author: AMY, Judge.

text:
    STATE of Louisiana v. Wardell Christopher WILLIAMS.
    No. 13-497.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      James C. Downs, District Attorney, Michael W. Shannon, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Wardell Christopher Williams.
    Wardell Christopher Williams, Jackson, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

kThe defendant was found guilty of three counts of attempted second degree murder and one count of possession of a firearm by a convicted felon. The trial court imposed sentences of forty years at hard labor for each of the defendant’s three convictions for attempted second degree murder, and ten years at hard labor for his conviction for possession of a firearm by a convicted felon. The trial court ordered that the defendant’s sentences run concurrently with each other and that they be served without the benefit of probation, parole, or other suspension of sentence. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, in the early morning hours of October 24, 2010, several shots were fired in a crowded nightclub in Alexandria, Louisiana. Three nightclub patrons suffered gunshot wounds. According to the State, the defendant, War-dell Christopher Williams, repeatedly asked a woman in the group that included the victims to dance and was rebuffed. One of the victims asked the defendant to leave the woman alone. The State contends that the defendant was in possession of a .380 Bersa pistol that was linked to the shooting. Additionally, the State contends that the defendant confessed to the crime. The defendant was subsequently charged with three counts of attempted second degree murder, violations of La. R.S. 14:27 and La.R.S. 14:30.1, and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. After a trial, the jury found the defendant guilty of all four counts of the bill of information.

For each of the three counts of attempted second degree murder, the trial court imposed sentences of forty years at hard labor. For the count of possession of a firearm by a convicted felon, the trial court imposed a sentence of ten years at |2hard labor. Further, the trial court ordered that the defendant’s sentences be served concurrently to each other and that they be served without benefit of probation, parole, or suspension of sentence.

The defendant appeals. He asserts that:

1. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Wardell Williams either directly committed or was a principal to attempted second degree murder of Carmilla Peterson.
2. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Wardell Williams either directly committed or was a principal to attempted second degree murder of Ernest Sherman.
3. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Wardell Williams either directly committed or was a principal to attempted second degree murder of Lo-van Sherman.
4. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Wardell Williams possessed a firearm in Rapides Parish.
5. The trial court erred in its role as gatekeeper when it permitted Michael Stelly to testify as an expert in firearm identification about the comparison of the firearm to the bullet and to the casings found at the scene.
6. The trial court erred in failing to sustain counsel’s objection to the prosecution’s assertions in rebuttal closing argument that the jury should not consider the responsive verdicts.

The defendant has also filed a pro se appellate brief, therein asserting as error that the trial court allowed the admission of other crimes evidence, which was inflammatory and without a proper foundation.

IsDiscussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. We find no errors patent requiring action by this court.

Sufficiency of the Evidence

The majority of the defendant’s counseled assignments of error concern the sufficiency of the evidence. In State v. Bryant, 12-233 (La.10/16/12), 101 So.3d 429, the Louisiana supreme court addressed the sufficiency of the evidence claims, reiterating that the appellate review of such claims is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676 (La.1984). In applying the Jackson v. Virginia standard, the appellate court must determine that, when viewed in the light most favorable to the prosecution, the evidence is “sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Bryant, 101 So.3d at 432. See also La.Code Crim.P. art. 821.

In State v. Spears, 05-964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222-23, the supreme court stated that:

constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 528 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law.

|/‘Evidence may be either direct or circumstantial.” State v. Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, — U.S. -, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams, 33,881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438.

In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating:

Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing |sinferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

Here, the defendant was charged with attempted second-degree murder, violations of La.R.S. 14:27 and La.R.S. 14:30.1, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. As relevant herein, La.R.S. 14:30.1 states that “[sjecond degree murder is the killing of a human being: (1) [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” Louisiana Revised Statutes 14:27 addresses “attempt,” stating that:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Further, the crime of possession of a firearm by a convicted felon is set out in La.R.S. 14:95.1, which states, in relevant part, that “[i]t is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony ... to possess a firearm or carry a concealed weapon.” However, La.R.S. 14:95.1 “shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.” La.R.S. 14:95.1(0.

Here, the State offered the testimony of several witnesses, including both factual testimony and expert testimony. Some of the witnesses, including the victims, Car-milla Peterson, Ernest Sherman, and Lo-van Sherman, III, testified that they had attended a wedding reception earlier in the evening and decided to |ficontinue on to Club Platinum. One of the members of their group was Tim’Myra Daniels. According to Ms. Peterson and Lovan Sherman, a man repeatedly asked Ms. Daniels to dance, and Ms. Daniels repeatedly refused. Lovan Sherman testified that he eventually asked the man to leave Ms. Daniels alone. Although Ms. Daniels could not identify the man, Ms. Peterson and Lovan Sherman both identified the defendant as the person who asked Ms. Daniels to dance. Ms. Peterson also testified that there was a shorter, dark-skinned, and angry-looking man whom she had seen speaking with the defendant earlier. According to Ms. Peterson, the shorter man' made her nervous, and he attempted to put a cigarette out on her brother’s forehead.

Ms. Peterson and Lovan Sherman testified that shots were fired some ten to twenty minutes after Lovan Sherman asked the defendant to leave Ms. Daniels alone. None of the witnesses testified that they saw the shooter. However, Roderick Hall, one of the bouncers at the club, testified that he saw the defendant, who he identified as “Blake” or “Maleke,” running out of the side door to the club, “stuffing something in his pants.”

Ms. Peterson testified that she was struck by a bullet in the middle of her lower-mid back. Lovan Sherman testified that one bullet passed through his arm, one went across his stomach, and another bullet is still in his hip. Ernest Sherman testified that he was shot in the thigh. All three victims were treated for their injuries. The bullet lodged in Ms. Peterson’s back was later removed and sent to |7the crime lab for processing. Further, the State presented testimony that three Tul brand .380 fired cartridge casings were recovered from the nightclub.

The defendant’s ex-girlfriend, Alea Duell, testified that the defendant told her that he was the gunman. According to Ms. Duell’s testimony, the defendant told her that he was an “assassin” and that he shot “that dude at the club” “because he disrespected me. I wanted him dead.” Ms. Duell also testified that she had seen the defendant with a black gun on the Friday before the shooting. Ms. Duell’s friend, Shawndreaka King, also testified. Ms. King indicated that, unknown to the defendant, she listened in on a three-way call with Ms. Duell and the defendant. Ms. King testified that, during that phone call, she heard the defendant confess to the shooting at the club. According to Ms. King, the defendant mentioned a young lady with whom he wanted to dance but who refused his attentions. Additionally, Ms. Duell knew that the defendant was leaving for New Orleans on the Monday after the shooting. There was testimony that the defendant quit his job, where he had been working for less than one month, on Monday, October 25, 2010, and did not pick up all of his wages.

Further, the State presented evidence concerning an incident which occurred in Jefferson Parish, Louisiana, on October 29, 2010. Trooper Brian St. Clair, with the Louisiana State Police, testified that in the early morning hours of that day, he was operating a checkpoint in Jefferson Parish. When a blue 1996 Chevrolet Lumina failed to stop at the checkpoint, Trooper St. Clair pursued the vehicle. Trooper St. Clair identified two streets where the pursuit occurred — Elizabeth Street and Sanford Drive. The driver of the Lumina eventually escaped on foot. However, Trooper St. Clair testified that he apprehended the passenger, Derrick Garner. .Mr. Garner also testified, stating that he was hitchhiking and did not know |sthe person who picked him up but denied that it was the defendant. Mr. Garner also testified that he did not have any guns in the car with him.

Bridget Payne testified that in October of 2010, she was dating the defendant’s brother, who was then incarcerated. Further, at that time, she lived in Kenner, Louisiana and owned a blue Chevrolet Lu-mina. According to Ms. Payne, the defendant asked to borrow her car and she let him do so. Several days later, she was contacted by a state trooper who asked if she had been driving the car the night before. Ms. Payne testified that she informed the trooper that the defendant had been in possession of the car the night before.

Deputies with the Jefferson Parish Sheriffs Office testified that, shortly after daybreak on October 29, 2010, they received two phone calls about found guns, one in the intersection of Elizabeth and Quincy and the other on Sanford. A deputy retrieved a .380 Bersa pistol and a 9mm Ruger pistol from those locations. According to Michael Stelly with the North Louisiana Criminalistics Laboratory, the .380 Bersa was loaded with Tul brand ammunition. Mr. Stelly noted that the fired cartridge casings recovered at the crime scene were .380 Tul brand ammunition and testified that, especially at that time, Tul brand ammunition was not common in the United States. Additionally, Mr. Stelly testified that the bullet recovered from Ms. Peterson had insufficient identifying characteristics to make a match with the .380 Bersa. However, according to Mr. Stelly, he was able to conclude that the .380 fired Tul brand cartridge casings recovered from the nightclub were fired from the .380 Bersa pistol recovered in Jefferson Parish.

The defendant contends that the evidence points to someone else as the shooter and that there is insufficient evidence that he was in possession of a firearm. The defendant points to Mr. Hall, the bouncer at Club Platinum, and the |ashorter, dark-skinned, angry-looking man identified by Ms. Peterson as alternative possibilities. He also points to the testimony of Rhoda Blake, the head bartender at Club Platinum, that Mr. Hall had a gun on the night of the shooting. According to Ms. Blake, she took a gun from Mr. Hall and put it in her purse. However, she stated that approximately fifteen to twenty minutes before the shooting, Mr. Hall took the gun out of her purse. The defendant also notes Mr. Hall’s lengthy criminal record, including several “serious” pending charges. He also points to Ms. Peterson’s testimony about the angry-looking man who attempted to stub out a cigarette on Ms. Peterson’s brother’s head. He also notes that several defense witnesses testified that the defendant was with them in the club at the time of the shooting, that they saw him run out of the club, and that they did not see him with a gun. Finally, he argues that Ms. Duell’s testimony is unreliable because their relationship was ending and she was upset with him.

The defendant also argues that the State was unable to definitively link the defendant to the guns located in Jefferson Parish, i.e., Mr. Garner denied that the defendant was the driver of the 1996 Chevy Lumina, that the DNA analyst was unable to find DNA or fingerprints which would link him to the guns found in Jefferson Parish, and that the firearms analyst was unable to link the bullet removed from Ms. Peterson to the .380 Bersa recovered in Jefferson Parish. The defendant also questions the reliability of the conclusion that the .380 cartridge casings found at the nightclub were fired from the recovered .380 Bersa.

However, having reviewed the evidence in the light most favorable to the prosecution, we find it is sufficient such that a reasonable finder of fact could conclude that that all of the elements of the crime had been proven beyond a reasonable doubt. With regard to the charges for attempted second degree murder, 110the State had to establish that the defendant had specific intent to kill a human being and committed an act in furtherance of that purpose. State in the Interest of L.H., 94-903 (La.App. 3 Cir. 2/15/95), 650 So.2d 433. Firing into a crowd is sufficient to establish specific intent to kill. Id. We find that the State presented evidence that, if credited by the jury, is sufficient to establish those elements.

The State presented evidence that, if accepted by the jury, the defendant was present in Club Platinum at the time of the shooting, that he had been seen with a gun less than forty-eight hours before the shooting, that there was an incident involving the defendant and the victims, and that the defendant was seen leaving the club “stuffing something in his pants.” The evidence was that the nightclub was crowded when shots were fired and that Ms. Peterson, Ernest Sherman, and Lovan Sherman were actually struck by the bullets. Further, Ms. Duell and Ms. King testified that the defendant confessed to the crime.

Finally, the State also presented sufficient evidence that, if credited by the jury, would lead to a conclusion that the defendant fled Alexandria after the shooting and went to New Orleans, where he borrowed Ms. Payne’s car. Further, reasonable inferences from the circumstantial evidence offered by the State are sufficient that a reasonable juror could conclude that, while still driving the borrowed car, the defendant failed to stop at a checkpoint in Jefferson Parish, lead the police on a chase and ultimately evaded capture by fleeing on foot. The location of the recovered guns along the chase route are sufficient to connect them to the defendant, and the testimony concerning the unusual ammunition and firing pin markings are sufficient to connect , the .380 Bersa to the shooting at Club InPlatinum. See Chism, 436 So.2d 464.

With regard to the charge of possession by a firearm by a convicted felon, the State had to prove that the defendant had been convicted-of a crime of violence as enumerated in La.R.S. 14:2(B) and that he possessed a firearm within ten years from the date of completion of sentence. The defendant stipulated to his 2007 conviction for second-degree battery, which is less than ten years from the commission of the crime. Second-degree battery is listed as a “crime of violence” in La.R.S. 14:2(B). As previously discussed, the evidence presented by the State is sufficient to support a conclusion that the defendant possessed a firearm while in Rapides Parish.'

Accordingly, we find that the State presented sufficient evidence to satisfy the Jackson v. Virginia standard with regard to the defendant’s conviction for three counts of attempted second-degree murder and with regard to his conviction for one count of possession of a firearm by a convicted felon.

Evidentiary Issues

The defendant also asserts that the trial court made several evidentiary errors. In his. counseled brief, the defendant argues that the trial court erred in permitting Mr. Stelly to testify as an expert with regard to firearms identification. The defendant’s pro se assignments of error concern the admission of evidence of the defendant’s prior conviction.

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La. Code Crim.P. art. 841(A). With regard to the defendant’s allegation that -the trial court erred in permitting Mr. Stelly to [ 12testify as an expert with regard to firearms identification, we find that the record indicates that the defendant failed to preserve this issue for appellate review, because he did not adequately bring this issue to the trial court’s attention. The record indicates that the defendant filed a motion in limine concerning whether firearms identification satisfies the Daubert standard. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The motion in limine addressed, in part, a 2010 report by the National Academy of Sciences that questioned the reliability of firearms identification. According to the record, the motion in limine was filed in open court on August 14, 2012, ie., the same day that Mr. Stelly testified. Our review of the transcript and the minutes does not reveal that there was any on-the-record discussion of that motion, nor is there any argument or any ruling on the motion contained within the record.

However, we observe defense counsel briefly questioned Mr. Stelly about the report during cross-examination about Mr. Stelly’s qualifications. The record reflects that defense counsel attempted to question Mr. Stelly about error rates and points of identification, but the trial court sustained the State’s objection on the basis that the defense’s questions were not germane to whether Mr. Stelly was qualified to testify as an expert. The trial court observed that the weight of Mr. Stelly’s opinion was left to the jury. Defense counsel stated that he “was just trying to gauge his expertise in this area so the [trial court] can make an informed decision on that.” Thus, the record indicates that the defendant objected on the basis of Mr. Stelly’s qualifications, not the substance of his testimony. However, even assuming that this was sufficient to preserve the issue for appellate review, we find no error in the trial court’s acceptance of Mr. Stelly as an expert witness.

|1SA witness qualified as an expert by knowledge, skill, experience, training, or education may offer an opinion as to scientific, technical, or other expert testimony if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” La.Code Evid. art. 702. In State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55, writ denied, 07-530 (La.12/7/07), 969 So.2d 619, the second circuit addressed the admissibility and review of expert testimony, stating:

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La. C.E. Art. 702, the scientific evidence must rise to a threshold level of reliability.... The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho [Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ].
A trial court has great discretion in determining the competence of an expert witness, and that determination will not be overturned absent an abuse of discretion. La. C.E. art. 702; State v. Gipson, 37,132 (La.App.2d Cir. 6/25/03), 850 So.2d 973, writ denied, 03-2238 (La.1/30/04), 865 So.2d 75. The test of competency of an expert is his knowledge of the subject about which he is called upon to express 114an opinion. A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert. State v. Gipson, supra.

Here, the record indicates that Mr. Stelly testified about his education and experience. Notably, at the time of trial, Mr. Stelly had been working for the North Louisiana Criminalistics Laboratory since 1993, and he had been qualified as an expert approximately 100 times in the field of firearms identification. He also testified that, in addition to a bachelor’s degree in toxicology, he did twenty months of training when he was hired by the crime lab. The defense attorney questioned Mr. Stelly about, the National Academy of Sciences report. Mr. Stelly testified that he has testified about a dozen times since the publication of the report and has been questioned about it on a majority of those occasions. Mr. Stelly also demonstrated that he was familiar with the published error rates for firearms and toolmark identification. We additionally note that, on direct and cross-examination, Mr. Stelly testified as to the science of firearms identification and its methodology, and how he applied it to the tested items in this case. Further, the defendant subjected Mr. Stelly to stringent cross-examination concerning the reliability of that testimony, including Mr. Stelly’s documentation protocol and whether he had accounted for weapons that may have similar manufacturing marks to the weapon tested herein.

Based on the record, we find that the trial court did not abuse its discretion in allowing Mr. Stelly to testify as an expert. See Jacobs, 67 So.3d 535; State v. Williams, 42,914 (La.App. 2 Cir. 1/9/08), 974 So.2d 157, writ denied, 08-465 (La.9/26/08), 992 So.2d 983. Accordingly, the defendant’s arguments in this regard are without merit.

i5With regard to the defendant’s pro se assignments of error, both of which concern the admission of the defendant’s prior conviction for second degree battery, we find that this issue is not sufficiently preserved for appellate review. See La. Code Crim.P. art. 841. A review of the record indicates that the defendant made no objections when the State introduced evidence during its case in chief concerning his prior conviction. Further, the defendant refers to several pages in the record. Those pages contain a portion of the State’s closing argument, and do not contain any references to the defendant’s pri- or conviction. We observe that the State referred to the defendant’s status as a convicted felon at the end of its closing argument, but the defendant made no objection to that reference.

Even assuming the issue was preserved for appellate review, the record indicates that the defendant was charged with possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The fact of his prior felony conviction was an essential element of that crime, and was admissible for that purpose. See State v. Ronquille, 09-231 (La.App. 5 Cir. 11/24/09), 26 So.3d 823, writ denied, 10-525 (La.2/25/11), 58 So.3d 455. The record indicates that the defendant stipulated to his conviction for second degree battery in 2007. Additionally, in charging the jury, the trial court emphasized that the fact of the defendant’s prior conviction was introduced as evidence for the charge of possession of a firearm by a convicted felon and that the jury “may not find [the defendant] guilty of these charges merely because he’s previously been convicted of a crime.”

. The defendant’s arguments in this regard are without merit.

|1fiState’s Reference to Responsive Verdicts

The defendant also contends that the State improperly instructed the jury not to consider responsive verdicts and that the trial court should have sustained the defendant’s objection to that reference. During closing arguments, the State addressed the responsive verdicts of attempted manslaughter, aggravated battery, and attempted possession of a firearm by a convicted felon. The State then stated that the defendant “doesn’t deserve consideration of these responsive verdicts; these lesser and included verdicts. He doesn’t deserve it. He would go into a bar because he’s upset at a young lady for not dancing with him, and fire off shots[.]” The defendant objected on the grounds that the jury is required to consider responsive verdicts but was overruled by the trial court.

The defendant argues that this statement was beyond the scope of closing argument and was inflammatory. The defendant believes that a mistrial was warranted, or, at minimum, an admonition from the trial court instructing the jury to ignore the State’s comment. The State contends that the comment was merely an attempt “to explain to the jury [that] the State had proven beyond a reasonable doubt each essential element of the erime[.]” The State also argues that any error was harmless.

Louisiana Code of Criminal Procedure Article 774 addresses the scope of argument and states that “argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice.” Prosecutors are granted wide latitude in their closing argument tactics, and the trial court has broad discretion in controlling the scope of that argument. State v. Frank, 99-553 (La.5/22/07), 957 So.2d 724. Further, an appellate court |17will not reverse a conviction where the prosecutor exceeds the bounds of closing argument unless convinced that the argument influenced the jury and contributed to the verdict. Id.

Here, even assuming that the State’s argument was improper, we find that the record does not support a conclusion that the argument influenced the jury and contributed to the verdict. As previously discussed, the evidence presented by the State was sufficient to support the defendant’s convictions. Further, the defendant’s argument to the jury was that he was not the shooter, not that he was guilty of a lesser included offense. Finally, we note that the jury submitted a question to the trial court concerning the lesser included offenses.

Accordingly, we find no merit to the defendant’s argument in this regard.

DECREE

The convictions of the defendant, War-dell Christopher Williams, for three counts of attempted second degree murder and one count of possession of a firearm by a convicted felon are affirmed.

AFFIRMED.

      . We note that several of the witnesses refer to the nightclub as the "Platinum Club.”

      . In her testimony, Ms. Daniels stated that her last name was "Daniel.” We use the spelling contained in the parties’ briefs.

      .Other witnesses, such as Courtney Carter, referred to the defendant as "Buddy” or "Ma-leke.”

      . We observe that, even if the jury found that the defendant was not driving the Lumina in the early morning hours of October 29, 2010, there is sufficient evidence to connect the defendant to the guns recovered from the chase route.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jarvis ANGELLE.
    No. 13-508.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Michael Harson, District Attorney, Cynthia K Simon, Assistant District Attorney, Lafayette, LA, for PlaintiffAppellee-State of Louisiana.
    Douglas Lee Harville, Louisiana Appellate Project, Shreveport, LA, for Defendant/Appellant-Jarvis Angelle.
    Jarvis Angelle, Homer, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

|, After Defendant, Jarvis Angelle, fatally shot Treva Williams, the State charged him with second degree murder under La. R.S. 14:30.1. Before trial, Defendant filed a motion to suppress all photographic lineup identification evidence. After a suppression hearing, the trial court denied the motion. Defendant subsequently pled guilty to the responsive charge of manslaughter under La.R.S. 14:31, but he reserved his right to appeal pretrial rulings on motions and his sentence. Defendant was sentenced to forty years at hard labor. On appeal, we affirm his conviction and sentence.

I.

ISSUES

We shall consider whether:

(1) the trial court violated Mr. Angelle’s constitutional right to effective counsel when counsel failed to provide Mr. Angelle with expert assistance in the suppression hearing regarding the photographic lineups;
(2) the trial court erred when it denied Mr. Angelle’s motion to suppress the photographic lineup identifications;
(3) the trial court erred by imposing an unconstitutionally harsh and excessive sentence;
(4) the trial court violated Mr. Angelle’s due process rights by limiting Mr. Angelle’s mitigation testimony prior to sentencing; and
(5) the trial court violated Mr. Angelle’s due process rights by accepting a manslaughter guilty plea even though the bill of indictment was never amended.

_kIL

FACTS AND PROCEDURAL HISTORY

On November 10, 2007, the victim, Treva Williams, attended a motorcycle club meeting at the Quality Lounge in Carenero, Louisiana. As the party was concluding, a fight broke out. Soon after the fight ended, Defendant entered the club with a gun, shot the victim, and fled. The victim died as a result of the gunshot wound.

During the investigation, seven witnesses to the shooting independently identified Defendant as the shooter via photographic identification lineups of six photos featuring African-American men of similar age and build. Two of these witnesses were 60-70% certain of the identification while the remaining five were absolutely certain. One witness did admit to seeing the news report on the shooting prior to his identification. In addition, three witnesses made their identifications nearly a year after the shooting, but their testimony and identifications were consistent with the other witnesses. All the witnesses testified that they were not coerced by the investigating officers during the lineups, and that the officers never suggested to them who to choose. Defendant subsequently filed a motion to suppress the photographic identification evidence, but after a hearing, the trial court denied the motion.

On April 16, 2012, Defendant pled guilty to the responsive charge of manslaughter under La.R.S. 14:31, and on October 31, 2012, Defendant was sentenced to forty years at hard labor.

J¿II.

LAW AND DISCUSSION

Right to Effective Counsel

Defendant argues the trial court violated his right to effective assistance of counsel when counsel failed to provide him with an expert to aid in the suppression hearing on the photographic lineups. We disagree.

In order to prove ineffective assistance of counsel, a defendant must show his attorney was deficient and he suffered prejudice as a result of this deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Defendant does not allege his attorney was deficient. The record indicates Defendant’s attorney hired an expert to provide testimony. The trial court, however, concluded the expert testimony was inadmissible in denying the motion to suppress.

Defendant does not directly challenge the trial court’s denial of the motion; he only challenges it in the contéxt of ineffective assistance of counsel, but he fails to demonstrate any prejudice. Moreover, Defendant does not allege as error the trial court’s ruling on the inadmissibility of the expert testimony. Consequently, we find no merit in this claim.

Denial of the Motion to Suppress the Photographic Lineup Identifications

Defendant argues the trial court erred in denying the motion to suppress the identifications from the photographic lineups. We disagree.

In State v. Broadway, 96-2659, p. 14 (La.10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000), the Louisiana Supreme Court explained in pertinent part:

|4The defendant has the burden of proof on a motion to suppress an out-of-court identification. La.Code Crim.P. art. 703(D). To suppress an identification, the defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). However, even when suggestiveness of the identification process is proved by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, supra.
In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court held that an identification may be permissible, despite the existence of a suggestive pretrial identification, if there does not exist a “very substantial likelihood of irreparable misidentification.” The factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 114, 97 S.Ct. 2243.

In this case, Defendant fails to prove that the photographic lineups were unduly suggestive. While he argues that the police used too few photographs which unduly focused attention on Defendant, he fails to set forth any case law stating six photographs ' were insufficient. Furthermore, there is no merit to Defendant’s argument that the photographic lineups lacked adequate procedural safeguards. A copy of the photographic lineup was introduced into évidence by the State without objection. A review of the exhibit reflects six pictures of African-American males similar in age, build, skin color, facial hair, and hair. Moreover, all the witnesses, with the exception of one, testified they did not see the |snews report of the shooting, and they testified that they were not coerced or threatened by an officer during the lineup. Additionally, all the witnesses affirmed that the officers conducting the lineup did not suggest who to choose.

Even if we were to find that the lineups were unduly suggestive, Defendant fails to prove that there was a substantial likelihood of misidentifieation. Applying the Manson factors, witnesses had a clear opportunity to view the crime as the bar was well-lit at the time of the crime and the witnesses were in close proximity to the shooter. Although some of the witness descriptions of the shooter varied slightly, the general descriptions remained consistent. Further, most of the witnesses made the identification from the photographic lineup shortly after the shooting occurred, and the three witnesses who made the identifications almost one year later still provided consistent and -accurate testimony.

Considering the totality of these circumstances, we find that Defendant did not meet his burden of proving the photographic lineups were unduly suggestive and presented a substantial likelihood of misidentifieation.

Excessive Sentence

Though Defendant did not file a motion to reconsider, this court has reviewed claims of excessive sentences on constitutional grounds despite a lack of an objection or motion to reconsider sentence. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011). Accordingly, we will review the |f,Defendant’s claim as a bare claim of excessiveness. Defendant complains his maximum sentence of forty years at hard labor is unconstitutionally excessive. We disagree.

-The trial court has wide discretion in imposing a sentence. Absent a manifest abuse of that discretion, we will not deem a sentence excessive. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. The appellate court should consider the nature of the crime, the background of the offender, and the sentences imposed for similar crimes in making its determination. State v. Telsee, 425 So.2d 1251 (La.1983). A sentence will only be deemed constitutionally excessive if it is grossly out of proportion to the seriousness of the offense. State v. Dorthey, 623 So.2d 1276 (La.1993). In addition, “[m]axi-mum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225.

Louisiana has long held that maximum sentences for manslaughter are not excessive when there is sufficient evidence to convict the defendant of second degree murder. State v. Carrier, 95-1003 (La.App. 3 Cir. 3/6/96), 670 So.2d 794, writ denied, 96-881 (La.9/20/96), 679 So.2d 431; State v. Darby, 502 So.2d 274 (La.App. 3 Cir.1987). While Defendant is a first time offender and expressed some remorse, the evidence indicates that he walked into a bar and killed the victim in cold blood. These facts are sufficient to support a conviction of second degree murder. See La.R.S. 30.1. Additionally, Defendant received the benefit of pleading to the re--duced crime of manslaughter, thereby avoiding the more severe penalty of life imprisonment without the benefit of probation, parole, or suspension of sentence that comes with a second degree murder conviction. In light of our past jurisprudence, we conclude that the trial court did not abuse its discretion in |7sentencing Defendant to forty years at hard labor as such a sentence, under the circumstances of this case, is not disproportionate to the seriousness of the crime.

Due Process Violation for Limiting Mitigation Testimong at Sentencing

Defendant argues that the trial court violated his due process rights by limiting mitigation testimony of witnesses to twenty minutes and limiting Defendant’s own testimony prior to sentencing. In support of his argument, the Defendant cites State v. Richardson, 377 So.2d 1029 (La.1979), State v. Bosworth, 360 So.2d 173 (La.1978), and State v. Underwood, 353 So.2d 1013 (La.1977).

In Richardson, Bosworth, and Underwood, the courts explained that due process requires a defendant be given an opportunity to rebut false or invalid information exposed to the sentencing judge that may contribute to the harshness of the sentence. These cases are inapplicable to the present case. Defendant did not rebut false information relied upon by the trial court to impose his sentence. Thus, this court finds no merit in this claim.

Trial Court’s Acceptance of Manslaughter Plea

Defendant argues the trial court erred when it accepted a plea to manslaughter even though the bill of indictment was never amended. We disagree.

In State v. Price, 461 So.2d 503, 505 (La.App. 3 Cir.1984), abrogated on other grounds by State v. Jackson, 04-2863 (La.11/29/05), 916 So.2d 1015, this court explained in pertinent part:

A defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment. La. Code Crim.P. art. 558. The lesser included offense must be of the same generic class and must not require proof of an element which is not found in the major crime charged. Official Revision Comment to La.Code Crim.P.s art. 558; State v. Green, 263 La. 837, 269 So.2d 460 (La.1972). In such instances amendment of the indictment or the filing of a new information charging the lesser included offense is not required.

Here, the State noted at the guilty plea proceeding that the charge of second degree murder had been amended down to manslaughter, which is a lesser included offense. See La.Code Crim.P. art. 814. Consistent with this court’s reasoning in Price, an amendment of the bill charging Defendant with the lesser included offense of manslaughter was not required. Accordingly, this court finds no merit in this claim.

IV.

DISPOSITION

For the foregoing reasons, we affirm Defendant’s conviction and sentence for manslaughter.

AFFIRMED.


text:
    Julie GASPARD v. CITY OF ABBEVILLE.
    No. 13-519.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      C. Theodore Alpaugh, III, Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant Julie Gaspard.
    J. Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Defendant/Ap-pellee City of Abbeville.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|,The appellant was discharged from her position as a police officer after an incident in which a student was struck by a Taser flechette during a classroom demonstration. The officer appeals that termination. For the following reasons, we reverse.

Factual and Procedural Background

In September 2010, Officer Julie Gas-pard of the City of Abbeville Police Department was assigned to serve as a school resource officer at a middle school. While serving in that capacity, the plaintiff visited a sixth grade classroom and attempted to demonstrate the operation of her Taser to the students. The circumstances surrounding Officer Gaspard’s visit to the classroom are disputed in the record.

Regardless of the motivation surrounding her visit, however, it is clear that upon Officer Gaspard’s removal of the Taser from its holster, the weapon discharged. One of the Taser’s flechettes struck a student in the chest. As the second flechette fell to the floor, the student did not receive a shock from the weapon. The record indicates that the students’ and the teacher’s accounts of the incident, as memorialized in their written statements, differed in certain respects from Officer Gaspard’s version of events.

Thereafter, the Abbeville Police Department assigned Sergeant Jason Hebert, the Department’s Taser trainer, to conduct an initial investigation into the matter. After-wards, the Department commenced a formal Internal Affairs investigation and provided notice to Officer Gaspard of that investigation. A form 12entitled “Advice of Rights for Officers Under Investigation” is contained within the record and describes the complaint under investigation as: “Improper use and deployment of a Taser X26 which resulted in a child being Tased[.]” Both Officer Gaspard and Sergeant Jason Hebert were interviewed as part of the Internal Affairs Board’s investigation. Central to this pending matter is Officer Gaspard’s contention that Sergeant Hebert’s interview was not recorded, as will be discussed below.

Ultimately, the Internal Affairs Board determined that Officer Gaspard “did not follow departmental policies when she improperly used and deployed a Taser X26, which resulted in the injury of a child” and that she “did not fully disclose the truth, of how the incident occurred, nor of her actions related to the injury of the student.” The Internal Affairs Board recommended that Officer Gaspard be suspended, without pay, for seven days. In a subsequent letter to the City’s Mayor, the Police Chief recommended a ten-day suspension.

The matter proceeded to a .Pre-Disci-plinary Hearing before the Abbeville City Council. The City Council’s minutes from the evening of the hearing indicate that a Pre-Disciplinary Hearing was conducted in Executive Session. However, testimony revealed that the session included appearances by both Officer Gaspard and Sergeant Hebert. When the regular session of the City Council was ^reconvened, the City Council voted unanimously to terminate Officer Gaspard’s employment.

In the letter officially informing Officer Gaspard of the termination, she was apprised of her right to appeal the decision to the Abbeville Fire and Police Civil Service Board. See La.R.S. 33:2561. Officer Gaspard did so and at the resulting |4Civil Service Board hearing, she moved to overturn the discipline imposed due to alleged violations of La.R.S. 40:25S1(B), a statute setting forth minimum standards applicable to investigations of police employees and police officers. In part, and now central to the instant appeal, Officer Gaspard asserted that Sergeant Hebert’s statement to the Internal Affairs Board was not recorded. However, the Civil Service Board found no merit in Officer Gaspard’s argument. After hearing from witnesses who testified to the course of events up through the City Council’s termination of employment, the Civil Service Board upheld the City Council’s action.

Pursuant to La.R.S. 33:2561(E), Officer Gaspard appealed the Civil Service Board’s ruling to the Fifteenth Judicial District Court. Officer Gaspard raised a | snumber of complaints in the Civil Service Board’s ruling and re-urged her complaint that the interview of Sergeant Hebert was not recorded. However, at the close of the parties’ arguments, the trial court concluded that, based on the evidence submitted, Sergeant Hebert’s interview was, in fact, recorded. The trial court dismissed the appeal.

Officer Gaspard now seeks review in this court and assigns the following as error:

1.The ruling of the District Court in upholding the decision of the Board was not made in good faith and for just cause as the City of Abbeville and the Abbeville Police Department failed to comply with the provisions of La.R.S. 40:2531(B)(3) and, accordingly, pursuant to La.R.S. 40:2531(C), any discipline resulting from the alleged violations at issue in this appeal is an absolute nullity and this Court is mandated by law to overturn the discipline herein.
2. The Board erroneously found that Julie Gaspard did not follow departmental procedures in connection with TASER usage;
3. The Board erroneously found that Julie Gaspard did not disclose the truth of how the incident in question occurred nor of her actions related to the alleged injury of the student;
4. The Board erroneously upheld the Council’s determination that Julie Gaspard’s conduct constituted “criminal, dishonest, infamous or notoriously disgraceful conduct having an adverse effect on the efficiency of City serviced’];
5. The Board erroneously upheld the Council’s determination that Julie Gaspard’s conduct constituted “false testimony or refusal | nto testify in an inquiry, investigation or other official proceeding of or with reference to the City[”]; and
6. The penalty imposed upon Julie Gaspard, namely, termination was not commensurate with the infraction, if any.

Discussion

Standards of Investigation

As discussed above, the plaintiff first raises the threshold issue of whether these proceedings reflect that she was afforded the due process set forth in La.R.S. 40:2531, which provides:

A. The provisions of this Chapter shall apply only to police employees as defined by R.S. 40:1372(5), Louisiana P.O.S.T. certified probation and parole officers employed by the Louisiana Department of Public Safety and Corrections, division of probation and parole, and to those law enforcement officers employed by any municipality and campus police employed at any state-supported college or university who are under investigation with a view to possible disciplinary action, demotion, or dismissal.
B. Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:
(1) The police employee or law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The police employee or law enforcement officer shall be allowed to make notes.
(2) Any interrogation of a police employee or law enforcement officer in connection with an investigation shall be for a reasonable period of time and shall allow for reasonable periods for the rest and personal necessities of such police employee or law enforcement officer.
(3) All interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full. The police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his mitten request.
(4)(a) The police employee or law enforcement officer being questioned, whether as a target or as a witness in an administrative 17investigation, shall have the right to be represented by counsel, other representative, or both, of the police employee or law enforcement officer’s choice.
(b) The police employee or law enforcement officer shall be granted up to thirty days to secure such representation, during which time all questioning shall be suspended.
(c) The police employee or law enforcement officer’s representative or counsel shall be allowed to offer advice to the employee or officer and make statements on the record regarding any question asked of the employee or officer at any interrogation, interview, or hearing in the course of the investigation.
(5) No statement made by the police employee or law enforcement officer during the course of an administrative investigation shall be admissible in a criminal proceeding.
(7) When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the police employee or law enforcement officer who is under investigation. The police employee or law enforcement officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the police employee or law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an ádditional sixty days. The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.
_k- • • •
C. There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.

(Emphasis added.)

We first address Officer Gaspard’s contention that La.R.S. 40:25S1(B)(3) was violated because Sergeant Hebert’s interview with the Internal Affairs Board was not recorded. In considering this matter, the Civil Service Board rejected the plaintiffs claim, suggesting that the construction of La.R.S. 40:2531 indicated that it was only the police officer/employee under investigation whose statement was to be recorded. On this point, arid in reasons for ruling, the Civil Service Board determined that:

In the present case, testimony and exhibits revealed that Julie Gaspard’s interrogation was recorded; that she requested and received a copy of her recorded statement. The provisions of LSA-R.S. 40:2531 were fully complied with and Julie Gaspard received the full protection of its provisions as a police employee or Law enforcement officer.

The Civil Service Board further noted that Sergeant Hebert testified in person at the Civil Service Board hearing. Over the objection of Officer Gaspard’s counsel on this preliminary issue, and after assessment of the presentation of evidence on the merits, the Civil Service Board left the City’s termination of Officer Gaspard’s employment undisturbed.

Similarly, the trial court rejected Officer Gaspard’s argument and stated that:

The Court finds that the evidence shows that the recording was done because the chief and the other officer stated that that was their practice to always do it. It was in the interview room where | ;)recordings are always done and they believe that it was done. The Court thinks that burden has been met that the recording was done, but I think the evidence is clear that the plaintiff got the recording in the interview room but the other recording was not produced of Officer Hebert.

In this review, we are mindful that both a district court and, in turn, an appellate court must accord deference to a civil service board’s factual conclusions. In re Hickman, 12-1360 (La.App. 3 Cir. 4/3/13), 113 So.3d 1163 (quoting Landry v. Baton Rouge Police Dep’t, 08-2289 (La.App. 1 Cir. 5/8/09), 17 So.3d 991), writ granted, 13-1381 (La.10/4/13), 124 So.3d 460, 2013 WL 5506880 (trial court judgment reinstated on other grounds). Those conclusions must not be overturned unless they are manifestly erroneous. Id. Outside of factual findings, the appellate court reviews the matter to determine if the standards required under the law were properly adhered to, affording the officer a fair proceeding. See Hickman, 113 So.3d 1163.

First, we point out that the Civil Service Board correctly observed that Officer Gaspard’s Internal Affairs interview was recorded. However, La.R.S. 40:2531(B)(3) does not limit the necessity of recording to the police employee or law enforcement officer under investigation. Rather, it broadly provides that in the event a police employee or law enforcement officer is under investigation, “[a]ll interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full.” La.R.S. 40:2531(B)(3)(emphasis added). This expansive use of “any police employee or law enforcement officer” in Subpara-graph (3) differs from Subparagraph (1), which designates applicability to “[t]he police employee or law enforcement officer being investigated!.]”

In light of this construction, we find error in the Civil Service Board’s determination that La.R.S. 40:2531(B)(3) required that only the statement of 110Officer Gas-pard, as the officer under investigation, must have been recorded. Rather, the provision broadly requires the recording, in full, of any interrogation' of a police employee or law enforcement officer in connection with the subject investigation. Id. In short, the statute contains no exception applicable to the Internal Affairs Board’s interrogation of Sergeant Hebert.

Neither do we find merit in the assertion that La.R.S. 40:2531(B)(3) was not violated because Officer Gaspard did not have a right to obtain Sergeant Hebert’s statement. On this point, and following the requirement that any police officer’s statement be recorded, La.R.S. 40:2531(B)(3) provides that: “The police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his written request.” (Emphasis added.) Despite the issue of who has the right to obtain the copy of the recording, it is the first sentence of the paragraph that sets forth the minimum standard of investigation owed to the “police employee or law enforcement officer [] under investigation!.]” In this case, Officer Gaspard was the officer under investigation and, thus, recording, in full, of the interrogations of any police employee or law enforcement officer taken in connection with that investigation was required.

Additionally, and although it is the Civil Service Board’s factual determinations ruling that we review for manifest error, we address the trial court’s finding that Sergeant Hebert’s interview was, in fact, recorded. We do so for sake of completeness and upon observation that there is no factual support for such a finding in the record. Notably, testimony only reflected that it was the ^Internal Affairs Board’s practice to record such interviews and, therefore, it should have been recorded. However, no recording was produced. This lack of evidence stands in contrast to La.R.S. 40:2531(B)(3)’s directive that “[a]ll interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full.” (Emphasis added.) Without positive evidence of a recording, it is impossible to further test whether that recording was made “in full.” Simply, the evidence points to a lack of compliance with the minimum standard of La.R.S. 40:2531(B)(3).

Certainly, the failure to record this single witness’s testimony may be arguably minor in the context of other investigative safeguards afforded Officer Gaspard and Sergeant Hebert’s testimony at both the Pre-Discipline Hearing and the Civil Service Board hearing. However, the legislature has spoken clearly on the consequence of any breach. As set forth above, La.R.S. 40:2531(0 provides, in part, that “[a]ny discipline, demotion, dismissal, or adverse action of any sort whatsoever against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.” (Emphasis added.).

“When the wording of a statute is clear and free of ambiguity,” La.R.S. 1:4 directs that “the letter of [the statute] shall not be disregarded under the pretext of pursuing its spirit.” By enacting La.R.S. 40:2531(C), and by use of exacting language, the legislature has clearly set forth a definitive penalty for failure to | ^provide the minimum standards otherwise provided by the statute. Jurisprudence of this circuit and others has recognized that clarity. See Hickman, 113 So.3d 1163 (wherein a panel of this court reversed the termination of a police officer’s employment due to a failure to satisfy La.R.S. 40:2531(B)(7)). See also Robinson v. Dep’t of Police, 12-1039 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272, writ denied, 13-0528 (La.4/12/13), 110 So.3d 1081; O’Hern v. Dep’t of Police, 12-0600 (La.App. 4 Cir. 12/19/12), 111 So.3d 1037 (on rehearing). In light of this authority, we conclude that the decision of trial court must be reversed and the underlying discipline recognized as an absolute nullity.

Although the above result is required by the pertinent legislation, the serious nature of the incident involved in this matter is worth recognizing.- Moreover, each of the investigative and/or reviewing entities involved in this proceeding attempted to address that serious incident. It is unquestioned that, for whatever reason, a law enforcement officer removed a weapon from her holster in a school classroom. It is further unquestioned that a resulting discharge struck a student simply sitting at her desk. The discipline subsequently imposed reflected understandable concern regarding the gravity of such an occurrence. However, La.R.S. 40:2531(C) allows no discretion in this instance, but, rather, dictates that the disciplinary action is an absolute nullity.

Request for Attorney Fees

The resolution of the above foundational concern renders the remainder of Officer Gaspard’s assignments of error moot. We note, however, that the plaintiff also seeks an award of attorney fees. Yet, no statute or contract authorizes the award of an attorney fee. In such an instance, an award of attorney fees is | ^inappropriate. See Hickman, 113 So.3d 1163 (quoting Sher v. Lafayette Ins. Co., 07-2441, 07-2443 (La.4/8/08), 988 So.2d 186).

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs of this proceeding are assigned to the appel-lee, the City of Abbeville, in the amount of $3763.00.

REVERSED.

      . Some of this dispute involved whether Officer Gaspard placed the Taser's laser on one or more of the children. She denied that she would have done so intentionally.

      . The notice of Pre-Disciplinary Hearing reflected the following offenses:
      First Offense — Criminal, dishonest, infamous or notoriously disgraceful conduct having an adverse effect on the efficiency of City service.
      Second Offense — False testimony or refusal to testify in an inquiry, investigation or other official proceeding of or with reference to the City.
      Both offenses are in reference to the incident occurring on 9-22-10 at J.H. Williams Middle School.

      .Louisiana Revised Statutes 33:2561 directs, in part, that:
      A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may, within fifteen days after the action, demand in writing a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.
      B. (1) All such hearings and investigations conducted by the board pursuant to the provisions of this Part shall be open to the public. No hearing and investigation shall be held unless both the employee and the appointing authority have been advised at least ten days in advance thereof of the date, time, and place therefor. If either the appointing authority or the employee fails to appear at the place and on the day and at the hour fixed for the hearing, the board may decide the issue involved on the basis of the evidence adduced and confined to the question of whether the action taken against the employee was made in good faith for cause set forth in the provisions of this Part.
      (2) Both the employee and the appointing authority shall be afforded an opportunity to appear before the board, either in person or with counsel, and present evidence to show that the action was or was not taken in good faith for cause as set forth in the provisions of this Part.
      (3) The board shall have complete charge of any such hearing and investigation and may conduct it in any manner it deems advisable, without prejudice to any person or party thereto. The procedure followed shall be informal and not necessarily bound by the legalistic rules of evidence. The board shall not be required to have the testimony taken and transcribed, but either the employee or the appointing authority may, at their own expense, make the necessary arrangements therefor. In such cases, the board may name any competent shorthand reporter as the official reporter. If the testimony is not taken or transcribed, then the board shall make a written finding of fact.
      C. (1) After such investigation, if the evidence is conclusive, the board may affirm the action of the appointing authority. If it finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and enti-tie him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay for a given period, a reduction in pay to the rate prevailing for the next lower class, a reduction or demotion to a position of any lower class and to the rate of pay prevailing thereof, or such other lesser punitive action that may be appropriate under the circumstances.
      (2) The decision of the board, together with its written findings of fact, if required, shall be certified in writing to the appointing authority and shall be enforced forthwith by the appointing authority.
      (3) Any employee of the classified service and any appointing authority affected by the finding of the board as provided in Paragraph (1) of this Subsection who is able to produce evidence of a violation of the provisions of R.S. 33:2565 such that the violation was material to the finding of the board may, within six months after the date of the board's finding, request in writing a reconsideration by the board on the matter. Such written request shall provide the name of any person in violation of R.S. 33:2565 and the details of the evidence. The board shall set the matter for reconsideration within thirty days after receipt of the written request and, based upon the merits of the evidence presented, may hold and conduct an investigation and hearing pursuant to this Part. Such hearing and investigation, if conducted, shall be held within thirty days of the board’s decision. If the board determines that such violation occurred and was material to its original decision, the board may modify or reverse its decision and shall take any corrective action as authorized under the provisions of this Part. An appeal of the finding of the board under the provisions of this Paragraph may be taken by the employee or the appointing authority in accordance with the provisions of Subsection B of this Section; however, the exercise of the appeal for reconsideration under the provisions of this Paragraph shall not be used for the purpose of extending the prescriptive period for appeal to district court following the board's original finding.

      . Louisiana Revised Statutes 33:2561(E) provides that:
      E. Any employee under classified service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of this Part which is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. This appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of appeal stating the grounds thereof and demanding that a certified transcript of the record or written findings of fact and all papers on file in the office of the board affecting or relating to such decisions be filed with the designated court. The board shall, within ten days after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court thereupon shall proceed to hear and determine the appeal in a summary manner. This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part or to whether a board member should have or failed to recuse himself in accordance with Subsection D of this Section. No appeal to the court shall be taken except upon these grounds.

      . See Hickman, 113 So.3d 1163.

      . Louisiana Revised Statutes 40:2531 contained no penalty for failure to comply with its minimum standards prior to 2007. Observing that silence in Marks v. New Orleans Police Department, 06-0575 (La. 11/29/06), 943 So.2d 1028, the Louisiana Supreme Court concluded that a failure to abide by a time limitation contained in Paragraph B(7) did not require the dismissal of charges against an officer. It found that such a failure could influence the type of discipline imposed if prejudice was demonstrated in light of the breach. However, the legislature subsequently amended the provision, adding Paragraph C. See 2007 La.Acts No. 258, § 1.