source: Caselaw Access Project

author: PER CURIAM. WEIMER, J.,

license: Public Domain

text:
    STATE of Louisiana v. R.W.B.
    No. 2012-CQ-0453.
    Supreme Court of Louisiana.
    Dec. 4, 2012.
    James D. Caldwell, Attorney General, Calcasieu Parish District Attorney’s Office, John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, for State of Louisiana.
    Calcasieu Paris Public Defender’s Office, Edward Kin Alexander, Jr., for Defendant.
   PER CURIAM.

_JjWe accepted the certified question presented to this court by the Louisiana Court of Appeal, Third Circuit. The question presented seeks “binding instructions from the Louisiana Supreme Court regarding the correct usage of a defendant’s name (and other close relatives) in cases in which the victim is a minor related to the defendant.” For the reasons that follow, we conclude that the controlling statutory authority mandates confidentiality of the victim’s identity in certain cases, but does not extend this protection to any other persons.

FACTS AND PROCEDURAL HISTORY

We decide this certified question based on the facts presented to us by the court of appeal. R.W.B. was convicted of attempted sexual battery of his stepdaughter, H.N., who was a minor at the time of the offense. R.W.B. appealed his conviction to the court of appeal, where the appeal remains pending. No underlying substantive issues pertaining to R.W.B.’s conviction are at issue in this certification.

DISCUSSION

The statutory provisions addressing confidentiality of crime victims who are | ^minors and victims of sex offenses are set forth in La. R.S. 46:1844(W). That statute provides, in pertinent part:

(l)(a) In order to protect the identity and provide for the safety and welfare of crime victims who are minors under the age of eighteen years and of victims of sex offenses, notwithstanding any provision of law to the contrary, all public officials and officers and public agencies, including but not limited to all law enforcement agencies, sheriffs, district attorneys, judicial officers, clerks of court, the Crime Victims Reparations Board, and the Department of Children and Family Services or any division thereof, shall not publicly disclose the name, address, or identity of crime victims who at the time of the commission of the offense are minors under eighteen years of age or of victims of sex offenses, regardless of the date of commission of the offense. The confidentiality of the identity of the victim who at the time of the commission of the offense is a minor under eighteen years of age or the victim of a sex offense may be waived by the victim. The public disclosure of the name of the juvenile crime victim by any public official or officer or public agency is not prohibited by this Subsection when the crime resulted in the death of the victim.
(b) In order to protect the identity and provide for the safety and welfare of crime victims who are minors under the age of eighteen years and of victims of sex offenses, notwithstanding any provision of law to the contrary, an attorney for any party shall be prohibited from publicly disclosing, except during trial, the name, address, or identity of crime victims who at the time of the commission of the offense are under eighteen years of age or are victims of sex offenses, regardless of the date of commission of the offense. An attorney may lawfully utilize initials, abbreviations, or other forms of indefinite descriptions on documents used in the performance of their duties to prevent the public disclosure of the name, address, or identity of such crime victims. If the name, address, or identity of such a crime victim must be disclosed in a motion or pleading, that motion or pleading shall be filed with the court requesting that it be kept under seal. Failure to comply with the provisions of this Subparagraph shall be punishable as contempt of court.
* * *
(2) For purposes of this Section, “sex offense” shall include the perpetration or attempted perpetration of aggravated rape (R.S. 14:42), forcible rape (R.S. 14:42.1), simple rape (R.S. 14:43), sexual battery (R.S. 14:43.1), second degree sexual battery (R.S. 14:43.2), oral sexual battery (R.S. 14:43.3), intentional exposure to the AIDS virus |s(R.S. 14:43.5), stalking (R.S. 14:40.2), incest (R.S. 14:78), aggravated incest (R.S. 14:78.1), felony carnal knowledge of a juvenile (R.S. 14:80), indecent behavior with juveniles (R.S. 14:81), pornography involving juveniles (R.S. 14:81.1), molestation of a juvenile or a person with a physical or mental disability (R.S. 14:81.2), crime against nature (R.S. 14:89), aggravated crime against nature (R.S. 14:89.1), sexual battery of the infirm (R.S. 14:93.5), and video voyeurism (R.S. 14:283).
(3) Notwithstanding any. other provision of law to the contrary, all public officials, officers, and public agencies, including but not limited to all law enforcement agencies, sheriffs, district attorneys, judicial officers, clerks of court, the Crime Victims Reparations Board, and the Department of Children and Family Services or any' division thereof, charged with the responsibility of knowing the name, address, and identity of crime victims who are minors or of crime victims of a sex offense as a necessary part of their duties shall have full and complete access to this information regarding a crime victim who is a minor or a •victim of a sex offense. Either prior to or at the time of a request for information, the public official or officer or public agency shall take measures to prevent the public disclosure of the name, address, or identity of such a crime victim who is a minor or a victim of a sex offense, which may include the use of initials, abbreviations, or any other form of concealing the identity of the victim on all public documents.

It is well established that “[t]he starting point for the interpretation of any statute is the language of the statute itself.” - Foti v. Holliday, 09-0093 (La.10/30/09), 27 So.3d 813, 817 (quoting Dejoie v. Medley, 08-2223 (La.5/5/09), 9 So.3d 826, 829). The basic rules governing statutory interpretation are set forth in La. R.S. 1:3 (“[wjords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language”) and La. R.S. 1:4 (“[wjhen the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit”). See also La. Civ.Code art. 9 (“[wjhen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature”).

The clear and unambiguous language of La. R.S. 46:1844(W) requires the protection of the “identity of crime victims who at the time of the commission of the offense are minors under eighteen years of age or of victims of sex offenses ...” [emphasis added]. Nothing in this statute provides for, or requires, the protection of the identity of the defendant or witnesses in such cases.

This interpretation of this statute is also supported by the strong constitutional bias in favor of open access by the public to court proceedings. Unlike the federal constitution, the Louisiana Constitution has an “open courts” provision, providing that “[ajll courts shall be open ...” La. Const. art. I, § 22. Copeland v. Copeland, 07-0177 at p. 4 (La.10/16/07), 966 So.2d 1040, 1048. Citing this provision, we have held that “[o]penness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.” State v. Birdsong, 422 So.2d 1185, 1137 (La.1982) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)). Against this constitutional backdrop, we decline to interpret La. R.S. 46:1844(W) as imposing any limitations on the disclosure of the identity of any persons other than the victim.

It has been suggested that in certain cases, such as parental rape or incest, the protections of La. R.S. 46:1844(W) could be undermined if the name of the defendant is revealed, because this information may cause the identity of the victim to be readily ascertainable. However, it is not this court’s role to consider the policy or the wisdom of the legislature in adopting a statute. It is our province to determine only the applicability, legality, and constitutionality of the statute. See Reeder v. North, 97-0239, pp. 9-10 (La.10/21/97), 701 So.2d 1291, 1297. The plain language of La. R.S. |546:1844(W) has no application to any persons other than the victim.

Having answered the certified question, we remand this case to the court of appeal for further proceedings.

DECREE

We answer the certified question as set forth in this opinion. Pursuant to Supreme Court Rule XI, the judgment rendered by this court upon the question certified shall be sent by the clerk of this court under its seal to the Louisiana Court of Appeal, Third Circuit, and to the parties.

WEIMER, Justice, dissents and assigns reasons.

WEIMER, J.,

dissenting.

hi agree with the majority that the open access by the public to court proceedings is best served by having the name of a defendant and/or witnesses fully identified in court documents. However, I find such identification is a general requirement that is subject to certain limited exceptions. In cases when crime victims “are minors under eighteen years of age or ... victims of sex offenses,” (La. R.S. 46:1844(W)(l)(a)), and where a victim’s identity may be readily ascertained based on names of the defendant and/or witnesses, I would hold that a court has the discretion to identify these persons by initials to protect the victim.

Indeed, “all public officials, ... including ... clerks of court ... shall take measures to prevent the public disclosure of the name, address, or identity of such a crime victim.” La. R.S. 46:1844(W)(3) (emphasis added). After this mandate to prevent disclosure of the minor victim’s or sex victim’s name, La. R.S. 46:1844(W)(3) allows discretion as to the “measures” for a court to undertake to prevent disclosure, “which may include the use of initials, abbreviations, or any other form of concealing the identity of the victim on all public documents.” (Emphasis added.) Id. As a matter of statutory interpretation, the phrase “which may include” indicates that the list of protective measures which follows that phrase is illustrative, and not all-inclusive, because “the word ‘may5 is permissive.” La. R.S. 1:8.

12Thus, because a court is not limited in its measures of victim protection to identifying only the victim by the use of initials, I find that the use of initials for names of a defendant and/or witness is another available protective measure under La. R.S. 46:1844(W)(3). However, a court should restrict the use of initials for names of a defendant and/or witness to those circumstances in which a victim’s identity may be readily ascertained based on names of the defendant and/or witness.

For the foregoing reasons, I respectfully dissent.

      . State v. R.W.B., 12-0453 (La.4/27/12), 85 So.3d 1280.

      . In light of the guidance provided by this opinion, the case should be re-captioned with the full name of the defendant.


text:
    Jeffrey K. STEGALL v. ORR MOTORS OF LITTLE ROCK, INC. d/b/a Sparks Nissan Kia Real Estate, Inc.
    No. 2013-CC-0174.
    Supreme Court of Louisiana.
    Jan. 23, 2013.
   In re Orr Motors of Little Rock Inc. d/b/a Sparks Nissan Kia Real Estate, LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, Monroe City Court, No. 2010-CV-00612; to the Court of Appeal, Second Circuit, No. 48039-CW CfW 48108-CW.

Stay denied. Writ denied


text:
    Nathaniel CODE v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and James M. LeBlanc, Secretary, Department of Public Safety and Corrections in his Individual and Official Capacity.
    No. 2012-C-2516.
    Supreme Court of Louisiana.
    Jan. 23, 2013.
   In re Code, Nathaniel et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. C585410; to the Court of Appeal, First Circuit, Nos. 2011 CA 1282, 2011 CW 0601.

Denied.


text:
    STATE of Louisiana v. Christopher SEPULVADO.
    No. 2013-KP-0098.
    Supreme Court of Louisiana.
    Jan. 23, 2013.
   In re Sepulvado, Christopher; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. A, No. 77,378.

Denied.


text:
    Donald L. ESSMEIER, et al. v. TOWN OF JONESBORO, et al.
    No. 2013-C-0172.
    Supreme Court of Louisiana.
    Jan. 23, 2013.
   In re Town of Jonesboro, et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. B, No. 32,584; to the Court of Appeal, Second Circuit, No. 47,225-CA.

Denied.


text:
    STATE of Louisiana through James D. “Buddy” CALDWELL v. TOWN OF JONESBORO, et al.
    No. 2013-C-0173.
    Supreme Court of Louisiana.
    Jan. 23, 2013.
   In re Town of Jonesboro, et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. B, No. 33,052; to the Court of Appeal, Second Circuit, No. 47,896-CA.

Denied.


text:
    STATE of Louisiana v. Delbert DAVIS.
    No. 2013-KK-0205.
    Supreme Court of Louisiana.
    Jan. 24, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 512-797; to the Court of Appeal, Fourth Circuit, No. 2013-K-0103.

Denied.

GUIDRY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Allen ETIENNE.
    No. 2013-KD-0226.
    Supreme Court of Louisiana.
    Jan. 24, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 511-253 I; to the Court of Appeal, Fourth Circuit, No. 2013-K-114.

Denied.


text:
    Shelley R. BRIGNAC v. TOWER CREDIT, INC. and Binning Bonding Company, L.L.C. and Stephen Binning Properties, L.L.C.
    No. 2012-C-2636.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Brignac, Shelley R.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 38610; to the Court of Appeal, First Circuit, No. 2011 CA 1894.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Kevin QUATREVINGT.
    No. 2012-KK-2644.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Quatrevingt, Kevin; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court, No. 493820; to the Court of Appeal, First Circuit, No. 2012 KW 1511.

Not considered. Not timely filed. See La. Supreme Court Rule X, § 5(a).


text:
    Rufus J. HAMPTON, III v. FIRST JUDICIAL DISTRICT COURT JUDGE, Presiding.
    No. 2012-CP-2239.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Hampton, III, Rufus J.; — Plaintiff; Applying for Reconsideration of this court’s action dated November 30, 2012, First Judicial District Court, Parish of Caddo.

Not considered. See Supreme Court Rule IX, § 6.


text:
    STATE of Louisiana v. Jerome BRYANT, Jr.
    No. 2012-K-0229.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Bryant Jr., Jerome; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 275-168; to the Court of Appeal, Second Circuit, Nos. 46,-744-KA, 46,745-KA.

Denied.


text:
    CITY OF SHREVEPORT v. Ronald DEBELLO.
    No. 2012-C-0460.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re City of Shreveport; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 541097; to the Court of Appeal, Second Circuit, No. 46,891-CA.

Denied.


text:
    Kirk E. PREST, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION, et al.
    No. 2012-C-0587.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Prest, Kirk E. et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 53-910; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0851.

Denied.


text:
    STATE ex rel. Lorenzo C. WIGGINS v. STATE of Louisiana.
    No. 2012-KH-1188.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Wiggins, Lorenzo C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 08-03-0580; to the Court of Appeal, First Circuit, No. 2012 KW 0176.

Denied.


text:
    STATE of Louisiana v. Ulysses HILL.
    No. 2012-KO-1524.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Hill, Ulysses; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 452-314; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1001.

Denied.


text:
    STATE of Louisiana v. Sherami FREYOU.
    No. 2012-K-1543.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Freyou, Sherami; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. H, No. 09-1490; to the Court of Appeal, Third Circuit, No. 12-32.

Denied.


text:
    STATE of Louisiana v. Joseph A. MYERS.
    No. 2012-K-1544.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Myers, Joseph A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-311-2008; to the Court of Appeal, Third Circuit, No. 12-208.

Denied.


text:
    STATE of Louisiana v. Ricky W. TISDALE.
    No. 2012-K-1548.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Tisdale, Ricky W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 880891; to the Court of Appeal, First Circuit, No. 2011 KA 2159.

Denied.


text:
    STATE of Louisiana v. Kendrick CHRISTMAS.
    No. 2012-K-1551.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Christmas, Kendrick; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, No. 669-09; to the Court of Appeal, First Circuit, No. 2011 KA 2047.

Denied.


text:
    STATE of Louisiana v. Gilbert M. TYLER.
    No. 2012-KO-1552.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Tyler, Gilbert M.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. F, No. 08F0771; to the Court of Appeal, Second Circuit, No. 47,-220-KA.

Denied.


text:
    STATE of Louisiana v. Cornell David HOOD, II.
    No. 2012-K-1579.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Hood II, Cornell David; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 498088; to the Court of Appeal, First Circuit, No. 2012 KA 0006.

Denied.


text:
    STATE of Louisiana v. Louis LAMBERT.
    No. 2012-K-1592.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Lambert, Louis; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court, No. 10-167; to the Court of Appeal, First Circuit, No. 2011 KA 2006.

Denied.


text:
    STATE of Louisiana v. Edwin N. RIVERA.
    No. 2012-KO-1596.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Rivera, Edwin N.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 25274-10; to the Court of Appeal, Third Circuit, No. KA 11-1460.

Denied.


text:
    STATE ex rel. Michael CALLOWAY v. STATE of Louisiana.
    No. 2012-KH-2075.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Calloway, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 89531; to the Court of Appeal, First Circuit, No. 2012 KW 1029.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 98-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Lloyd DAVIS v. STATE of Louisiana.
    No. 2012-KH-2076.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Davis, Lloyd; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 06-5574; to the Court of Appeal, Fifth Circuit, No. 12-KH-600.

Denied.


text:
    STATE ex rel. Glenn BRUMFIELD v. STATE of Louisiana.
    No. 2012-KH-2088.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Brumfield, Glenn; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-5362, 03-2741; to the Court of Appeal, Fifth Circuit, No. 12-KH-275.

Denied.


text:
    STATE ex rel. Stevon ARCHIE v. STATE of Louisiana.
    No. 2012-KH-2091.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Archie, Stevon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 00-CR-1102; to the Court of Appeal, First Circuit, No. 2012 KW 1201.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. See also State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    Cheryl HILL, et al. v. Sid HEBERT, et al.
    No. 2012-CC-2262.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Hebert, Sid; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. G, No. 114131; to the Court of Appeal, Third Circuit, No. CW 12-00547.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Keith ROBERTSON.
    No. 2012-KK-2626.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Robertson, Keith; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 512-171; to the Court of Appeal, Fourth Circuit, No. 2012-K-1551.

Denied.


text:
    SOUTHERN UNION COMPANY v. Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana.
    No. 2012-CC-2634.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re State of Louisiana, Department of Revenue; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 607,336; to the Court of Appeal, First Circuit, No. 2012 CW 1492.

Denied.


text:
    Patrick Arthur PIERSON, William H. Boada, Sr. and Hunley P. Dufour, Jr. v. JEFFERSON PARISH COUNCIL.
    No. 2012-CC-2647.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Boada, Sr., William H.; Dufour, Jr., Hunley P.; Pierson, Patrick Arthur;— Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 719-771; to the Court of Appeal, Fifth Circuit, No. 12-C-809.

Denied.


text:
    IV JEANSONNE v. Julius Lee McCRAINE, III.
    No. 2013-CC-0001.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re McCraine III, Julius Lee; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2008-1806; to the Court of Appeal, Third Circuit, No. CW 12-01212.

Denied.


text:
    J.L. McCRAINE, III v. VOYELLESLAND FARMS, INC.
    No. 2013-CC-0002.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re McCraine III, J.L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2007-0072-A; to the Court of Appeal, Third Circuit, No. CW 12-01211.

Denied.


author: DREW, J.

text:
    ARON’S PHARMACY, Plaintiff-Appellee v. Betty BARTLETT and Betty Best, Defendant-Appellant.
    No. 47,346-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2012.
    Law Offices of Street & Street, Monroe, LA, by C. Daniel Street, for Appellant Betty Best.
    Crawford & Ogg by Ramsey L. Ogg, for Appellee.
    Before CARAWAY, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

hln this suit on an open account, a default judgment was granted against an elderly mother, Betty Bartlett, and her daughter, Betty Best, ordering them to pay the amount owed as well as attorney fees.

Best filed a motion for new trial and/or nullity of judgment in which she contended that the account belonged to her mother and that she was not responsible for the debt owed to Aron’s Pharmacy. Best also contended that after being served with the lawsuit, she spoke with the pharmacy’s attorney, who told her that he would have her removed from the lawsuit, and as a result, she took no further actions regarding the lawsuit. The trial court denied the motion for new trial and dismissed the motion for nullity of judgment without prejudice. Best has appealed. Bartlett, who is unrepresented by counsel, has not appealed.

We vacate the default judgment insofar as it affects the daughter and remand for further proceedings.

DISCUSSION

Best argues on appeal that a judgment could not be granted in favor of Aron’s Pharmacy as it is not a legal entity.

La. C.C.P. art. 681 states, “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” Comment (b) to art. 681 states that the article serves as the basis for the peremptory exception of no right of action. This court may notice the absence of a right of action on its own motion. La. C.C.P. art. 927(B).

|gA proper analysis of an exception of no right of action requires a court to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C.C.P. art. 927; Howard v. Administrators of Tulane Educ. Fund, 2007-2224 (La.7/1/08), 986 So.2d 47. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit; it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Reese v. State Dept. of Public Safety and Corrections, 2003-1615 (La.2/20/04), 866 So.2d 244.

The analysis for the exception of no right of action begins with the pleadings. Howard, supra. The petition in this matter starts by stating that Aron’s Pharmacy is a sole proprietorship.

A sole proprietorship is not a legal entity, but is merely a designation assigned to a manner of doing business by an individual. While the individual involved in the sole proprietorship may consider the business to be separate and distinct from his/her person, there exists no legal distinction between the individual and the business. Robinson v. Heard, 2001-1697 (La.2/26/02), 809 So.2d 943; Tedeton v. Tedeton, 46,901 (La.App.2d Cir.2/8/12), 87 So.3d 914.

La. C.C.P. art. 687 states, “A person who does business under a trade name shall sue in his own name to enforce a right created by or arising out of the doing of such business.” Clearly, Aron’s Pharmacy was without a right of action to bring this lawsuit. The suit should have been filed in the | -¡name of Carl Aron, the owner of the pharmacy. Accordingly, we supply the exception of no right of action in this matter and vacate the default judgment.

La. C.C.P. art. 934 allows for a judgment sustaining a peremptory exception to order an amendment of the petition when the grounds of the objection pleaded by the exception may be removed by such amendment. The grounds for objection could be removed by making Carl Aron the party plaintiff. Therefore, we remand this matter to the trial court and grant Aron’s Pharmacy leave of court to amend the petition to substitute Carl Aron as party plaintiff. Of course, Best will be allowed the legal delays under La. C.C.P. art. 1001 and 1151 to file an answer to the amended petition.

DECREE

At Aron’s Pharmacy’s costs, we vacate the default judgment insofar as it affects Betty Best and remand for further proceedings. The judgment remains final as to Betty Bartlett.

VACATED IN PART AND REMANDED.


author: SEXTON, Judge Pro Tem.

text:
    Dennis QUILLIAN and Betty G. Quillian, Plaintiffs-Appellants v. DIXIE BONDED WAREHOUSE and XYZ Insurance Co., Defendants-Appellees.
    No. 47,330-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2012.
    Rehearing Denied Sept. 21, 2012.

      Rountree Law Offices, Monroe, LA, by James A. Rountree, for Appellants.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Scott L. Zimmer, Gregg A. Wilkes, for Appellee, Dixie Bonded Warehouse, Inc.
    Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, by Trenton J. Oubre, James R. Raines, for Appellee, Swift Transportation Co.
    Before CARAWAY, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

|,In this tort action, Plaintiffs, Dennis and Betty G. Quillian (collectively “Mr. Quillian”), appeal the judgment of the trial court finding that Mr. Quillian was solely at fault in causing an accident that resulted in his injury and, thus, finding no liability on the part of Defendant, Dixie Bonded Warehouse (“Dixie”) and dismissing the Quillians’ claim with prejudice. For the reasons stated herein, we affirm.

FACTS and TESTIMONY

Mr. Quillian was allegedly injured when he opened the back doors of his trailer and was struck by a bundle of corrugated paper that had shifted during transit from Dixie, in West Monroe, to Plastipak in Pineville. Mr. Quillian was a truck driver for Swift Transportation Company, Inc. (“Swift Transportation”) and, on the day of the accident, was to transport a load of corrugated paper from Dixie to Plastipak. The bundles of corrugated paper are manufactured by Georgia Pacific and stored by Dixie pursuant to a contract between the two companies. This contract provides that Dixie is responsible for “properly and securely palletfing]” the bundles for shipment and for “loading, staking, and pallet-ing the Materials in a safe and secure manner.” Dixie was also under instructions from Georgia Pacific to secure the cargo with dunnage or air bags that were supplied by Georgia Pacific.

Air bags are brown paper bags lined with plastic that are inserted between the cargo as it is loaded and then filled with compressed air pressing the cargo against the walls of the trailer. According to the testimony of other drivers and the expert testimony of Andrew Sievers, a ^safety consultant in vehicle accident litigation, air bags prevent the load from moving sideways (and to a lesser extent forward or backward) and from falling internally and becoming unstable during transit. Mr. Sievers testified that the “[pjurpose of airbag is for the safety of the cargo, not the safety of the people,” meaning that the air bags hold the cargo in place to prevent damage to the cargo during transit. Mike Roberts, shipping and transportation manager with Georgia Pacific, testified that Georgia Pacific regulations require air bags on a full load to secure cargo. Significantly, air bags were also available and could be installed at Georgia Pacific’s office facility, which is in the vicinity of the Dixie warehouse. Drivers routinely picked up loads from Dixie and then stopped at the nearby Georgia Pacific office for paperwork. In addition, Plastipak required that loads delivered to its plant be secured with air bags.

On the day of the accident, Bobby Foster, the foreman at Dixie, loaded Mr. Quil-lian’s trailer with 52 corrugated paper bundles. Mr. Foster testified that he drives the forklift and handles the paperwork for loading and unloading trailers at Dixie. He loads approximately 8-10 trailers per day and has been doing this type of work for 20 years. Mr. Foster testified that he loaded the bundles in Mr. Quillian’s 53 foot trailer in a staggered format and the bundles were double-stacked, which resulted in a stair-step formation of bundles with more bundles on the bottom level than on the top. The bottom level of bundles approached the 48 foot mark in the trailer, leaving several feet between the bottom level of bundles and the trailer doors. Mr. Foster testified that, normally, air bags would be inserted during |sthe loading process and that these bags reduce the amount of side-to-side shifting of the cargo.

According to Mr. Foster and Dixie owner Richard McGivern, Dixie’s air compressor was broken on that date; and, therefore, air bags were not used to secure the load in Mr. Quillian’s trailer. Mr. Foster testified that he advised Mr. Quillian of this and told him that he could get air bags at the Georgia Pacific office where Mr. Quillian was picking up his paperwork. According to Mr. Foster, Mr. Quillian replied that he was only going 120 miles and that he did not need air bags. Mr. McGi-vern testified that he was in constant contact with Georgia Pacific and that those in charge at Georgia Pacific and the dedicated fleet drivers were all aware that the compressor was down and that, if they wanted air bags, the driver was to go by the Georgia Pacific office to have air bags put in with the cargo. Mr. McGivern testified that the compressor was usually located on the Dixie loading dock and it was common knowledge that the compressor was down. In addition, Mr. Quillian was at Dixie almost daily and there was no doubt in Mr. McGivern’s mind that Mr. Quillian knew that the compressor was broken.

Mr. Quillian, however, maintains that he was unaware that air bags had not been inserted during the loading process and he would not have transported the cargo without the air bags had he known. Mr. Quillian testified that, while Mr. Foster was loading his trailer, he was assisting Dixie by moving trailers around on the premises. Mr. McGivern denied this in his testimony and Mr. Foster stated that Mr. Quillian was not allowed to 14move trailers. He testified that Mr. Quillian was on the dock talking with the other drivers while his trailer was being loaded. Mr. Quillian testified that, after the trailer was loaded, he pulled the trailer forward about ten feet, visually inspected the load, which appeared to him to be secure, and installed a load lock on the bottom row of bundles and closed the trailer doors.

The record contains much testimony about the necessity for, and proper placement of, load locks. Load locks are the property of the carrier and are installed by the driver. Mr. Roberts with Georgia Pacific testified that Georgia Pacific requires two load locks to secure cargo. As stated, Mr. Quillian installed one load lock on the bottom row of bundles. When asked why he did not install a load lock on the top row of bundles, Mr. Quillian replied that he could not climb on the bundles as they were unstable and so it was not safe to do so. In this regard, we note that Mr. Quil-lian testified that he did not observe the loading of the trailer and was never on the loading dock. In fact, Mr. Quillian testified that he was not allowed on the loading dock.

Mr. Foster, however, testified that it is normal practice for drivers to watch from the loading dock as he loads a trailer and to install load locks during the loading process. Mr. McGivern testified that he never instructed a driver that he could not be on the loading dock. He explained that the drivers would place the load locks and Mr. Foster would place air bags from the loading dock after trucks were loaded. Drivers would inspect the cargo after loading from the loading dock. Further, Mr. Sievers testified that the |fimost appropriate place to install a load lock on this particular load of cargo would have been on the top level of bundles because it was the upper level that was subject to moving or tumbling toward the back of the trailer during transit. In addition, Ronald Baird, a friend and co-worker of Mr. Quillian’s at Swift Transportation, confirmed in his testimony that two load locks were used when there were two stacks of cargo, as in this case. If there was only one level of cargo, only one load lock was needed.

In any event, Mr. Quillian testified that he drove to Pineville and had no indication during the drive that the load was shifting. Once at Plastipak, he opened the right door uneventfully. Mr. Quillian testified that he looked in the trailer, but did not notice any bundles out of place. He stated that he then jerked on the left door; and, when the door opened, a bundle fell out of the truck and struck him on his right side head, neck and shoulder area causing him to fall to his knees and sustain injuries.

There are discrepancies in the testimony regarding Mr. Quillian’s failure to see a bundle leaning on the left door and the manner in which Mr. Quillian opened the left door. As stated, Mr. Quillian maintains that he looked into the trailer and did not see any bundle(s) out of place. Mr. Quillian explained that he was standing behind the left door unlatching the two latches:

A: And as I pulled, that load, wherever it was it at, it came and hit this door, and when it hit the door it spun me around like that, and then the unit fell on me.
Q: Did it take the door out of your hand?
A: Yeah. It took my hand off it just as fast.
IfiQ: So — but you were behind that door when you were opening it?
A: Yes, sir. Until it caught my shoulder and spinned me around, you know, in the opening there.

On the other hand, Mr. Sievers testified that, in order for the bundle to have fallen out like Mr. Quillian suggests, it would have to have been leaning on the left door and it would have been in plain view had Mr. Quillian looked in the trailer after opening the right door. Mr. Sievers opined that “[f]or [the bundle] to come out it has to be right up against the trailer door.” He repeatedly stated that there would be no line of sight problem once the right door was open:

All you’ve got to do is stick your head in there and you can see the whole distance of that door from the center of the door all the way up to the left hand wall. Absolutely you can see in there.... It’s there to be seen.... All you’ve got to do is look ... It’s not an issue of do I have enough light or do I have enough visibility, it’s — there’s plenty of room.

Next, there is considerable disagreement about whether Mr. Quillian properly opened the left door. Mr. Sievers testified that drivers are trained to use the left door as a shield to prevent injury such as the one claimed by Mr. Quillian. In his deposition, Mr. Quillian did not mention opening the left door in this fashion. At trial, however, he testified that he did use the left door as a shield, but that the door did not hit him; rather, the cargo hit him on the right side. Mr. Sievers explained that, if Mr. Quillian did use the door as a shield, it was impossible for the bundle to hit him in the right side head/neck/to.’so region. According to Mr. Sievers, the bundle would have caused the door to hit Mr. Quillian and might possibly have hit his lower legs as it fell to the ground. Mr. Sievers explained:

|7What I’m saying — that it doesn’t make sense. His story doesn’t make sense. If he’s using the trailer door as a shield he doesn’t get hit on the right side of his face. The door hits him, not the cargo. And the cargo would hit him probably in the legs so it doesn’t make sense. So there’s a factual issue in my opinion based on years of experience of having drivers do similar things and handling these exact same kind of accidents as an expert witness I don’t know how it could happen the way he describes it if he’s in fact using the door as a shield.

In Mr. Sievers’ expert opinion, in order for Mr. Quillian to have been hit by the bundle as he described, he would have to have been standing in the breach — the open space as the left door opens — and would have been pushing the left door open, thereby placing himself in a position to be hit by falling cargo.

Furthermore, we note that Mr. Baird testified that Mr. Quillian related to him that he had opened the doors to the trailer, taken the load locks off and had turned his back to the trailer to bring the locks down to size so that he could secure them back onto the truck when the bundle fell out of the trailer and hit him on the back of the head and neck. On the other hand, another friend and fellow truck driver of Mr. Quillian’s, Sam Rymer, testified that he was present at the time at the time of the accident. Mr. Rymer testified that he was in line waiting for dock space to unload his trailer. He stated that he could see the back end of Mr. Quillian’s trailer and observed Mr. Quillian open the right door and he “went around the other side” and opened the left door, which he had to jerk on to get open. Mr. Rymer explained that he “couldn’t see everything exactly what side it hit him on, but.... that thing came out and he went to the ground.”

| sAfter the accident, Mr. Quillian drove back to West Monroe. He sought medical attention for his injuries the following day. According to Mr. Quillian, there were no outward signs of injury, other than a possible abrasion. He did, however, undergo several surgeries for upper back issues. There was also evidence that Mr. Quillian suffers from degenerative disk disease and had some back issues prior to the instant injury.

Mr. Quillian ultimately filed this lawsuit against Dixie for damages and Swift Transportation intervened for reimbursement. After a bench trial, which included a visit by the trial judge to the loading dock at Dixie, the judge found that Mr. Quillian was the sole “fault source” for this accident. In reasons for judgment, the trial judge stated that Mr. Quillian failed to produce any evidence of state or federal regulations or favorable industry standards requiring the use of air bags. He further found that Mr. Quillian failed to inspect his load prior to leaving Dixie. Finally, making a credibility determination, he found that the evidence “profoundly demonstrated” that Mr. Quillian failed to properly open the doors of his truck when he arrived at Plastipak, ie., that Mr. Quillian did not use the door as a shield or stand to the side and that he provided more than one version of events. Accordingly, the trial judge ruled in favor of Dixie and dismissed Mr. Quillian’s claim with prejudice. This appeal ensued.

DISCUSSION

Expert Witness

As a threshold matter, we note that Mr. Quillian challenges the trial judge’s refusal to allow the testimony of his truck safety expert. The identity of expert witnesses must be disclosed at least 90 days prior to trial in the absence of a contrary order of the court. La. C.C.P. art. 1425. A scheduling order of the court requiring a “will call” list of witnesses within three weeks of trial is not such a contrary order allowing the addition of expert witnesses who have not been otherwise timely identified. Since Mr. Quillian’s potential expert witness was identified only 60 days prior to trial, the trial judge was within his discretion in disallowing his testimony.

Determination of Fault

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993); Holland v. State Farm Mutual Automobile Insurance Company, 42,753 (La.App.2d Cir.12/05/07), 973 So.2d 134. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra.

| mWhere two permissible -views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, supra. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Rosell v. ESCO, supra.

In the case sub judice, there was differing testimony on each of the key factual findings of the trial judge. First, the testimony established that air bags are typically used to prevent cargo from falling internally and moving side to side. Mr. Sievers testified that the use of air bags is primarily to prevent damage to the cargo, rather than to prevent injury to drivers. In any event, Mr. Foster testified that Mr. Quilli-an knew he did not have air bags in the load and Mr. Quillian admitted that he knew that air bags were available at the Georgia Pacific office near Dixie. Mr. Foster further testified that Mr. Quillian told him that he did not need air bags on the load because he was only traveling a short distance to Pineville. Though Mr. Quillian disputes this testimony, the trial judge credited Mr. Foster’s testimony and our reading of the testimony as a whole reveals no abuse of discretion in that credibility call.

Further, Mr. Quillian agreed that load locks are the main safety mechanism to prevent cargo from falling out when the doors to the Intrailer are opened. Georgia Pacific safety regulations require two load locks. Mr. Quillian, however, installed only one load lock on the bottom level of bundles. According to Mr. Foster, Mr. Quillian could have installed a second load lock on the top level during loading if Mr. Quillian had asked Mr. Foster to stop the loading process to allow him to do so. Moreover, recall that Mr. Sievers testified that the most appropriate place for a load lock on this type of load is on the top level of bundles to prevent the top level of bun-dies from toppling toward the back of the trailer, exactly what happened in this case. It does not seem to be in dispute that a load lock placed on the upper level of bundles would have prevented the backward movement of the bundles and, thus, prevented this accident.

The record also contains contradictory evidence and opinion as to whether Mr. Quillian properly inspected the load prior to leaving Dixie. Mr. Quillian testified that he pulled the trailer about ten feet from the loading dock and observed the load from the ground and that it “looked good.” He claims that he did not notice the absence of air bags. He placed the one load lock, closed and sealed the doors and left for Pineville. Mr. Sievers testified that this was not an inspection of the load and Mr. Foster testified that most drivers observe the trailer as it is being loaded and are allowed on the loading dock to inspect the load prior to leaving Dixie. Mr. Quillian did not inspect the load from the dock. Again, faced with two permissible views of this evidence, the trial judge reasonably concluded that Mr. Quillian failed to properly inspect the load.

| ^Finally, the testimony regarding the manner in which Mr. Quillian opened the left door of the trailer varies, even among Mr. Quillian’s version(s) of the accident. The record does not reflect any clear error in the trial judge’s acceptance of Mr. Siev-ers’ testimony regarding how the door must have been opened, ie., with Mr. Quil-lian standing in the breach of the doors, in order for the accident to have happened the way Mr. Quillian submits.

Thus, pretermitting an analysis of the respective duties of the parties herein, based on our review of the record, we find no manifest error in the trial judge’s conclusion that Mr. Quillian was 100 percent at fault for this accident. The record contains a reasonable factual basis for each of the trial judge’s factual findings. In addition, we afford much deference to the trial judge’s determinations of credibility of the witnesses and we will not disturb these findings on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Dixie Bonded Warehouse, Inc., and against Dennis and Betty G. Quillian and dismissing their claims with prejudice, is affirmed. Costs of appeal are assessed to Dennis and Betty G. Quillian.

AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, DREW, MOORE & SEXTON (Pro Tempore), JJ.

Rehearing denied.

      . According to his testimony, Mr. Quillian could not be seen at the clinic to which he was referred by his insurance carrier because it was closed when he returned to West Monroe. He went to the clinic the next day.


author: GASKINS, J.

text:
    Mary Ann RICHARDS, Plaintiff-Appellant v. James Bruce RICHARDS, Defendant-Appellee.
    No. 47,492-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Gary D. Nunn, for Plaintiff-Appellant.
    Darrell R. Avery, Jonesboro, LA, for Defendant-Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

_jjMary Ann Richards appeals from a trial court judgment denying her request to reestablish final periodic spousal support. She contends that the trial court erred in concluding that the termination of his child support obligation was not a sufficient basis for ordering her former husband, James Bruce Richards, to pay spousal support again. We reverse and remand.

FACTS

In June 2011, Ms. Richards filed a motion to modify a previous spousal support judgment and for contempt. In her petition, she alleged that she had previously been found without fault in the breakup of the marriage and granted permanent spousal support of $400 per month, which terminated effective August 13, 2009. She contended that since the termination of alimony, a substantial change of circumstances had occurred warranting an award of spousal support. The change was the May 2011 termination of child support of $1,300 per month as a result of the parties’ daughter turning 18 years old and graduating from high school. Ms. Richards alleged that she is disabled and unable to work and that her only source of income is $674 per month in social security disability benefits. She also asserted her former husband’s failure to pay medical bills for the daughter.

In his answer, Mr. Richards admitted that his former wife was found free of fault and that no spousal support order was in effect. He also alleged that he had paid hundreds of dollars in dental expenses for the daughter while the mother had failed to pay her half. Otherwise, he denied Ms. Richards’ allegations.

|2A hearing on the motion was held on November 3, 2011. At a pretrial conference, the trial court apparently indicated that it felt the loss of child support would not constitute a change in circumstances. In court, the parties stipulated that Ms. Richards was no longer receiving the monthly child support payment of $1,300 due to the child turning 18 and graduating from high school. They also stipulated that the child was still living with her mother. Ms. Richards’ monthly income and expense worksheet was admitted into evidence. It listed total monthly living expenses of $1,999, total fixed monthly debt of $60, or total monthly expenses of $2,059, with income of $674. On this form, she requested spousal support of $1,385 per month.

The trial court denied Ms. Richards’ request for final periodic spousal support. The court ruled that child support and spousal support were different matters and that a child turning 18 was not a substantial change in circumstances to increase spousal support. In the event the appellate court disagreed with the trial court ruling and remanded the matter, Mr. Richards reserved his right to argue how much monthly spousal support should be. The medical and insurance issues were continued.

Judgment in conformity with the trial court ruling was signed on November 23, 2011. Ms. Richards appealed from this judgment.

LAW

La. C.C. art. 112, pertaining to the determination of final periodic support, provides:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to |3pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C.The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award. La. R.S. 9:311(A)(1).

An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. La. C.C. art. 114.

In Mizell v. Mizell, 37,004 (La.App.2d Cir.3/7/03), 839 So.2d 1222 (Mizell I), we held that the support of a major child could not be considered a living expense of one of the spouses. In so ruling, we followed the jurisprudence of our brethren in other circuits. See Green v. Green, 432 So.2d 959 (La.App. 4th Cir.1983); Parker v. Parker, 93-817 (La.App. 3d Cir.3/2/94), 634 So.2d 1231; Launey v. Launey, 98-849 (La.App. 3d Cir.12/9/98), 722 So.2d 406. We reiterated this holding again in Mizell v. Mizell, 40,601 (La.App.2d Cir.1/25/06), 920 So.2d 927 (Mizell II).

DISCUSSION

The record indicates that Ms. Richards previously received permanent spousal support of $400 from Mr. Richards but that ,it terminated in August 2009. Ms. Richard now argues that the loss of child support for the parties’ now adult daughter is a change of circumstances justifying awarding permanent spousal support to her again. However, the trial court found that this was not a substantial change.

The courts have generally addressed the issue of children attaining majority in the context of the former spouse seeking to reduce or terminate alimony or spousal support. Where the former wife included items pertaining to support of major children in her expenses, the court found that the needs of major children should have no influence in determining the spouse’s need for alimony. See Laporte v. Howell, 452 So.2d 420 (La.App. 3d Cir.1984); Mizell I, supra; Mizell II, supra. In Hartman v. Hartman, 534 So.2d 1335 (La.App. 4th Cir.1988), the court found that the child reaching majority was not a change in circumstance justifying termination of the wife’s alimony where the daughter was a student who still lived with the mother. The court found that the daughter’s majority had no discernable effect on the husband’s permanent alimony obligation to the wife. In Cromwell v. Cromwell, 419 So.2d 974 (La.App. 3d Cir.1982), the |ficourt affirmed termination of alimony paid by the former husband where he showed several changes in circumstances, including the fact that the children were majors and no longer lived with their mother. In Clary v. Clary, 550 So.2d 854 (La.App. 2d Cir.1989), the appellate court found no alimony reduction warranted where the former wife’s household had been reduced from including two major children (only one of whom actually lived at home) and a minor child who attended boarding school to one major, employed child. The court found any change in financial circumstances of the mother with respect to the youngest child attaining majority was offset by the termination of child support.

In support of his position, Mr. Richards cited Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir.1981). In that case, the father of four minor children was paying a total of $2,000 per month in child support and alimony ($400 per child and $400 in alimony). A provision in the parents’ divorce decree provided that the father would pay child support until the occurrence of certain events pertaining to “each said child”; one of these events was the child reaching age 18. When the oldest of these four children reached majority, instead of reducing the father’s obligation by $400, the trial court increased the monthly amounts to $500 per child and $500 in alimony, to continue the total amount of $2,000 per month. The appellate court observed that the mother had not even contended that there had been a change in circumstances since the amount of alimony and child support was originally set. Additionally, there was no evidence in the record indicating that the mother’s financial needs had increased [ (¡substantially. Finding that without the requisite showing of a change in circumstances in the mother/wife’s financial needs, the appellate court ruled that the increase was improper.

Child support and spousal support are distinct and separate matters. They arise from completely different obligations. Child support arises from parental obligations. La. C.C. art. 227. Final periodic spousal support arises from past marital obligations imposed by La. C.C. art. 112.

We agree with the trial court that the loss of child support, standing alone, cannot carry Ms. Richards’ burden of showing a material change in circumstances. However, we do not believe that the jurisprudence precludes it from being a factor considered by the trial court under the appropriate circumstances. We do not address whether a former spouse seeking support could potentially make this showing where there are fixed, but shared, expenses with the child. (Such expenses could be housing expenses in the form of a house note, which does not decrease when a child leaves home.) From Ms. Richards’ monthly income and expenses worksheet, we are unable to discern that the listed expenses are ones that were previously shared such that the expenses have now increased “materially.”

The appellate record before us is silent on the reason spousal support was terminated in 2009. We also lack information as to any changes in Ms. Richards’ income and expenses from the 2009 judgment until the present.

17Finding that the trial court erred in his conclusion that termination of child support can never be a factor in the determination of permanent spousal support, we reverse and remand for the trial court to decide whether any of the fixed and previously shared expenses are ones that should be considered and to give consideration of the claim for further support under the overall test of La. C.C. art. 112(B).

Also, this case is remanded for the trial court to consider whether Ms. Richards is able to show a material change in circumstances since the previous decree.

CONCLUSION

The judgment of the trial court is reversed and remanded. Costs of this appeal are assessed to the appellee, James Bruce Richards.

REVERSED AND REMANDED.

      . Based upon the dates alleged in her petition, it appears that Ms. Richards filed her instant request for spousal support within the three-year peremptive period set forth in La. C.C. art. 117 for seeking spousal support.


text:
    STATE of Louisiana, Appellee v. Derrick Dewayne GRANT, Appellant.
    No. 47,365-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Law Offices of James A. Williams by James A. Williams, Roger W. Jordan, Jr., for Appellant.
    Charles R. Scott, District Attorney, Lea R. Hall, Jr., J. Dhu Thompson, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

11Following a jury trial, the defendant, Derrick Dewayne Grant, was convicted of attempted second degree murder. He was adjudicated a fourth-felony offender. The trial court sentenced him to the mandatory term of life in prison without benefit of probation, parole, or suspension of sen-, fence. The defendant now appeals. We affirm the defendant’s conviction and sentence.

FACTS

On October 5, 2008, three men were playing dominoes on the front porch of a house on East 71st Street in Shreveport, Louisiana. An SUV stopped in front of the house. Two men armed with assault rifles exited the passenger side of the vehicle and opened fire at the men on the porch. One of the gunmen approached from a vacant lot beside the house while the other approached the front of the house.

One of the men on the porch, Michael Parker, sustained four gunshot wounds— two in the side and one in each leg. He survived the attack, although the doctors were unable to remove all of the bullets due to proximity to the victim’s heart. The other two men, Tawon Parker, the victim’s nephew, and Matthew Perry, the nephew’s cousin, were uninjured.

Scott Marler of the Shreveport Fire Department was driving east on East 70th Street near Thornhill when he heard loud popping noises and saw a tan SUV parked at the intersection of Thornhill and East 71st Street. Both doors on the passenger side were open, and two men were standing outside, firing weapons at a house. The weapons appeared to be long rifles or semi-automatic weapons. Marler turned his vehicle around and went after the lgSUV when it left the scene. He called 911 and reported the shooting and the SUV’s license plate number while following the vehicle onto 1-49 southbound. When Shreveport Police Officer John Stratton approached from oehind them in a marked patrol unit, Marler signaled him which vehicle to follow. Officer Stratton then took over the pursuit.

As Officer Stratton pursued the SUV, it began traveling at a high rate of speed and exited 1-49 onto the westbound Highway 3182 ramp. The officer’s dashboard-mounted video camera documented the high-speed chase. As Officer Stratton followed the SUV on the ramp, a backseat passenger in the SUV leaned out and pointed a long gun at the patrol unit. Officer Stratton heard a loud popping noise and saw something hit his windshield. The officer never stopped his pursuit, and never lost sight of the SUV, within which he clearly saw three black males.

The driver of the SUV lost control of his vehicle twice during the chase. Eventually the SUV stopped in a ditch on West 78th Street, and its occupants fled. According to the officer, all three of the men were armed with long rifles. The men fled on foot through a thicket of bamboo and over a fence that had razor wire on top. Other officers arrived on the scene very quickly and within a few minutes, the initial perimeter was set up and the search for the men began.

A K-9 unit began tracking the scent of the men and alerted to a house at 158 W. 79th Street under which an assault rifle was recovered. The K-9 unit then alerted more strongly to a house at 150 W. 79th where three black males were located. Another assault rifle was found under that house. The [sofficers conducted a knock and talk, encountering the defendant, William Hall, and Ira Ross. The defendant had a fresh cut on his face. The house belonged to the defendant’s girlfriend, La-Sonya Hailey, but the defendant gave permission for a protective sweep of the home to be conducted. The sweep revealed muddy clothes and tennis shoes, some of which were in the process of being laundered at the time they were discovered. The men were arrested and advised of their Miranda rights.

All three men were charged with attempted second degree murder and tried separately. Following a jury trial in June 2006, the defendant was convicted by a vote of 11 to 1. The state filed a habitual offender bill against the defendant. He was adjudicated a fourth-felony offender and sentenced to life in prison at hard labor without benefit of parole, probation or suspension of sentence. In October 2011, he was granted an out-of-time appeal.

BATSON CHALLENGES

In his first assignment of error, the defendant argues that the state systemi-eally struck African-American jurors from the jury venire in violation of the Equal Protection Clause of the 14th Amendment.

14Law

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. The Supreme Court reaffirmed its position that racial discrimination in jury selection offends the Equal Protection Clause of the 14th Amendment in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Louisiana law codifies the Bat-son ruling in La. C. Cr. P. art. 795.

The three-step Batson process was described in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Internal quotations and citations omitted.]

The trial court’s responsibility when presented with a Batson challenge was detailed by the Louisiana Supreme Court in State v. Anderson, 2006-2987 (La.9/9/08), 996 So.2d 973, 1004, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009):

|fiIf defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the state to offer racially neutral explanations for the challenged members. If the race-neutral explanation is tendered, the trial court must decide, in step three of the Batson analysis, whether defendant has proven purposeful discrimination. The race-neutral explanation need not be persuasive or even plausible. It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge.
The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. When a defendant voices a Batson objection to the state’s exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. [Internal quotations and citations omitted.]

The trial court plays a unique role in the dynamics of voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. See State v. Jones, 42,581 (La.App.2d Cir.11/7/07), 968 So.2d 1247.

Body language has been held to constitute a valid, race-neutral basis for defeating a Batson claim. State v. Coleman, 2006-0518 (La.11/2/07), 970 So.2d 511.

Discussion

The state utilized challenges against 11 African-American members of the jury pool. In response, the defense raised a Batson challenge. The Rtrial judge found that the defense had made a prima facie showing of discriminatory strikes and ruled that they should proceed to the second level of inquiry. The state then proceeded to place on the record race-neutral explanations for the strikes. After hearing the state’s explanations, the trial court denied the defense’s Batson motion. The record demonstrated that three of the jurors who served on the defendant’s jury were African-American, as was one alternate.

On appeal, the defendant argues that race-neutral reasons were not given for five prospective jurors: Brandi Hunter, Lekisha Cason, Louis Bonner, Jr., Felicia Smith, and Daniel Francis. He also complains that a bench conversation with Mr. Bonner was not transcribed.

The reasons given by the state for striking Ms. Hunter, Ms. Cason and Ms. Smith were essentially the same — that their responses and body language indicate that they favored defense counsel over the prosecutors. Mr. Bonner’s brother was a homicide victim and, as a result of how that criminal case was handled, Mr. Bonner felt mistreated. Mr. Francis had a cousin who was convicted of armed robbery and the assistant district attorneys trying this case were unsure as to whether they had prosecuted the cousin or whether Mr. Francis had resentment toward the state as a result of the conviction.

The trial court followed the three-step analytical process while deciding the Bat-son challenge. After finding the defense had made a prima facie showing, the court required the state to articulate the basis for each peremptory exception. Although the defendant might have believed that the 17expIanations for striking Ms. Hunter, Ms. Cason, and Ms. Smith were too general, or unsatisfactory, the trial court was present to witness the demeanor of each juror while she answered the questions of the attorneys. The trial court found the explanation for striking each of those jurors to be plausible, and found no discriminatory intent.

As to Mr. Bonner and Mr. Francis, the reasons given by the state were even more compelling. Even though the untran-scribed bench conversation with Mr. Bonner could not be reviewed, the prosecutor clearly articulated his reasoning, and it had nothing to do with race. From the context of the reasoning that was transcribed, it is apparent that Mr. Bonner’s brother had been murdered. The matter was discussed at the bench, and the prosecutor told the court, “[Mr. Bonner] made a statement at the bench that he had a problem with how he was treated. I just was simply unsure how that was going to come out.” The failure to record Mr. Bonner’s bench conference did not prejudice the appeal because the transcript of the voir dire revealed a substantial basis for challenging the juror. The fact, alone, that the bench conference was not transcribed is not grounds for finding error in the trial court’s refusal to find a Batson error, because the explanation given by the prosecutor, on its face, was race-neutral, and there is no need to have the transcript of the bench conference for that decision to be made.

As to Mr. Francis, the prosecutors indicated that they might have prosecuted the juror’s relative. That is a race-neutral reason.

|sThe reviewing court gives great deference to the trial judge’s evaluations of discriminatory intent, and should not reverse them unless they are clearly erroneous. In this case, there appears to be no abuse of discretion in the trial court’s decision to deny the Batson challenges.

This assignment of error lacks merit.

COMMENT ON DEFENDANT’S SILENCE

The defendant contends that the state committed reversible error in referring to his post-arrest silence and that his counsel was ineffective for failing to object to this error.

References to Sanders

At trial, the defendant took the witness stand in his own defense. During his testimony, he denied participating in the shooting with Ross and Hall and suggested that a man named Jackie Sanders — who was deceased at the time of trial — was the third man involved. He testified that he was at home watching television on the day of the offense when Ross and Hall came to the house he shared with his girlfriend. After he admitted them, Hall immediately began asking Ross where Jackie Sanders was, as if he expected Sanders to be coming in behind them. The defendant looked outside for Sanders but did not see him. He put the muddy clothes Hall and Ross were wearing in the washing machine and gave them other clothes to wear. After he saw the K-9 officer outside, he tried to clean up the mud in the bathroom where the washer was. When the police knocked, Hall answered the door. The defendant told the officers they could come in. His attorney asked him why he did that, and he answered:

|flBecause I just, I mean — I mean, how can you not tell the police? I mean, I didn’t — I mean, I had already told them from the jump when it come down, I mean, they — “All I can do is give /all some clothing when people come, you know. That’s on /all.” So, basically, I just told them of course they could come in, you know, and do a visual search or whatever they wanted to do. I let them in.

On cross-examination, the prosecutor asked the defendant:

Q. And with respect to this Jackie Sanders stuff going on, all that, the first time we’re hearing about it is here at your trial, right?
A. Yes, sir.
Q. Okay. And I believe you said that, “How can you not tell the police”— you know, talking about when the/re coming in. “How can you not tell them what’s going on” in response to one of your questions to [defense counsel]; do you recall saying that?
A. Yes, sir.
Q. Well, how come you didn’t tell the police about Jackie Sanders and all that at the time?
A. Because I hadn’t actually laid eyes on Jackie Sanders. I mean, I wasn’t going to tell the police that, “Hey, you got another guy next door.”
Q. Well, you didn’t tell the police anything, did you?
A. No, sir. All I told them is that they can search the house.

After the defendant’s testimony, the defense rested. During closing argument, the prosecutor addressed the issue of the defendant’s theory that Jackie Sanders was the third man at the crime scene and characterized the story as “the oldest defense in the world ... blame it on the dead guy. And I’m going to spring it on the jury on the day of trial.” The prosecutor said, | ](“That’s just stupid. That’s all that it is. And that’s exactly what they’ve given you.”

Discussion

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), precludes the state from impeaching a defendant’s testimony at trial with evidence that he remained silent immediately after his arrest and after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The decision in Doyle rests on the premise that Miranda warnings render the subsequent silence of a defendant “insolubly ambiguous,” and thereby make later use of that silence to impeach his or her exculpatory testimony at trial fundamentally unfair. Doyle, 426 U.S. at 617-618, 96 S.Ct. 2240.

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the court stated that while the Fifth Amendment prevents the prosecution from commenting on the silence of a defendant who asserts the right to remain silent during his criminal trial, it is not violated when a defendant who testifies in his own defense is impeached with his prior silence. Attempted impeachment on cross-examination of a defendant may enhance the reliability of the criminal process; use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. The Fifth Amendment, as applied to the states through the Fourteenth Amendment, is not violated by the use of pre-arrest silence to impeach a criminal defendant’s credibility; impeachment follows the defendant’s own decision |nto cast aside his cloak of silence and advances the truth-finding function of the criminal trial. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances from which that fact naturally would have been asserted.

In State v. Richards, 99-0067 (La.9/17/99), 750 So.2d 940, the court discussed the waiver principle inherent in a defendant’s choice to take the stand and testify on his own behalf. The court stated as follows:

Louisiana has long subscribed to the general waiver principle that by taking the stand at trial a defendant exposes himself to cross-examination on any relevant matter as any other witness. La. C.E. art. 611(B), cmt. (e) (“There is no intent to change the rule that a defendant who takes the witness stand in a criminal case is regarded as any other witness and is subject to examination on the whole case as was provided under former R.S. 15:462.”); State v. Shelby, 308 So.2d 279, 282-83 (La.1975); State v. Pellerin, 286 So.2d 639, 642 (La.1973). In this respect, Louisiana’s law adheres to federal law. See Mitchell v. United States, 526 U.S. 314, 319-21, 119 S.Ct. 1307, 1311-12, 143 L.Ed.2d 424 (1999) (“It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.... The privilege is waived for the matters to which the witness testifies, and the scope of the ‘waiver is determined by the scope of relevant cross-examination.’ ”) (quoting Brown v. United States, 356 U.S. 148, 154-155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958)).
Louisiana has also followed common law tradition and allowed the substantive use of a defendant’s silence as a tacit admission under certain circumstances. State v. McClain, 254 La. 56, 222 So.2d 855, 857 (1969); State v. Carey, 628 So.2d 27, 32 (La.App. 2d Cir.1993) (on reh’g). At least as a general matter, this state has thus recognized that “aside from the privilege against compelled self-incrimination ... in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause.” Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976). As with any other evidentiary question, the trial court retains the discretion to weigh the probative value of the defendant’s prearrest silence against its prejudicial impact. La. |12C.E. art., 403. In this case, however, defense counsel failed to provide any grounds for her objection to the prosecutor’s line of cross-examination, and she thereby precluded review of any basis for excluding evidence of the defendant’s prearrest silence. State v. Dupar, 353 So.2d 272, 273 (La.1977) (“An objection stating no basis presents nothing for this court to review.”); State v. Burnette, 337 So.2d 1096, 1100 (La.1976) (same). Richards, supra, 750 So.2d at 941-942.

A Doyle error is subject to a harmless error review. The harmless error inquiry is “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” A Doyle violation that is not harmless under this harmless error test constitutes reversible error. State v. Langston, 43,923 (La.App.2d Cir.2/25/09), 3 So.3d 707, writ denied, 2009-0696 (La.12/11/09), 23 So.3d 912.

The defendant put Jackie Sanders and his alleged role in the instant crime at issue in his opening statement, during his questioning of state witnesses, and in his own testimony on direct examination by defense counsel. Based on the foregoing law, it was not reversible error for the prosecution to question the defendant, who took the stand in his own defense, about Sanders, and why the defendant did not tell the police about Sanders before his own arrest. The questions asked of the defendant addressed a time period pre-arrest, when the defendant allowed them to come in for a protective sweep. The questions do not imply that the prosecution is attempting to use the defendant’s post-arrest, post-Miranda, silence against him to infer guilt.

The defendant’s attorney raised the Sanders issue during the cross-examination of Hall, a prosecution witness who emphatically denied that Sanders had any involvement in the offense and who steadfastly identified 11sthe defendant as a participant in the shooting. Defense counsel also asked Tawon Parker questions about Sanders during cross-examination. Later, when the defendant took the stand, the state had the right to impeach the defendant’s testimony by bringing up the fact that the defendant had not mentioned Sanders when the police were conducting a knock-and-talk at the house, asking him what had happened.

Ineffective Assistance of Counsel

The defendant also argues that his Sixth Amendment right to effective assistance of counsel was violated because his attorney did not object to all of these violations of his rights as they were occurring during trial. He argues that his attorney did not object, move for a mistrial, or request an admonition regarding this line of questioning.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A |14claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La. App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have 11fibeen different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 658 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.

The record does not support a conclusion that the defendant received ineffective assistance of counsel as a result of the defense attorney’s failure to object to this line of questioning. The defendant chose to take the stand and mentioned Sanders himself; the state was then free to question him to impeach his testimony. Any objection by the defendant’s counsel to this line of questioning would have been overruled because it was not improper. Therefore, the defendant has failed to meet the Strickland test proving that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The attorney’s representation did not fall below the standard of reasonableness and competency required by prevailing professional standards demanded for attorneys in criminal cases.

Further, the defendant failed to show that counsel’s allegedly deficient performance prejudiced his defense. There was no showing of errors so serious as to deprive the defendant of a fair trial. The defendant did not prove actual prejudice, and failed to show that, but for his counsel’s | ^unprofessional errors, there was a reasonable probability the outcome of the trial would have been different.

This assignment of error is without merit.

INSTRUCTION ON ACCOMPLICE TESTIMONY

The defendant contends that defense counsel should have requested a jury instruction advising the jurors to view the testimony of his alleged accomplice, William Hall, with caution. According to the defendant, trial counsel’s failure to seek such an instruction constituted ineffective assistance. We find that the record before us is sufficient to determine whether defense counsel’s performance was ineffective.

Hall’s Testimony

Hall testified at the defendant’s trial that he was the driver of the SUV and that the defendant and Ross were the shooters. According to Hall, their intended target was Tawon Parker, who had shot Ross the week before and stolen drugs from him which belonged to the defendant, a self-confessed drug dealer. Hall stated that the SUV was rented specifically for the shooting through the defendant’s girlfriend. They planned to hide the vehicle after the shooting, then set fire to it and report it stolen. Hall testified that Ross was in the front passenger seat and the defendant was in the rear passenger seat. He identified the defendant as the SUV occupant who hung out the window and fired at the police during the subsequent | i7pursuit. According to Hall, the defendant received a laceration over his eye during their flight from the police when they climbed over a barbed wire fence and ran through bamboo after they ditched the SUV. Upon arriving at the defendant’s house, Hall testified that he had to kick the door in because they left the key in the SUV. They changed their clothes, which were muddy from their flight, and put them in the washing machine. Hall further testified that since their arrests, both Ross and the defendant told him to implicate Sanders instead of the defendant.

Law

In Louisiana, an accomplice is qualified to testify against a co-perpetrator even if the state offers him inducements to testify. The inducements would merely affect the witness’s credibility. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047. A conviction may be sustained by the uncorroborated testimony of an accomplice, although the jury should be instructed to treat the testimony with caution. State v. Hughes, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). When the accomplice’s testimony is materially corroborated by other evidence, such language is not required. State v. Hughes, supra; State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). An accomplice’s testimony is materially corroborated “if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some | ^relationship to the situation.” State v. Hughes, supra; State v. Castleberry, supra.

The testimony given by Hall regarding the identification of the defendant as a participant in the shooting is independently corroborated by the circumstantial evidence present in this case. Like Marler, the witness who observed the shooting, Hall placed the shooters as exiting the passenger side doors of the SUV to open fire on the men on the porch.' He also testified as to the procurement of the SUV by the defendant’s girlfriend, the defendant’s facial wound, the washing of the clothes, and the location of the recovered weapons.

Hall testified that he kicked in the back door to the defendant’s house because they left the key in the SUV and needed to enter quickly to elude the police. The defendant testified that when he was opening the door for Hall and Ross, Hall “[applied] a little, pressure to the back door” but that the door was not “busted.” The canine officer who approached the house observed that the door appeared to have been recently kicked in. While the police officer who followed the men during the car chase could not facially identify the defendant, he was able to say that he matched the qualities that he was able to observe.

While the defendant and his girlfriend testified as to innocent explanations for several portions of Hall’s testimony, they often ended up contradicting each other. Hall testified that the SUV was rented by the defendant’s girlfriend specifically for the shooting. The girlfriend testified that she rented it to go to Six Flags and visit family; however, the defendant 119testified that the SUV was not rented to go to Six Flags, which was closed, but to go to Traders’ Village and buy some furniture and rims. As to the cut on the defendant’s face, Hall said it was received while they were jumping the fence during the flight from the police. According to Hall, the cut was bleeding hard at the defendant’s house and they tried to clean it up and stop the bleeding. Panicked, the three men decided that they would say the defendant received it in a fight with his girlfriend. While the defendant and his girlfriend testified she gave him the cut on his face by throwing a jar at him during a fight, they could not agree whether the fight was one or two nights before the shooting. The girlfriend was evasive when confronted with her statement to the police in which she stated that she only scratched the defendant during an argument. A police officer who searched the defendant’s house described the wound as fresh and untreated and said that he could tell blood had been wiped from it; he also observed that there was no scab or Band-Aid, as one might expect with an older wound.

We also note that on the issue of witness credibility, the trial court instructed the jury to consider the witnesses’ “interest or lack of interest in the outcome of the case; and the extent to which the testimony is supported or contradicted by other evidence.” The trial court further instructed the jury that the “testimony of a witness may be discredited by showing that the witness will benefit in some way by the defendant’s conviction or acquittal, that the witness is prejudiced, or that the witness has any other reason or motive for not telling the truth.” We find that, given the independent corroborating testimony, the trial court’s instruction provided sufficient | ¡^guidance to the jury for evaluating Hall’s testimony. See State v. Hughes, supra.

Under the facts presented here, the additional cautionary instruction on accomplice testimony was not warranted. As a result, we cannot say that defense counsel was ineffective for failing to request the jury instruction pertaining to accomplice testimony. There is no showing of deficiency in the defendant’s representation, much less deficiency prejudicing his defense as required under Strickland, supra.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Ira Ross’ conviction for attempted second degree murder and sentence of 50 years at hard labor without benefits were affirmed in State v. Ross, 42,399 (La.App.2d Cir.8/29/07), 965 So.2d 610.
      William Hall was also convicted of attempted second degree murder. A habitual offender bill was filed against him. However, he entered into an agreement with the state by which the habitual offender bill would be withdrawn and he would receive a sentence of 15 years at hard labor without benefits in exchange for his truthful testimony against the defendant in the instant trial.

      . Interestingly, the trial court likewise denied the reverse-Batson challenge by the state when defense counsel gave similar reasons about rapport and feelings for the other side to explain his strikes against white prospective jurors.

      . Even if the state’s reference to Sanders was a Doyle violation, we find that it was harmless error, given the strong direct and circumstantial evidence establishing the defendant’s guilt. Furthermore, we do not believe the lack of objection to the state’s mentions of Sanders would have constituted ineffective assistance of counsel under the facts of this case because it is unlikely that it would have changed the outcome of the trial.