/or right of action. Moreover, we find implicit in the Gobert holding that if an incarcerated claimant has a present right to file a cause of action to preserve his right to later collect indemnity benefits should he still be otherwise entitled to them upon his release from incarceration, his claim is not premature. Thus, the WCJ also erred in sustaining the appellees’ exception of prematurity.

DECREE

The judgment sustaining exceptions of prematurity and no cause of action and/or right of action filed by HOTI, Inc. (previously known as Highlines Construction Company, Inc.) and The Gray Insurance Company and dismissing Jason Hart’s claims against them is reversed and set aside, and this matter is |7remanded for further proceedings. All costs of this appeal are assessed against HOTI, Inc. and The Gray Insurance Company.

REVERSED AND REMANDED.

      . HOTI, Inc. was previously known as High-lines Construction Company, Inc. Whenever we use the term HOTI in this opinion, we are referring to either Highlines or HOTI, Inc.

      . The first circuit in Gobert, 13 So.3d at 610, discussed the supreme court case of Clark, 707 So.2d 17, stating:
      In Clark v. Mrs. Fields Cookies, 1997-0397 (La.1/21/98), 707 So.2d 17, the court found that incarceration does not suspend the running of prescription for filing a workers’ compensation claim while the injured worker remains confined. The court specifically rejected the argument that under La.R.S. 23:1201.4, an injured worker should be prevented from filing a claim for benefits while imprisoned and that the prescriptive period would be suspended during that time.
      Thereafter, the Louisiana legislature amended La. R.S. 23:1201.4 to add:
      An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this chapter extended by the number of days he was incarcerated.
      The historical and statutory notes to La. R.S. 23:1201.4 explain the intention behind Acts 1999, No. 320, Section 2, as follows: “The provisions of this Act are intended to legislatively overrule the finding that incarceration does not suspend prescription for filing a workers’ compensation claim as stated in the Louisiana Supreme Court decision Clark v. Mrs. Field’s Cookies, 707 So.2d 17 (La. 1998).”

      . "[Tjhere is no such exception as an 'exception of no cause and/or right of action,’ ” and "such loose pleading is not to be condoned or encouraged.” Robinson v. N. Am. Royalties, Inc., 463 So.2d 1384, 1386 (La.App. 3 Cir.1985). ”[A]n exception of 'no cause of action’, La.C.C.P. Art. 927(4) and an exception of ‘no right of action', La.C.C.P. Art. 927(5) ... are distinct exceptions subject to different rules.” Id.


text:
    Marti Elizabeth SIMON, et al. v. Ronald THERIOT, Sheriff, et al.
    No. 13-562.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Carl J. Rachal, Simon Law Offices, Lafayette, Louisiana, for Plaintiff/Appellant, Marti Elizabeth Simon, on behalf of her minor children, Haley Nel Richard and Haven Gage Richard.
    Patrick B. Mclntire, Robin J. Magee, Oats & Marino, Lafayette, Louisiana, for Defendants/Appellees, Ronald Theriot, Sheriff St. Martin Parish Sheriffs Office.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiff appeals the trial court’s judgment granting of a peremptory exception in favor of Defendants. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The action giving rise to this litigation involves the wrongful death causes of action by the survivors, i.e., the minor children of decedent, Christopher Ted Richard (Ted).

On October 8, 2010, Ted dropped off his girlfriend, Danielle Belle (Belle) and/or her mother, at her home. Thereafter, Belle and/or her mother called 9-1-1 to file a complaint against Ted. Members of the St. Martinville City Police and St. Martin Sheriffs units were subsequently dispatched to the scene and arrived, surrounding the vehicle that Ted was occupying. Ted locked and barricaded himself inside his vehicle. Thereafter, Ted called his father, Larry Richard (Larry), his mother, Cheryl Richard (Cheryl), and his ex-wife, Marti Elizabeth Simon (Simon), on his cell phone wherein he indicated he intended to kill himself.

Over the next few hours, Ted made several phone calls to Larry, Cheryl, and Simon. During one of these calls to his father, Larry told Ted that he was “on his way” and to “not do anything stupid.” Ted told his father that he would not shoot himself or do “anything stupid” and that he would wait for his father to arrive at the crisis scene.

Major Ginny Higgins (Major Higgins) was the head crisis negotiator with the St. Martin Parish Sheriffs Office and was in charge of the crisis negotiations with Ted. Major Higgins told Larry, Cheryl, and Simon that she did not want them ^having any further communications with Ted as it would interfere with their handling of the crisis negotiations. Major Higgins and her assistant, Deputy Allison Boudreaux (Deputy Boudreaux), also told them that if they spoke by telephone with Ted, they would be criminally charged with obstruction of justice and arrested for interfering with their negotiations. After these conversations with Major Higgins and Deputy Boudreaux, Ted made numerous cell phone calls to Larry, Cheryl, and Simon. Due to the threat of arrest and incarceration, all of these cell phone calls went unanswered. Ted subsequently shot and killed himself while in his own vehicle.

Simon, on behalf of her minor children, Haley Nel Richard and Haven Gage Richard, thereafter filed a Petition for Damages against Defendants, Ronald Theriot, in his capacity as St. Martin Parish Sheriff, and the St. Martin Parish Sheriffs Office. Simon’s petition alleged that Defendants were negligent and/or at fault in causing Ted’s death. Defendants responded by filing an answer with general denials and a peremptory exception for failure to state a cause of action. In its initial judgment in favor of Defendants, the trial court stated that Simon failed to state a cause of action as her petition failed to allege facts which would impose a duty upon Defendants. The trial court granted Defendants’ exception but also allowed Simon thirty days to amend her petition to state a cause of action. After Simon filed an amended petition for damages, Defendants re-urged their original exception of no cause of action. The trial court ruled in favor of Defendants, granted the exception, and dismissed Simon’s lawsuit with prejudice.

IgSimon is now before this court asserting that the trial court committed reversible error and abused its discretion by failing to accept the allegations and facts in her original and supplemental petition for damages as true and correct and in granting Defendants’ peremptory exception of no cause of action on the grounds that Simon failed to allege an affirmative duty prohibiting family members from participating in crisis negotiations when a person is threatening suicide.

LAW

“In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition.” Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 119.

DISCUSSION

I. Simon’s Mis-Reading of the Trial Court’s Judgment

In her assignment of error, Simon asserts two issues: (a) that the trial court failed to accept the allegations of fact in the original and supplemental petitions as true and (b) that the trial court granted the exception of no cause of action because Simon did not allege an affirmative duty “prohibiting family members from participating in crisis negotiations when a person is threatening suicide.” In opposition, Defendants contend that Simon is mistaken on both counts.

As used in the context of the peremptory exception, a cause of action refers to the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Ramey, 869 So.2d 114. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the [4facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 931. Additionally, “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” Id. Consequently, “the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Jackson v. State ex rel. Dep’t of Corr., 00-2882, pp. 3-4 (La.5/15/01), 785 So.2d 803, 806.

In her original petition, Simon alleged the same facts as stated in the factual section above. She further alleged that Defendants were at fault by:

A. Negligently failing to utilize properly trained negotiators;
B. Negligently failing to properly train the negotiators in question;
C. Negligently failing to follow proper accepted police training and procedures for crisis negotiations for dealing with suicidal individuals such as Ted Richard;
D. Negligently failing to allow the deceased’s father, mother and ex-wife from assisting in the crisis negotiations;
E. Other such actions and/or inactions in failing to see and/or do what should have been done under the circumstances in order to avoid and/or prevent the death of Ted Richard; and
F.Any and all other acts of negligence and/or fault which may be proven at the trial of this matter.

As mentioned above, the trial court initially ruled in favor of Defendants and allowed Simon thirty days to amend her petition to state a cause of action. In its written reasons for judgment dated June 13, 2012, the trial court stated that “[for] |Bthe purpose of the exception the following facts in the petition are considered true.” The trial court then recited the facts as alleged by Simon in her petition. The trial court further stated:

Plaintiff has cited no authority which imposes upon deputies, negotiating with a person threatening suicide, an obligation to allow untrained family members to participate in the negotiations. This court has found no such authority. Plaintiff has failed to allege facts which impose a duty upon the Sheriffs deputies or the Sheriff; therefore, plaintiff has failed to state a cause of action.

Simon subsequently filed an amended and supplemental petition. She re-alleged the same facts contained in her original petition. She further alleged that Defendants were at fault by:

a. Failing to recognize and/or not ignore the risks of suicide, which were foreseeable;
b. Failing to take reasonable steps necessary to prevent said suicide;
c. Once it became clear that there was a high risk of suicide, by failing to adhere to their duty to do everything possible to prevent such suicide, including, but not limited to, allowing Ted Richard’s family to speak with him to attempt to circumvent, deter and/or prevent such suicide;
d. By failing to act reasonably and prudently under the circumstances;
e. By acting carelessly and recklessly under the circumstances; and
f. Any and all other acts of negligence which may be proven at the trial of this matter.

Despite the supplemental and amended petition, the trial court again granted the Defendants’ peremptory exception on December 15, 2012. In its oral reasons for judgment dated November 16, 2012, the trial court stated that it has to “accept the facts as true in deciding.” The trial court further stated that it did not see that a legal duty existed on the part of the Sheriff.

| (¡Contrary to Simon’s argument that the trial court was demanding eviden-tiary proof and based upon the above oral and written reasons for judgment, we find that the trial court did accept the allegations of the petition and amending and supplemental petition as true for purposes of the exception. The trial court simply found that under the circumstances alleged, i.e., an armed, barricaded, and suicidal individual, the deputies did not owe any duty to Simon that would make them liable for damages if the suicide took place.

Additionally, the trial court did not grant the exception simply because Simon failed to allege that there was an affirmative duty. Allegation of a duty would not be a fact but would be a legal conclusion that is to be disregarded when analyzing the petition. See Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La.3/16/10), 35 So.3d 230 (whether a duty is owed is a question of law); see also Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127 (allegations in counter-claim that original suit was frivolous and in bad faith were mere conclusions when unsupported by facts). What the trial court found was that “[pjlaintiff has failed to allege facts which impose a duty upon the Sheriffs deputies.” Again, the facts alleged in this case establish that the deputies were confronted with an armed, barricaded, and suicidal individual who was never in custody at any time during the encounter. The trial court correctly concluded that, under these circumstances, no duty arose on the part of the Sheriff and the deputies. The exception was granted, not because of a failure to allege a duty, but because under the facts as pled, viewed in the light most favorable to Simon, no duty arose as a matter of law.

Simon correctly notes that the trial court found that the Sheriff had no legal duty under the facts of this case to assure the survival of Ted. Simon, however, argues that duty was not the issue. Rather, Simon argues that the issue was 17whether, under La.Civ.Code art. 2315, the deputies “were negligent in the handling of the suicide situation.” We find that Simon is mistaken. The issue raised by the exception was whether a duty existed under the circumstances alleged. It is axiomatic that in all negligence cases, Louisiana courts have adopted a duty-risk analysis to determine if liability exists under the facts of a particular case. Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La.3/16/10), 35 So.3d 230. The first element of a duty-risk analysis is whether “the defendant had a duty to conform his or her conduct to a specific standard of care.” Id. at 240. The existence of a legal duty is a question of law, and it is appropriate for resolution by an exception of no cause of action. Id.

Thus, we find that Simon mis-read the trial court’s judgment. Accordingly, we find that Simon’s assignment of error is without merit for the reasons stated above and below.

II. The Trial Court’s Ruling Regarding the Supplemental and Amended Petition

Despite Simon’s protestations, the issue in this case is whether Louisiana law imposes a duty on the Sheriff to allow family members to participate in crisis negotiations, or more generally, to assure the survival of a suicidal man who has locked himself in a car with a loaded shotgun pointed at his head. We find that it does not.

As mentioned above, the existence of a duty is a question of law. Hardy v. Bowie, 99-2821 (La.9/8/99), 744 So.2d 606. “The inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his claim.” Id. at 614. In Hardy, police officers were responding to the sound of a gunshot within a crowd. One of the issues was whether they | sowed a duty to bystanders, and particularly the decedent who was shot soon after the police began their search for the gun-wielding assailant. The court noted that “[generally, a ‘police officer has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action.’” Id. at 614 (quoting Prattini v. Whorton, 326 So.2d 576 (La.App. 4 Cir.1976)). Citing Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318, the Hardy court observed that police officers are “held to choosing a course of action which is reasonable under the circumstances.” Hardy, 744 So.2d. at 614.

We note that the above cases have acknowledged tort protection for the benefit of innocent bystanders and for the protection of suspects from battery by the police. Nevertheless, Simon has not provided jurisprudence which stands for the proposition that there exists a duty upon police officers to allow family members to participate in crisis negotiations. Likewise, we have been unable to find jurisprudence to that effect.

The Louisiana Supreme Court has upheld an exception of no cause of action in a slightly different wrongful death by suicide claim. See Ramey, 869 So.2d 114. In Ramey, the decedent physician committed suicide after being told over the phone that he had failed a random drug screen, knowing that the drug test would likely cost him his medical license. The plaintiffs sued the people who had advised the decedent of the test result for negligently failing to take precautions against the risk of suicide when such risk was foreseeable under the circumstances. The supreme court granted the exception of no cause of action, though it remanded the case to allow plaintiffs another opportunity to amend to cure the exception. Justice Knoll, concurring with the holding of the failure to state a cause of action and dissenting from the decision to remand rather than dismiss the suit, noted that the |flpleadings did not articulate any legal duty given “the strong policy considerations against assigning del-ictual responsibility for the suicidal acts of another, and the great reluctance of our courts to extend such liability, especially in non-custodial circumstances.” Id. at 120. Justice Knoll also noted the highly speculative nature of the claim and the general rule that “[p]leadings which establish only possibility, speculation, or unsupported probability do not suffice to establish a cause of action.” Id. at 120-21.

Other states have addressed the specific issue of police liability in the context of an armed and suicidal individual. They have found no duty to allow participation by family members in the crisis negotiations and have found no duty to assure survival of the suicidal person at all. In Ferreira v. City of East Providence, 568 F.Supp.2d 197 (D.R.I.2008), Patricia Ferreira shot herself while barricaded in a car. Her suicide came after her brother, against police orders, had draped himself over the windshield of the car, from which he had to be removed and placed in handcuffs in a police cruiser. In Ferreira, as in the present case, the allegation was that if only the police had allowed the brother to continue the dialogue, the suicide could have been prevented. The court noted that the police were justified in removing the brother from the vicinity of the car and that to do otherwise “would have placed Ferreira [the brother], who was in a stressed and upset state, effectively in charge of the situation.” Id. at 207. The court found that the issue was whether the officers owed any duty to protect Patricia from herself. It found that they did not.

In Adams v. City of Fremont, 68 Cal.App.4th 243, 80 Cal.Rptr.2d 196 (1998), the court found that officers responding to a situation involving a person threatening suicide with a loaded weapon have no legal duty of care that would |inexpose them to liability if their conduct fails to prevent the suicide from being carried out. In Adams, the court noted that police officers in the presence of an armed and suicidal person are concerned with several interests: the physical safety of the community, including themselves, other citizens, and family members; the physical safety of the suicidal person, and; the psychological sanctity of family members. The court held that “imposing liability for the negligent handling of a threatened suicide improperly elevates the interests in preserving the life of the person threatening suicide over the interests of public safety and the physical safety of police officers.” Id. at 272, 80 Cal.Rptr.2d 196.

In the present case, Simon contends that the out-of-state cases examined above did not involve exceptions of no cause of action. We note, however, that these cases were decided as a matter of law based on the issue of whether to recognize a legal claim under circumstances virtually identical to the case at hand, i.e., police dealing with an armed and suicidal individual. Both cases held that no such cause of action should be allowed.

Simon has likewise cited cases in support of her assignment of error. In Garza v. Delta Tau Delta Fraternity Nat’l, 06-698 (La.App. 1 Cir. 3/28/07), an unpublished decision, the allegation was that a police officer refused to take the complaint of a rape victim, told her that no official action would be taken against the alleged rapist, and told her that she would be sued for defamation if she continued to complain. The gist of the case was that the officer encountered a non-suicidal person and helped drive her to suicide. In the present case, however, the petition and supplemental and amended petition makes it clear that the suicidal person in this case was already barricaded in a car with a loaded gun threatening |n suicide when the police encountered him. Thus, the circumstances in this case are easily distinguishable from Garza.

Simon also cites the case of White v. Walker, 950 F.2d 972 (5th Cir.1991), a Mississippi federal case. The allegation in White was that the suicidal person was never in contemplation of taking his own life until the encounter with the officer. The court upheld the exclusion of a psychologist’s testimony to the effect that the officer’s conduct contributed to the suicide. It reversed and remanded solely on the issue of whether there was a Fourth Amendment violation of the suicidal person’s rights as a result of the traffic stop that began the encounter. The issue turned on whether there was a violation of Mississippi traffic law. All other claims were dismissed. We find that this case does not stand for the proposition that officers confronted with an armed, barrí-caded, and suicidal individual have a duty to save the life of the suicidal individual which trumps their duty to others at risk.

Finally, Simon cites Gray v. City of Detroit, 399 F.3d 612 (6th Cir.2005), where the decedent committed suicide while in a police cell at a hospital. Since Gray committed suicide while in police custody, Gray is distinguishable from the facts in the present case as Ted was not in custody at the time of his suicide.

Thus, Simon’s assignment of error is without merit.

DECREE

The judgment rendered by the trial court is affirmed. All costs of this appeal are assessed against Marti Elizabeth Simon, on behalf of her minor children, Haley Nel Richard and Haven Gage Richard.

AFFIRMED.

      . Simon and Ted have two minor children, Haley Nel Richard and Haven Gage Richard.

      . The facts stated above are the same facts alleged in Simon’s petition and supplemental and amended petition.