author: PETERS, J.

text:
    STATE of Louisiana v. Daniel Joseph HARMON.
    No. 13-1211.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Michael Harson, District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Lake Charles, LA, for Defendant/Appellant, Daniel Joseph Harmon.
    Daniel Joseph Harmon, Angola, LA, pro se.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   PETERS, J.

hThe defendant, Daniel Joseph Harmon, appeals his conviction of second degree murder, a violation of La.R.S. 14:30.1. For the following reasons, we affirm the defendant’s conviction in all respects.

DISCUSSION OF THE RECORD

This criminal appeal has as its origins the July 25, 1989 tragic murder of Christina Marie Wood. At the time of her death, Ms. Wood was living in an upstairs apartment, Apartment D of the Marigny Circle apartment complex in Duson, Louisiana. She shared the apartment with her boyfriend, Gary Cheramie, an offshore worker in the oil and gas industry. Her charred body was found in their apartment at approximately 9:00 a.m. on the morning of July 25, 1989, by a maintenance man sent to investigate a report of a fire. Her throat had been slit, she had been shot in the head three times, and her body set ablaze. Additionally, a double-stranded ligature with an adjustable loop made from a shoelace hung loosely around her neck. Ms. Wood had recently been involved in sexual activity, although one of the disputes at trial revolved around whether or not the activity had been consensual.

The initial investigation by the Lafayette Parish Sheriffs Department (LPSD) produced no suspects, and the case remained cold until 2003. In that year, the activities of a serial killer in southwest Louisiana prompted the Louisiana Legislature to fund the review of unsolved sex offenses, and these funds allowed the Acadiana Crime Lab (Crime Lab) to reopen this case. The subsequent investigation resulted in a Lafayette Parish Grand Jury returning an indictment on May 16, 2006, charging the defendant with the first degree murder of Ms. Wood, a violation of La.R.S. 14:30. The State of Louisiana (state) later amended the bill of 12indictment to reduce the charge to second degree murder, a violation of La.R.S. 14:30.1. Trial began on April 23, 2013, and on April 30, 2013, the jury returned its verdict convicting the defendant of the amended charge. On May 30, 2013, the trial court sentenced the defendant to serve life imprisonment at hard labor with the sentence to be served without the benefit of probation, parole, or suspension of sentence. After the trial court denied the defendant’s motion for a new trial, he perfected this appeal, asserting seven assignments of error:

1. The evidence adduced at trial was insufficient to support a conviction for second-degree murder.
2. The trial court erred in replacing Juror Spears with an alternate juror.
3. The trial court erred in allowing the State to refer to other crimes evidence by continually mentioning that [the defendant’s] name was in the CODIS system.
4. The trial court erred in failing to grant [the defendant’s] Motion for New Trial.
5. The trial court erred in allowing the coroner’s report to be introduced at trial when the coroner was unavailable.
6. The trial court erred in not allowing [the defendant] the opportunity to present an alternate theory of defense.
7. The trial court erred in allowing [the defendant] to be convicted by less than [a] unanimous verdict.

Summary of the Evidence Presented by the State of Louisiana

At approximately 4:30 a.m. on July 25, 1989, Ms. Wood telephoned Barry Paul Roger and told him that when she returned home she found that the door knob on her apartment “had been messed with” and that things in the apartment were out of place, having been “moved around.” She also told Mr. Roger that she had been Iswith friends at a place on Verot School Road and had come home to the abnormal findings. That same morning Ms. Wood telephoned Gary Cheramie’s father Tillman Cheramie, III and told him the same thing she had told Mr. Roger and asked him if perhaps his son had come in from offshore.

Joseph Brown, the maintenance man at the apartment complex, responded to a call he received that morning telling him that smoke was coming from one of the apartments and was the first to arrive at the apartment. Initially, he could not enter the apartment because of the thick smoke, but when he broke a bedroom window from the outside, much of the smoke vented to the outside and, using his master key, he entered and found Ms. Wood lying on the bedroom floor. He immediately left the apartment, but in doing so,'noted no damage to the door or broken windows other than the window he broke.

The call to the Lafayette Fire Department came in at 8:35 a.m., and the first firemen arrived on the scene at 8:47 a.m. Approximately one hour later, Fire Investigator Robert Benoit arrived at the scene. Ms. Wood’s body had yet to be moved from the bedroom, and he observed that the upper portion of her face-down nude body had been covered by loose clothing and the clothing set on fire. Other clothing was scattered around the room, and the smoke alarm had been pulled off the wall. Mr. Benoit noted that bath towels were wrapped around Ms. Wood and stacked under her head; and one hand clenched the towels under her body. He also observed the double-stranded ligature tied loosely around Ms. Wood’s neck, a “large slash wound” to her throat, and three gunshot wounds to her head. According to Mr. Benoit, the fire was at its infant stage when Mr. Brown broke the | .(Window from the outside, and the fresh air accelerated the flames throughout the apartment. Given his observations and findings, Mr. Benoit concluded that the fire had been intentionally set using an accelerant spread around the room and on Ms. Wood’s body. However, he found no evidence of forced entry into the apartment.

LPSD Detective Sherry Feister participated in the initial investigation on the morning of July 25, 1989, and also found no evidence of forced entry. She recovered and/or supervised the recovery of nine latent fingerprints taken from Mr. Cheramie’s vehicle, nine from an empty vegetable oil bottle, two from the broken window, and one from the deadbolt lock. A 1989 analysis of this evidence by the Automated Fingerprint Identification System (AFIS) resulted in no matches to any fingerprints on file in that system.

On July 27, 1989, the Crime Lab received a sexual assault kit containing physical evidence taken from Ms. Wood’s body. Howard Joseph Verret, Jr., a forensic chemist with the Crime Lab, examined both a vaginal smear slide and a rectal smear slide he obtained from the kit. With regard to the vaginal smear slide, he “found a couple of spermatozoa,” and, with regard to the rectal smear slide, he found “three spermatozoa heads.” He also examined a number of clothing items recovered at the crime scene and found that the stains on those items were attributable to Ms. Wood as donor.

Further evaluation of the evidence failed to materialize until August 25, 2003, when another forensic chemist with the Crime Lab forwarded the sexual assault kit for DNA testing to Orchid Cellmark Lab (Orchid Lab) in Nashville, [ .^Tennessee. Dr. Debra Cutter, a forensic testing expert at Orchid Lab, performed the laboratory-analysis requested and concluded that the two rectal swabs contained both male and female DNA; and that the female sample matched Ms. Wood’s DNA as would have been expected. However, because Dr. Cutter had no reference DNA sample to compare to the male DNA on the rectal swab, she could not match that sample to anyone. Orchid Lab forwarded a report of its findings to the Crime Lab on September 30, 2003.

On January 4, 2006, Carolyn Booker, a Crime Lab forensic DNA analyst, caused the Orchid Lab male DNA test results to be entered into the Combined DNA Index System (CODIS), a national DNA database, for comparison with samples on file. The CODIS search matched the male contributor of the DNA found on the rectal swab to the defendant’s DNA sample in its data base. As a follow-up to this identification, Ms. Booker sought and obtained blood samples from the defendant and four other individuals for testing. After completing her additional testing, Ms. Booker excluded the other four individuals and concluded that “within scientific certainty, the [defendant] is the source of the male profile on the semen on the vaginal and rectal swabs from the victim.”

In early 2006, and with the DNA connection in hand, LPSD Detective Jean St. Pierre took over the investigation. Upon reviewing the investigative record available to him, he discovered that the defendant had been living in the apartment building next to Ms. Wood on July 25, 1989. When he ran the license plates of | (¡vehicles observed at the scene that morning, he discovered that one of the vehicles was registered to the defendant’s grandfather. Further investigation revealed that in 1994, the defendant had been convicted in Tennessee of a sex offense and that this conviction required that he register in Louisiana as a sex offender.

On March 16, 2006, officers of the LPSD arrested the defendant for his failure to register as a sex offender. After being taken into custody, Detective St. Pierre and other officers questioned the defendant, and the video of that interrogation was played to the jury. Initially, two officers, not including Detective St. Pierre, questioned the defendant concerning his failure to register as a sex offender, and in response to this line of questioning, the defendant stated that he had been convicted of simple rape of Paulette Mire in 1994, while the couple was living in Nashville, Tennessee; and that he had been incarcerated for that offense until 2000. Although his incarceration was for the rape of Ms. Mire, the defendant told the investigating officers that when he was released from prison, Ms. Mire picked him up and they returned to Louisiana together. In fact, at the time of his arrest, the defendant was still living with Ms. Mire. The Tennessee conviction gave rise to the defendant’s DNA being entered into CODIS.

At this time, the two deputies left the interrogation room, and Detective St. Pierre and another officer came in to turn the questioning to the events of July 25, 1989. The defendant acknowledged that at that time he had been residing with Ms. Mire in a ground floor apartment in the Marigny Circle apartment complex, and he recalled a fire in the building next door. However, he denied any knowledge of a homicide being connected to the fire, and he stated that Ms. Mire never discussed the event with him. When shown a picture of Ms. Wood, he stated that he did not |7recall seeing her around the apartment complex. However, when confronted with the DNA evidence matching his DNA to that found in the vaginal and rectal swabs, he stated, “If my DNA matches it would have to be me.”

At the end of the March 30, 2006 interrogation, Detective St. Pierre placed the defendant under arrest for first degree murder. During the booking process, the defendant’s fingerprints were taken, but these prints were never compared with those recovered from Ms. Wood’s apartment. Detective St. Pierre stated that the comparison was not made because when he requested access to the prints recovered on July 25, 1989, he was informed by the custodian of those prints that there were none of value that could be used for comparison.

Summary of the Evidence Presented by the Defendant

Dr. Ronald Acton, a forensic DNA expert from Montgomery, Alabama, testified for the defendant, and while agreeing with Ms. Booker’s findings that the rectal swabs contained a DNA mixture contributed by two individuals, he suggested that any conclusion that the defendant was the male contributor, had to be based on an assumption that the sample was collected, preserved, and tested correctly and that the evidence was not mingled — an assumption that he did not accept. He also questioned the population profile used by Ms. Booker and suggested that it failed to meet scientific scrutiny. Ms. Booker had testified that the profile acquired from the scientific testing generates a number indicating the rarity of the profile in the population and that the number generated in her testing indicated that it was more rare than one in 300 billion people (more than enough to satisfy the “scientific certainty” standard). However, Dr. Acton suggested that the number was based on a random population and not Louisiana’s unique population. According to Dr. Acton, the supposed profile was not based on a test of an |,individual’s 50,000 genes, but rather on sixteen out of a possible 40,000 genes. In his- opinion, the DNA profile in this case provided no information on the context or the circumstances under which the DNA was discovered and, therefore, was unreliable.

Donald Bearb, Jr. was a tug boat captain when he testified at trial, but was a twenty-one-year-old car salesman living in the Marigny Circle apartment complex in 1989. He testified that he met Ms. Wood in the washateria area of the complex two weeks before July 25, 1989, struck up a friendship, and dated her on or near the date of the homicide. According to Mr. Bearb, on the night of his date with Ms. Wood, he picked her up before dark and they spent the next few hours together at a commercial establishment called the Bull’s Eye, where they drank, talked, and threw darts. They returned to Ms. Wood’s apartment sometime between 10:00 and 11:00 p.m., where they engaged in consensual unprotected sex. Mr. Bearb testified that he left Ms. Wood at her apartment at 1:00 a.m.

Mr. Bearb became aware of the fire when a friend telephoned him at work on July 25, 1989, and informed him that fire trucks were in the apartment complex. Additionally, he was questioned by LPSD officers during the initial phase of the investigation. He informed the officers that he had dated Ms. Wood, but could not be specific concerning the particular time. That is to say, he could not remember whether the date had occurred the night before the fire, or the Friday before that. At trial, his memory remained inconsistent concerning the calendar date of his time spent with the victim. In his testimony, Mr. Bearb suggested that the date probably occurred the day before the homicide, but he was not sure. While he shared the | ^evening with Ms. Wood and engaged in sexual intercourse with her, he did not know her last name and was not sure whether her first name was Christine or Christina. The LPSD never requested a DNA sample from him, and he never provided a sample to anyone.

Another resident of the neighborhood in 1989, Tasha Stafford, testified that she recalled the fire trucks on July 25, 1989, but initially knew nothing of what had occurred that morning. In July of 1989, she was fourteen years of age and living with her mother in Jackson Square. Despite her very young age, she was also involved in an intimate relationship with Michael Dickerson, a nineteen-year-old resident of a nearby apartment. Ms. Stafford testified that she would often visit Mr. Dickerson at his apartment and not return home for two or three days. Despite her mother’s efforts to prevent the relationship, it continued to flourish for a few months after the events of July 25, 1989, and she testified that it was at one of these visits that he shared with her some information concerning Ms. Wood’s murder.

According to Ms. Stafford, one morning in November of 1989, she skipped school to spend the day with Mr. Dickerson, and when she approached his apartment, she observed Maria Turner leaving the apartment in tears. She questioned Mr. Dickerson concerning what she saw, and he informed her that Ms. Turner was having problems with her boyfriend. During the rest of the day, Ms. Stafford and Mr. Dickerson engaged in sexual activities and consumed narcotics together, and toward the end of the day, Mr. Dickerson told her he had something to tell her that she must keep secret. Mr. Dickerson then informed Ms. Stafford 1 inthat he and Michael Guidry had raped, killed, and burned Ms. Wood on the morning of July 25, 1989. He then gave her a pocket knife and told her to dispose of it. Initially, she thought he was teasing and dismissed his confession as “bull-.” She did not initially relate this to anyone, and the first time she spoke to law enforcement personnel was in 2006.

Ms. Stafford was not the only individual sexually involved with Mr. Dickerson in 1989. Levonia Leger testified that in 1989, she also lived in Jackson Square and was intimately involved with Mr. Dickerson. According to Ms. Leger, she was frightened on the morning of July 25,1989, when she heard the news of the fire and homicide, and Mr. Dickerson calmed her fears because he informed her immediately after the event that it was a “mob job.” Ms. Leger testified that he knew this because he had friends in the LPSD. Mr. Dickerson was even aware that Ms. Wood had been raped, her throat cut, and that she had been shot. That same morning, Ms. Leger’s son Richard told her that he had seen Mr. Dickerson come out of Ms. Wood’s apartment. Sometime later that same year, Mr. Dickerson told Ms. Leger that he had committed the rape and murder of Ms. Wood. However, Ms. Leger did not share this information with law enforcement personnel until six or seven years prior to the trial.

Ms. Leger’s son Richard Campbell testified that he was eleven or twelve years old in 1989, and that he recalled seeing Mr. Dickerson walking away from the burning building, and saw him stop, smile, and keep walking. When interviewed by Detective St. Pierre years later, he told the detective that this incident occurred between 2:00 and 3:00 a.m., and later he stated simply that when he saw Mr. Dickerson, it was still dark. Additionally, with regard to the fire itself, |nMr. Campbell remembered seeing flames from the building, but he could not say if the flames were coming from the apartment windows or the roof.

At the time of the defendant’s trial, Mr. Dickerson was incarcerated in the Concor-dia Parish Correctional Facility serving a forty-year sentence for the rape of Maria Turner. He acknowledged that in 1989, he lived in close proximity to Marigny Circle and that he was maintaining intimate relationships with both Ms. Stafford and Ms. Leger at the time. When questioned directly about Ms. Wood’s rape and murder, Mr. Dickerson denied having any involvement in the offenses, claiming to have arrived at the scene after the fire was in progress. He stated that Michael Guidry told him that he had “slit [the victim’s] throat, strangled her, left and thought about it and said, ‘She might still be alive,’ went back and shot her and then set it on fire.” Mr. Guidry told him that the motive for these offenses was the fact that Ms. Wood owed him money for drugs. Other than what Mr. Guidry told him, he had “no idea what happened” on the morning of July 25, 1989, because he was not there. When asked about the details of an August 26, 1993 statement he gave to the police in an attempt to lessen his personal criminal charges, saying that he had information about the victim’s murder, he said it was not to get a deal, but to do “the right thing.”

The defense then recalled Detective St. Pierre, and he acknowledged that he was the investigating officer in the Maria Turner case. He further testified that he attempted to obtain the knife mentioned by Ms. Stafford to see if it could be connected to Ms. Wood’s murder, but ultimately failed because all evidence in that case had already been destroyed.

Assignment of Error Number One

h2In his first assignment of error, the defendant argues that the evidence at trial was insufficient to support his conviction for second degree murder. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review, now legislatively embodied by La.Code Crim.P. art. 821, does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of |13the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’” McDaniel v. Brown, 558 U.S. [120], [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (third alteration in original).

The factual evidence before us establishes that Ms. Wood died in her apartment on July 25, 1989, sometime after her early morning conversations with Mr. Roger and Mr. Tillman Cheramie and before Mr. Brown arrived on the scene. The factual record also establishes that the defendant resided in a downstairs apartment in the complex on the morning of July 25, 1989, and in close proximity to the time of Ms. Wood’s death, he engaged in sexual intercourse with her. The remaining evidentiary issues are either disputed or consist of circumstantial evidence. How circumstantial evidence is to be considered in relation to direct evidence is well-settled.

The characterization of evidence as “direct” or “circumstantial” points to the kind of inference which is sought to be drawn from the evidence to the truth of the proposition for which it is offered. If the inference sought is merely that certain facts are true because a witness reported his observation and the assumption is that witnesses are worthy of belief, the evidence is direct. When, however, the evidence is offered also for some further proposition based upon some inference other than merely the inference from assertion to the truth of the fact asserted, then the evidence is circumstantial evidence of this further fact-to-be-inferred. State v. Graham, 422 So.2d 123 (La.1982).

State v. Norman, 434 So.2d 1291, 1293 (La.App. 3 Cir.1983).

114Furthermore, “[t]he rule as to circumstantial evidence is: 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.

Louisiana Revised Statutes 14:30.1(A)(1), as it applies to this matter, defines second degree murder as “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” Additionally, specific intent to kill may be inferred by the severity of a victim’s injuries. State v. King, 13-469 (La.App. 3 Cir. 11/6/13), 124 So.3d 623. In this matter, Ms. Wood’s killer clearly evidenced the intent to kill and inflict great bodily harm: he slit her throat, shot her in the head three times, and set her on fire. He also used a ligature around her neck for obvious control purposes.

On the other hand, the defendant points to the evidence from his DNA expert and the witnesses who attempted to connect Mr. Dickerson to the offense either as a participant or accessory. However, it is clear that the jury rejected all of this evidence, and we find no error in that rejection. “[I]t is the role of the fact-finder to weigh the credibility of a witness.... [T]he trier of fact ... may accept or reject, in whole or in part, the testimony of a witness.” State v. Authorlee, 12-1179, p. 10 (La.App. 3 Cir. 4/3/13), 111 So.3d 1170, 1176, writ denied, 13-1028 (La.11/15/13), 125 So.3d 1101.

Applying the Jackson standard to the sufficiency issue and viewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have found the elements of the offense proven beyond a reasonable doubt. We find no merit in this assignment of error.

| Assignment of Error Number Two

In this assignment of error, the defendant asserts that the trial court erred in replacing a juror with an alternate juror four days into the trial. The juror in question, Robert Spears III, was the twelfth juror selected and after selection of alternate jurors, the trial began on Tuesday, April 23, 2013. On Monday, April 9, 2013, Mr. Spears called to say that he was ill and would be unable to come to court. He was instructed to provide medical evidence of his inability to proceed. After informing trial counsel of the complication, the trial court also informed the jury of the reason for the delay in beginning testimony. Mr. Spears then notified the court through the jury pool that he had a 3:00 p.m. doctor’s appointment and that he would fax the information concerning his situation as soon as he obtained it. However, he again stated that he was too ill to come in that day. The trial court then removed Mr. Spears as a juror and replaced him with the first alternate, Diane Salts.

At this point, counsel for the defendant informed the court that he had seen the juror in the City at 5:00 p.m. the day before and found it “surprising” that Mr. Spears would complain of being sick the very next day. However, when asked by the trial court for suggestions concerning how else to proceed, counsel had none. The defendant’s counsel voiced no further objections and failed to request a mistrial.

It is well settled that a juror’s illness may render him unfit or unqualified to serve. State v. Toussand, 437 So.2d 989 (La.App. 3 Cir.1983). Moreover, the replacement of a juror with an alternate juror is within the trial court’s discretion. State v. Tatum, 09-1004 (La.App. 5 Cir. 5/25/10), 40 So.3d 1082. However, |1fibecause the defendant failed to object to the juror’s replacement, he may not raise that objection for the first time on appeal. Uniform Rules — Courts of Appeal, Rule 1-3. Thus, not only does this assignment lack merit, it was not preserved for review.

Assignment of Error Number Three

In this assignment of error, the defendant asserts that the trial court erred in allowing the state to refer to other crimes evidence by continually mentioning that his name is recorded in the CODIS system. We find no merit in this assignment of error because our review of the record reflects that this was never an issue in the presence of the jury.

When Ms. Booker first mentioned CO-DIS, she started to explain what it stood for and was immediately stopped by the trial court. Out of the presence of the jury, the trial court instructed Ms. Booker to “avoid any suggestion” that CODIS is a data base consisting of a collection of criminal activity. When the jury returned, Ms. Booker described CODIS as “a database of DNA profiles for search against each other.” When asked how CODIS was used in this case, Ms. Booker testified that “[t]he DNA profile that was obtained from evidence in the victim’s body and in particular the DNA profile that was obtained from the sperm faction from her rectal swab, the DNA profile was entered into CODIS.” She then explained that this comparison resulted in a “hit” or “match in the male profile.” Ms. Booker testified that she used this information, which consisted of a number unattached to any name, to have the local law enforcement agency obtain a DNA sample from the individual identified by that number for further testing. A DNA profile was taken from the defendant, compared with the sample available to the [17Crime Lab, and found to match. The defendant voiced no objection to this line of questioning.

While the defendant now complains that the trial court allowed the state to continually refer to the presence of his name in CODIS, he only objected to the conference discussion and never to anything Ms. Booker stated to the jury. Thus, he failed to preserve any objection to what was told to the jury and cannot raise this issue for the first time on appeal. Uniform Rules-Courts of Appeal, Rule 1-3.

Assignment of Eiror Number Four

In this assignment of error, the defendant asserts that the trial court erred in rejecting his motion for new trial. Specifically, he asserts that the state misled the jury in closing argument when it read an excerpt from Ms. Booker’s report relating to a reference sample of blood taken from Mr. Dickerson.

Louisiana Code of Criminal Procedure Article 851 provides in pertinent part that a new trial shall be granted when:

(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The report had been introduced into evidence but had not been shown to the jury prior to closing argument. The report indicated that Ms. Booker had received a reference sample of blood from Mr. Dickerson, but it did not indicate that any 118extraction had been performed on that blood. The report did indicate, however, that Mr. Dickerson had been excluded as a contributor to the DNA profiles obtained from the victim’s swabs. When the state argued in closing that Mr. Dickerson had been excluded as a contributor, the defendant objected to that statement, and the trial court overruled the objection. However, when the state renewed its closing argument, it did not go back to that same argument.

In his brief to this court, the defendant argues that he is entitled to a new trial because the state’s conduct violated La. Code Crim.P. arts. 770, 774, and 775, which address prejudicial remarks as a basis for mistrial. However, the defendant did not request a mistrial when the comments were made, and the articles do not apply to a new trial issue. Furthermore, even though the state mistakenly told the jury that Mr. Dickerson had been excluded as a DNA contributor, we find this to be harmless error. The overwhelming evidence establishes that the defendant was the contributor of the sole male DNA profile found in the victim’s vaginal and rectal swabs. The state’s comments did not likely contribute to the jury’s verdict, and we find no merit in this assignment of error.

Assignment of Error Number Five

In this assignment of error, the defendant argues that the trial court erred in allowing the state to introduce the coroner’s report into evidence.

A coroner’s report is admissible to prove the fact and/or cause of death, but it is not competent evidence of any other fact. La.Code Crim.P. art. 105. It is admissible as an exception to the hearsay rule because it does not offer proof of guilt or innocence and does not implicate the accused. State v. Russell, 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154, writ denied, 07-2069 (La.3/7/08), 977 So.2d 897.

|1flThe coroner’s report in this matter established that the cause of death was the gunshot wounds Ms. Wood sustained, but it went further to theorize that Ms. Wood was “probably raped” despite a finding of “no evidence of cervical trauma or vaginal tears.” Because of this finding in the coroner’s report, the state continually referred to Ms. Wood as both a murder and rape victim.

The defendant first asserts that it is error to allow the coroner’s report to be introduced at all when the coroner is unavailable for examination on the report. We find no merit in this argument. In Russell, as in the matter before us, the autopsy report was cumulative evidence of the victim’s death and its cause. The Russell court determined that the defendant’s statutory and constitutional rights were not substantially violated because the death and its cause were uncontroverted.

Next, the defendant argues that the report should not have been admitted because it denied him his constitutional right to cross-examine the coroner on the rape findings. We agree with the defendant’s argument that La.Code Crim.P. art. 105 does not authorize the use of the coroner’s report to establish elements of a rape in that it does deny him his constitutional right to cross-examination. United States Constitution Amendment VI protects an individual’s right to confront testimonial evidence against him “and to subject [witnesses’] testimony to rigorous testing in an adversary proceeding before the trier of fact.” State v. Stewart, 45,333, p. 18 (La.App. 2 Cir. 8/11/10), 46 So.3d 714, 725, writ denied, 10-2145 (La.9/30/11), 71 So.3d 273 (citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, reversed in part on other grounds, Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008)). The use of the report to establish elements of a rape violated the defendant’s right in that respect. Still, “[c]onfrontation errors are subject to the harmless error analysis, so the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error.” Id. (citing State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000)).

In this case, the defendant was convicted of second degree murder, a violation of La.R.S. 14:30.1. For the jury to have convicted the defendant of that offense, it had to have found that the state established beyond a reasonable doubt that the defendant killed Ms. Wood and that he either had the specific intent to kill her or inflict great bodily harm or that he committed the offense during the commission of another felony, including aggravated or forcible rape. Id. The record does not indicate the finding on which the jury based its verdict.

In State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, the trial court instructed the jury that it could either find that the defendant charged with second degree murder had the specific intent to kill or inflict great bodily harm on the victim or that he killed the victim during the perpetration of a listed felony. After his conviction, the defendant argued on appeal that ten jury members required to convict “may not have reached the necessary agreement to support a second degree murder conviction under the same theory” based on the evidence and the jury instructions. Id. at 148. The first circuit held that “a jury is not constitutionally required to agree on a single theory to convict a defendant where it is instructed as to alternate theories. Thus, a conviction can be upheld if there is sufficient evidence based on either of the alternate theories with which the jury is charged.” Id. at 149 (citations omitted).

|21Here, the record does not indicate the theory under which the jury convicted the defendant of second degree murder. If the verdict was based on felony murder, the only evidence at trial pertaining to rape was the autopsy report. Thus, the autopsy report would be the basis for more than proof of the fact and cause of death. However, evidence other than the autopsy report was sufficient to show that the killer had the specific intent to kill the victim or inflict great bodily harm on the person of Ms. Wood. The jury convicted the defendant of the offense and, based on the holding in Patorno, 822 So.2d 141, we find that evidence was sufficient for the jury to convict him on the specific intent theory of the offense. Thus, while we find that the trial court erred in allowing the coroner’s report to be introduced into evidence, we find this to be harmless error. We find no merit in this assignment of error.

Assignment of Error Number Six

In this assignment of error, the defendant asserts that the trial court erred in not allowing him to present an alternative theory of defense. Specifically, he asserts that the trial court erred in prohibiting him from questioning Gary Cheramie about his relationship with the victim, thereby establishing the possibility of Mr. Cheramie’s involvement in her death.

Mr. Cheramie testified that a window next to the front door of the apartment had been broken prior to the fire and that he cut himself on it during an argument with Ms. Wood. While denying that he and Ms. Wood had a bad personal relationship, he acknowledged that he and Ms. Wood’s relationship was not totally stable. Specifically, he testified to a dispute between him and Ms. Wood, which resulted in Ms. Wood temporarily leaving and moving into an apartment with another man. This, according to Mr. Cheramie, occurred approximately one month | ^before her death. According to Mr. Cheramie, the basis of the dispute was the fact that Ms. Wood was a “very flirtatious girl” and that he suspected she was seeing other men when he was offshore. Law enforcement personnel were involved in some of the disputes between Mr. Cheramie and Ms. Wood.

The defendant construed the state’s use of Mr. Cheramie as an attempt “to give [the jury] the impression that this was a great relationship, everything was perfect” and that this was not true. However, the trial court questioned the defendant’s position on the relationship given the complete lack of evidence to establish that Mr. Cheramie was anywhere other than offshore at the time of the offense. The defendant acknowledges that he cannot establish that Mr. Cheramie was not offshore, but that Mr. Cheramie’s sister had given a statement that she knew someone in the mafia, and the defendant believed that Mr. Cheramie was in a position to have someone rape or harm the victim. Specifically, the defendant saw relevance in the evidence suggesting that Ms. Wood had sexual relations with other men after the confrontation with Mr. Cheramie.

In fact, the defendant successfully established to the jury that Ms. Wood had sexual relations with men other than Mr. Cheramie and that she left Mr. Cheramie on at least one occasion and spent the night with another man. Additionally, Mr. Cheramie acknowledged in his testimony that he told law enforcement officers that other men had visited his apartment while he was away. Thus, Mr. Cheramie’s testimony did not give an impression of a perfect relationship, the defendant had no evidence to suggest that Mr. Cheramie was not offshore at the time of the | ¡^offense, and the defendant failed to call Mr. Chera-mie’s sister as a witness despite the fact that she was at the trial.

We find no merit in this assignment of error.

Assignment of Error Number Seven

The jury convicted the defendant of second degree murder by a ten to two verdict, and in his final assignment of error, the defendant argues that the trial court erred in allowing him to be convicted by less than a unanimous verdict. He acknowledges that La.Code Crim.P. art. 782(A) requires ten jurors to concur in a verdict of second degree murder, but still argues that we should find that provision unconstitutional.

We decline to do so. The Louisiana Supreme Court has repeatedly held La. Code Crim.P. art. 782 to be constitutional. State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738; State v. Jones, 381 So.2d 416 (La.1980); State v. Simmons, 414 So.2d 705 (La.1982); State v. Edwards, 420 So.2d 663 (La.1982). We find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction in all respects.

AFFIRMED.

      . Ms. Wood would have been twenty years of age had she lived to her December 17, 1989 birthday.

      . Mr. Roger testified that at the time he worked for Caldwell Technology, and had met Ms. Wood through Gary Cheramie a few times. However, nothing in the record explains why she telephoned Mr. Roger on the morning of her murder other than to reaffirm that Mr. Cheramie was offshore at the time.

      . At approximately 8:30 a.m., LPSD deputies appeared at Mr. Roger’s office inquiring of the whereabouts of Gary Cheramie. Mr. Roger contacted the offshore rig and confirmed Mr. Cheramie’s presence on the rig.

      . At the time of trial, Mr. Benoit was the Fire Chief of the Lafayette Fire Department.

      . Although Chief Benoit testified that he collected six samples from the area of the accel-erant, and that an empty cooking oil bottle was found in the apartment, nothing in the record identifies the particular accelerant used to burn the apartment and Ms. Wood’s body.

      .She did observe a bloody broken pane of glass to the right of the apartment door, but concluded that it had been broken from the inside of the apartment.

      . Ms. Booker’s report entered into evidence identifies these four other individuals as Sa-mir Moh's Tobeh Alais, Pat Costello, Michael Guidry, and Chad Leger.

      . On the morning of July 25, 1989, the defendant had been sharing a downstairs apartment with Paulette Mire in the building adjacent to Ms. Wood’s apartment. The utility records establish that utilities were connected on January 3, 1989, and disconnected on August 16, 1989. LPSD Detective Allen Venable interviewed Paulette Mire in 1989, and was told that she was out of town on the morning of the homicide. However, no one with the LPSD interviewed the defendant in 1989.

      . Mr. Bearb testified specifically that he did not use a condom.

      . July 25, 1989, was a Tuesday.

      . Jackson Square is another apartment complex immediately adjacent to Marigny Circle.

      . Mr. Dickerson was later convicted of having raped Maria Turner that day.

      . Ms. Stafford testified that Mr. Dickerson told her that he and Mr. Guidry had burned the victim from the waist down.

      . Despite being questioned extensively concerning the content of his prior statement, the statement itself was not introduced into evidence.

      . The record contains nothing to suggest any other information was received by the trial court from Mr. Spears after he kept his doctor's appointment or even if he kept the appointment.

      . Evidence of other crimes was actually presented to the jury by the defendant himself. During the cross examination of Detective St. Pierre, the detective was asked by the defendant's counsel why the defendant had been arrested. Detective St. Pierre responded that he had been arrested for “failure to register as a sex offender and first degree murder.”

      . It appears from the record of this matter that the coroner who prepared the report died prior to trial.

      . In fact, other evidence clearly established that he was offshore at the time of the offense.

      . Tillman Cheramie, Gary Cheramie’s father, testified that his daughter was present in the courtroom at the time of his testimony. Assuming this daughter is also the sister with mafia connections, she was available to testify at trial, but was not called as a witness.


source: Caselaw Access Project

author: SAUNDERS, Judge. PETERS, J.

license: Public Domain

text:
    Jody MATT v. DUAL TRUCKING, INC.
    No. 13-1403.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Mark Louis Riley, Glenn Armentor Corp., Lafayette, LA, for Plaintiff/Appellant, Jody Matt.
    Todd Anthony Delcambre, Law Offices of Henry H. LeBas, Lafayette, LA, for Defendant/Appellee, Dual Trucking, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

|, This is a workers’ compensation case involving the propriety of the WCJ granting the employer’s motion for summary judgment dismissing it from the workers’ claim. According to the worker, he was exposed to various chemical residues while cleaning the employer’s tanks and this exposure caused him to have adverse health conditions. The employer contends that the worker cannot carry his burden to prove causation between any exposure to chemicals he had and any illness or injury he suffers.

FACTS AND PROCEDURAL HISTORY:

Jody Matt was the employee of Dual Trucking, Inc. (Dual) in Scott, Louisiana. One of Matt’s job duties involved him cleaning tanks which he contends were toxic, hazardous, and/or radioactive. On March 24, 2011, Matt asserts that he was exposed to chemical residues while cleaning these tanks, and that, thereafter, he became sick due to the exposure.

On January 24, 2012, Matt filed a 1008 disputed claim for compensation against Dual. On July 24, 2012, Matt underwent an examination by his choice of physician, Dr. Tony Alleman, a board certified physician in occupational medicine. Dr. Alleman’s report contained the following pertinent language:

While it is almost certain that Mr. Matt has been exposed to a variety of toxins, some of which may have been at levels sufficient to cause disease, there is no condition at this time that seems to be unquestionably related to his occupational exposures of benzene, hydrogen sulfide and radioactive material.

Based on this report, Dual filed a motion for summary judgment on July 8, 2013. The WCJ held a hearing on this motion on September 5, 2013. After the hearing, on the same date, the WCJ granted Dual’s motion. Matt appeals and raises a single assignment of error.

^DISCUSSION OF THE MERITS:

Matt’s sole assignment of error is that the trial court erroneously granted Dual’s motion for summary judgment. We disagree.

Summary judgments are reviewed de novo. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. Summary judgment “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). “The procedure is favored and shall be construed to accomplish these ends.” Id. A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

Dual, as the movant, has the initial burden of proof for its motion for summary judgment. However, at trial, Matt, as the employee, has the burden to prove that he is entitled to workers’ compensation benefits due to an accident or injury occurring during the course and scope of his employment. Gradney v. La. Commercial Laundry, 09-1465 (La.App. 3 Cir. 5/12/10), 38 So.3d 1115. An essential element to Matt’s burden to prove entitlement to workers’ compensation 1 Sbenefits is that his work-related injury or illness was caused by his work-related accident.

Dual noted to the WCJ that there was a lack of factual support for finding that Matt’s alleged exposure to chemicals caused any of his medical conditions. Thus, as referenced by the WCJ, the burden shifted to Matt “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La.Code Civ.P. art. 966(C)(2).

After a thorough review of the record before us, we agree wit the WCJ that Matt failed to show that he can carry his burden to prove that any injuries or illnesses were caused by any exposure to any chemical. The only evidence in the record related to causation of Matt’s alleged symptoms is the report of Dr. Alleman. The report was obtained by Matt on December 10, 2012. It indicated the results from an examination Matt underwent by Dr. Alle-man on July 24, 2012. It contained the following pertinent language:

While it is almost certain that Mr. Matt has been exposed to a variety of toxins, some of which may have been at levels sufficient to cause disease, there is no condition at this time that seems to be unquestionably related to his occupational exposures of benzene, hydrogen sulfide and radioactive material.

We read this excerpt to state that even if there was exposure, it has not caused any harm as of the date of examination. Matt’s argument on appeal is that his case is complex and, given this complexity, he has not had enough time to find the evidence necessary to link his exposure to his illness. We find no credence to his assertion.

The record indicates that Matt had been in possession of Dr. Alleman’s report since December 10, 2012, and has not yet seen or even been scheduled to see another physician for a second opinion on whether any symptom he | ^experiences is related to chemical exposure. Further, Matt was aware of Dual’s motion for summary judgment for nearly two months prior to the hearing on the matter. The WCJ granted the only motion for a continuance Matt sought. In that motion, counsel for Matt requested that this matter be reset from mid-August to September 5, 2013, the date that the hearing on the motion transpired. Matt’s counsel cited a conflict with the date scheduled as the reason for requesting the continuance, not that more time was necessary to successfully seek a second medical opinion on this issue. Accordingly, given the status of the record, we find no merit to the assigned error.

CONCLUSION:

Jody Matt raised a single assignment of error asserting that the trial court erred in granting Dual Trucking, Inc.’s motion for summary judgment dismissing it from the case. We find no evidence in the record that Matt can carry his burden to prove causation between his alleged exposure to chemicals while on the job and any injury or symptom that he has sustained. Thus, we find no error by the WCJ in granting Dual’s motion. All costs of these proceedings are assessed to Jody Matt.

AFFIRMED.

PETERS, J., dissents and assigns written reasons.

PETERS, J.

dissents.

|,I respectfully disagree with the majority’s determination that the workers’ compensation judge (WCJ) did not err in granting the motion for summary judgment filed by Dual Trucking, Inc. (Dual Trucking). While the majority correctly notes that Dual Trucking’s burden is governed by La.Code Civ.P. art. 966(C)(2), I do not find that that burden has been met.

Since it did not bear the burden of proof at trial, Dual Trucking’s burden was establish that “there is an absence of factual support for one or more elements essential to” Mr. Matt’s claim. Id. In this case, Dual Trucking attempted to show that Mr. Matt could not meet his burden of showing that his illness was, more probably than not, caused by his work-related exposure to chemical residues. In attempting to do so, Dual Trucking relied entirely on Dr. Alleman’s report that “there is no condition at this time that seems to be unques tionably related to his occupational exposures to benzene, hydrogen sulfide and radioactive material.” (Emphasis added.) The correct question for Dr. Alleman is whether Mr. Matt’s condition is more probably than not related to his exposure to the various chemicals.

[Louisiana Revised Statutes] 23:1031.1 provides every employee disabled by an occupational disease shall be entitled to | gcompensation as if he received personal injury by an accident arising out of and in the course of his employment. [Louisiana Revised Statutes] 23:1031.1(B) defines an occupational disease as a disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.
The initial question is factual, i.e., whether the plaintiff sustained an occupational disease resulting from causes and conditions characteristic of and peculiar to his particular occupation, process, or employment. The plaintiff is not required to prove the causal connection with absolute certainty. The plaintiff must establish the cause of his disability by a reasonable probability. Peck v. Procter & Gamble Mfg. Co., 586 So.2d 714 (La.App. 3rd Cir.), writ denied, 590 So.2d 86 (1991).

Stutes v. Koch Servs., Inc., 94-782, p. 4 (La.App. 3 Cir. 12/7/94), 649 So.2d 987, 990, writ denied, 95-846 (La.5/5/95), 654 So.2d 335.

We are left to speculate how Dr. Alleman would have answered that question.

Given Dual Trucking’s failure to establish that there is an absence of factual support for this element of Mr. Matt’s claim, the burden did not shift to require Mr. Matt to produce any evidence. The WCJ should have rejected the motion for summary judgment on the showing made.

Even had Dr. Alleman’s report addressed this issue, it would still not have been sufficient to meet Dual Trucking’s burden. Louisiana Code of Civil Procedure Article 966(B)(2) provides in pertinent part that:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motions for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Dr. Alleman’s report fits none of these categories and, therefore, is not to be considered by the WCJ in rendering judgment on this issue.

I would reverse the grant of the summary judgment and remand for further proceedings.


author: KEATY, Judge.

text:
    Uletom HEWITT v. LAFAYETTE MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD.
    No. 13-1429.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      C. Theodore Alpaugh, III, Guste, Barnett, Schlesinger, Henderson, & Alpaugh, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellant: Uletom Hewitt.
    M. Candice Hattan, Attorney at Law, Lafayette, Louisiana, for Defendant/Appel-lee: Lafayette Municipal Fire & Police Civil Service Board.
    Michael P. Corry, Hallie P. Cored, Bri-ney, Foret & Corry, Lafayette, Louisiana, Counsel For Defendant/Appellee: Lafayette City-Parish Consolidated Government through Lafayette Police Department.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 Plaintiff, Uletom Hewitt, appeals the trial court’s judgment in favor of Defendant, Lafayette Municipal Fire & Police Civil Service Board. For the following reasons, the trial court’s denial of Hewitt’s request for the issuance of a writ of mandamus is reversed. This matter is remanded to the trial court with an order to issue the writ of mandamus prayed for by Hewitt in his Petition for Writ of Mandamus.

FACTS AND PROCEDURAL HISTORY

Hewitt was a police officer with the Lafayette Police Department and faced three disciplinary actions in 2011. The first disciplinary action, which was imposed on March 25, 2011, was a five-day suspension. The second disciplinary action, which was imposed on August 4, 2011, was a seven-day suspension. The third disciplinary action, which resulted in his termination, was imposed on August 30, 2011.

Hewitt appealed all three disciplinary actions to the Board pursuant to La.R.S. 33:2501(A). Hewitt timely filed his three appeals on April 6, 2011; August 8, 2011; and, September 7, 2011, respectively. The Board granted Hewitt an appeal in all three matters. Since both parties needed time to conduct discovery, the Board was not asked to set the cases for hearing at the time when Hewitt filed his appeals. After the parties conducted discovery, which was completed by early 2013, Hewitt’s counsel asked the Board to place the first appeal, i.e., the five-day suspension, on the docket for selection of a hearing date.

Hewitt’s counsel communicated this request to the Board via multiple e-mail exchanges with the Board’s secretary, Fre-derika M. Arnaud. These e-mails were dated January 23, 2013; April 24, 2013; May 7, 2013; and May 14, 2013. The first 12appeal, however, was never placed on the docket. The Board’s counsel advised Hewitt’s counsel that the Board would not hear the appeal while the federal lawsuit involving Hewitt was pending. Hewitt’s counsel subsequently sent another e-mail to Arnaud on May 30, 2013, asking that the issue regarding the Board’s refusal to hear the appeal be placed on the agenda for the upcoming meeting. In this e-mail, Hewitt’s counsel advised that the Board was supposed to let him know on the record that they were not going to hear Hewitt’s appeals while the federal suit was pending.

This next Board meeting occurred on June 11, 2013, wherein Hewitt’s counsel’s request regarding the appeals was addressed. The minutes of that Board meeting provide, in pertinent part:

8. Discussion: “To Clarify the Board’s position with regards to pending appeals and /or complaints to the Board by individuals involved in pending litigation in which allegations of retaliatory discipline/termination have been made.”
Present at the discussion was board attorney Ms. Candice Hattan to address the board on the pending appeals before the board. Specifically attorney C. Theodore Alpaugh on behalf of his client, Uletom Hewittf,] requested a status on his client⅛ pending appeals. The Board’s ruling was to Stay, all such appeals pending a final judgment from state or federal court which ever applies, on allegation of retaliatory discharge or retaliatory discipline.
Individuals who can attest to the Board that they have abandoned any efforts to pursue any further judicial relief in any state or federal court under oath, satisfying the Board, then their appeal may be set for hearing before the Civil [Service Boards.

Hewitt’s counsel subsequently received correspondence from Arnaud, which was dated June 17, 2013, advising of the foregoing action taken by the Board.

On July 12, 2013, Hewitt filed a Petition for Writ of Mandamus or Alternatively for Appeal in the trial court. Both the mandamus and the appeal |swere heard on September 23, 2013. The trial court denied the mandamus and the appeal. Judgment was entered on October 27, 2013. Thereafter, Hewitt appealed the trial court’s judgment.

On appeal, Hewitt is before this court alleging three assignments of error:

(1)The trial court erred by upholding the Board’s decision since the Board failed to act in good faith and for just cause when it denied Hewitt a hearing on his appeals;
(2) The trial court erred by upholding the Board’s decision since the setting of an appeal by the Board is a ministerial act which is properly the subject of a mandamus; and,
(3) The trial court erred by upholding the Board’s decision since the Board’s act of denying Hewitt a hearing on his appeals was an arbitrary and capricious abuse of discretion which can be addressed by mandamus.

LAW AND STANDARD OF REVIEW

Louisiana Revised Statutes 33:2501 provides the procedure for appeals by civil service employees to the Board. Louisiana Revised Statutes 33:2501(A) provides:

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.

Should that employee wish to appeal the foregoing decision of the Board rendered under Subsection A, Subsection E provides a procedure to appeal that Board’s decision to the trial court. Specifically, La. R.S. 33:2501(E)(1) provides:

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 the Part that 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.

l/flie standard of review for appealing the Board’s decisions to the trial court is as follows:

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. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

La.R.S. 38:2501(E)(3).

In Moore v. Ware, 01-3341, pp. 7-8 (La.2/25/03), 839 So.2d 940, 945-46 (citations omitted), the supreme court explained the standard of review required for an intermediate appellate court, such as this court, as follows:

If made in good faith and statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. Arbitrary or capricious means the lack of a rational basis for the action taken. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Likewise, the intermediate appellate court and our review of a civil service board’s findings of fact are limited. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error.

The supreme court in Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991) (citations omitted), elaborated on what constitutes good faith as follows: “The dismissal of a police officer does not occur ‘in good faith’ if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. ‘Arbitrary or capricious’ means the lack of a rational basis for the action taken.”

Legal cause is also required for disciplinary action against a civil service employee. Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3 Cir.1975), writ denied, 325 So.2d 273 (La.1976); Leggett v. Nw. State Coll., 242 La. 927, 140 So.2d 5 (1962). “Legal cause for disciplinary action exists if the facts found by the Iscommission disclose that the conduct of the employee impairs the efficiency of the public service.” Leggett, 140 So.2d at 9. A real and substantial relationship must be maintained “between the conduct of the employee and the efficient operation of the public service; otherwise legal cause” fails to exist and “any disciplinary action by the commission is arbitrary and capricious.” Id. at 9-10. The action taken by the appointing authority “must be set aside if it was not taken ‘for cause,’ even though it may have been taken in good faith.” Martin, 321 So.2d at 535.

“The [appointing [ajuthority has the burden of proving by a preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service.” Fernandez v. New Orleans Fire Dep’t, 01-436, p. 4 (La.App. 4 Cir. 2/6/02), 809 So.2d 1163, 1165. A classified employee has a property right in his employment which he cannot be deprived of without legal cause and due process. Moore, 839 So.2d 940.

DISCUSSION

Entitlement to La.R.S. 33:2501(A) Hearing

In his first assignment of error, Hewitt contends that the trial court erred by upholding the Board’s decision to stay the instant civil service appeals. Hewitt alleges that the Board failed to act in good faith and for just cause when it denied Hewitt a hearing. This denial, according to Hewitt, was based upon his participation in a federal lawsuit which contained allegations of retaliatory discharge and termination. Despite the federal lawsuit, Hewitt cites the following two reasons supporting his argument that there lacks a legal basis for the Board’s denial: (1) the Board is required by law to hear the appeals and (2) the federal court lacks subject matter jurisdiction since the Board is not a party to the federal lawsuit.

|Jn opposition, the Board confirms that it stayed Hewitt’s appeals and has not scheduled a hearing. The Board contends that, since Hewitt alleged the same relief in the federal lawsuit as requested in the appeals, inconsistent rulings could result should the appeals proceed prior to the conclusion of the federal lawsuit.

In the present case, neither party disputes that Hewitt was “subjected to any corrective or disciplinary action” and “discharged” from his employment duties pursuant to La.R.S. 33:2501(A). Neither party disputes that Hewitt timely appealed all three disciplinary actions to the Board. Thus, we agree with Hewitt that the Board is required under La.R.S. 33:2501(A) to hear the appeals. However, we must determine whether the federal lawsuit prohibits the Board from hearing the appeals.

Our review of the record shows that Hewitt, along with other current and former city police officers, filed a federal lawsuit in 2012 against numerous defendants. Those defendants included the Lafayette Police Department through the Lafayette City-Parish Consolidated Government and other police departments individually and in their representative ca-pacifies. The plaintiffs’ action arose under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 wherein they alleged that the defendants imposed a code of silence in order to stop police officers from reporting corruption and civil rights abuses that occurred within the police department. Marceaux v. Lafayette City-Parish Consol. Gov’t, 731 F.3d 488 (5th Cir.2013). The plaintiffs alleged that the defendants retaliated against them for rejecting those practices. Id. Absent from the list of named defendants is the Board.

|7In the federal lawsuit, the defendants attempted to get the federal court to stay the hearing of Hewitt’s appeals in the Board proceedings. Marceaux v. Lafayette City-Parish Consol. Gov’t, 2012 WL 4194521 (W.D.La.2012), vacated in part, 731 F.3d 488 (5th Cir.2013). Specifically, the defendants filed a Motion for Protective Order in order to prevent the plaintiffs from prosecuting their claims before any other tribunal, such as the Board. The defendants asked the federal court to prohibit the plaintiffs from interfering with the federal court’s jurisdiction to hear and determine the merits of their claims. This included restricting Hewitt’s participation in Board proceedings.

The federal court refused to stay the Board proceedings Specifically, the federal court held:

Applying the standard applicable under the All Writs Act to the instant dispute, the undersigned does not find the act applicable at this point to stay or otherwise restrict any Civil Service action or civil litigation properly commenced in the appropriate forum. Some of the pending litigation may lead to abstention by this Court should the complaint survive the pending motion to dismiss. Likewise, given the nature of some of the complaints made to the Civil Service Board that were presented in evidence, those claims should be properly exhausted in the administrative process before any legal proceeding can take place.
While this Court does not look favorably on duplicative litigation in other venues, an issue which will be addressed in the forthcoming Report and Recommendation applicable to the requested sanctions, it does not see fit to tie the hands of the Civil Service Board or the 15th Judicial District Court, and concludes at this time that both entities are better fit to deal with the matters pending before them given the current procedural posture of this case. However, should this case survive the motion to dismiss, this Court will not hesitate to apply the analysis undertaken in Newby v. Enron Corp. [, 302 F.3d 295 (5th Cir.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1270, 154 L.Ed.2d 1024 (2003),] to enjoin future litigation under the All Writs Act and will revisit this issue if circumstances warrant.

Id. at 5 (bold emphasis added).

IsBased on our reading of the federal court’s holding, its refusal was based on its opinion that the Board was better equipped to handle these matters despite a possible overlap with the federal litigation. As a result, the federal court deferred to the Board and stated that the plaintiffs, such as Hewitt, should exhaust their administrative remedies, i.e., Hewitt’s civil service appeals, before any related action to those claims could be addressed in the federal litigation. Since this ruling, a majority of the causes of action in the federal lawsuit have been dismissed. Marceaux v. Lafayette City-Parish Consol. Gov’t, 921 F.Supp.2d 605 (W.D.La.2013). Based on the foregoing and since the Board is not a party to the federal litigation, we find that there is no reason to wait on the federal court action.

The Board’s attorney also argued before the trial court that it should deny the appeal and/or mandamus based in part on the federal court’s gag order. Specifically, the Board’s attorney stated:

[A]nd I might note that there’s a gag order as well. You know, the Board is faced with, you know, in honor of that gag order, we don’t want people coming up before the Board and saying things that the federal court has instructed them not to.

Thereafter, the following colloquy took place between the trial court and Hewitt’s attorney:

THE COURT: How does the Board get around what I see as a quandary given a gag order from the federal court and along with the proceeding with the administrative hearing?
MR. ALPAUGH: We’re aware of the gag order, Your Honor, and I’m not sure how far it goes. So I wish that I could answer that, but I can’t.
THE COURT: But you can understand the quandary?
MR. ALPAUGH: I do understand it. I do understand.
THE COURT: Well, I’m happy you do. I’m going to deny the mandamus.

| ciBased on the foregoing, the trial court denied the mandamus and the appeal based upon the gag order. During that hearing, Hewitt’s counsel was unaware of the extent, terms, and conditions of the gag order. After the trial court’s ruling, the federal court issued the following with respect to the gag order:

The Officers sued under 42 U.S.C. §§ 1983, 1988, alleging, inter alia, that the Lafayette PD Defendants imposed a “code of silence” to prevent police officers from reporting certain civil rights abuses and corruption within the Lafayette Police Department and that the Lafayette PD Defendants retaliated against them for objecting to these practices. Relevant here, the Officers communicated with the media concerning the case and maintained a website, www. realcopsvcraft.com (the “Website”), which contained: an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants; certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants’ alleged failings. The Officers’ attorneys eventually transferred ownership of the website to one of the Officers.
In response to this publicity, the Lafayette PD Defendants sought a protective order seeking certain limits on communications with the media and removal of the Website. At the conclusion of the two-day hearing, the magistrate judge orally granted the Lafayette PD Defendants’ request to limit the trial participants’ communication with the media and public. The magistrate judge then entered a written order accompanied by a memorandum ruling.

The magistrate judge opined from the bench that “[t]he [Wjebsite ... is patently offensive on its face as a means of producing information rather than being an objective source of information supposedly created for the protection of the litigants.” In the subsequent written order, the magistrate judge

ordered that the parties’ and their attorneys’ contact and communication with and through the media shall be limited to (a) information contained in the public record; (b) identification of parties and claims/defenses asserted in this matter; (c) the scheduling or result of any step in this litigation; (d) references that investigation(s) is in progress, without disclosure of investigation details; (e) requests for assistance in obtaining evidence or information; (f) warnings of danger concerning the behavior of persons who are parties in this case when there is reason to believe, based on a reasonable factual [ ininquiry, that there exists a likelihood of substantial harm to an individual or the public interest.
The magistrate judge “further ordered that the website www.realcopsvcraft.com shall be closed and removed immediately, ceasing all operations and publication, and that the recordings shall not be publicly disclosed outside the confines of this case and any other pending legal proceeding, absent leave of court.” The restrictions on communications with the media were expressly modeled on Louisiana Rule of Professional Conduct 3.6 and the language approved in Brown, 218 F.3d at 429-31, and Levine v. U.S. District Court, 764 F.2d 590, 598-99 (9th Cir.1985). The magistrate judge also “order[edj the [Wjebsite be taken down” because it “not only contained] comments and information that would violate [Louisiana Rule of Professional Conduct] 4.4, it is and has been used as a vehicle by which to disseminate inappropriate information to the media and the public.” The primary rationale for the order was to allow for a fair trial by avoiding a taint on the prospective jury pool. Over objection, the district court adopted the magistrate judge’s order, and this appeal followed.

Marceaux v. Lafayette City-Parish Consol. Gov’t, 731 F.3d 488, 490-91 (5th Cir.2013) (bold emphasis added).

The foregoing gag order limited “the parties’ and their attorneys’ contact and communication with and through the media.” Id. at 491. The gag order does not limit testimony in the Board proceedings. Importantly, the foregoing states “‘that the recordings shall not be publicly disclosed outside the confines of this case and any other pending legal proceeding, absent leave of court.’ ” (Bold emphasis added.) This statement shows that the federal court intended for other pending legal proceedings to take place, including the Board’s hearing of Hewitt’s appeals. The Board, therefore, is without legal cause to refuse to set hearings on Hewitt’s appeals pursuant to La.R.S. 33:2501(A).

Accordingly, the trial court manifestly erred by upholding the Board’s decision since the Board failed to act in good faith and for just cause when it denied Hewitt a hearing on his appeals.

\uWrit of Mandamus

In his second assignment of error, Hewitt contends that the trial court erred by upholding the Board’s decision since the setting of an appeal by the Board is a ministerial act which is properly the subject of a mandamus. Hewitt alleges that the Board had a non-discretionary duty to grant and hear his appeals under La.R.S. 33:2501(A). Hewitt contends that the Board’s failure to perform this non-discretionary duty can be remedied by a writ of mandamus.

Mandamus is defined as “a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” La. Code Civ.P. art. 3861. “A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice!)]” La. Code Civ.P. art. 3862. “A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.” La.Code Civ.P. art. 3863.

Hewitt cites Hoag v. State, 04-857, p. 6 (La.12/1/04), 889 So.2d 1019, 1023, which discusses the requirements for issuance of a writ of mandamus:

Mandamus, codified in La. Code Civ. Proc. art. 3862, et seq., is an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief. This Court has routinely held that the only circumstances under which courts may cause a writ of mandamus to issue is where the actions sought to be performed by the legislature are purely ministerial in nature. A ministerial duty, the performance of which may be required of the head of a department by judicial process, is one in which nothing is left to discretion. Felix v. St. Paul Fire and Marine Ins. Co. 477 So.2d 676, 682 (La.1985).

Hewitt further cites City of Hammond v. Parish of Tangipahoa, 07-574, p. 12 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 181-82 (footnotes and citations | ^omitted), to explain that the supreme court utilizes a two-prong test to determine whether an action is a discretionary function:

The Louisiana Supreme Court, relying on Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), has devised a two-step test which courts generally employ to determine whether an action is a discretionary function. First, if a statute, regulation, or policy prescribes a particular course of action, there is no choice or discretion involved. However, when acts of government employees involve an element of choice, they are discretionary acts if the choices are grounded in social, economic, or political policy. Neither the trial court nor a reviewing court may substitute its wisdom for that of the governing body, except when there is an abuse of discretion or an excessive use of power.

Utilizing the foregoing two-prong test, we must determine whether setting an appeal under La.R.S. 33:2501(A) is discretionary. As discussed above, La.R.S. 33:2501(A) provides in part that “[a]ny ... employee ... who feels that he has been discharged or subjected to ... disciplinary action without just cause, may, within fifteen days after the action, demand ... a hearing and investigation by the board to determine the reasonableness of the action.” The statute further provides that the Board “shall grant the employee a hearing and investigation within thirty days after receipt of the written request.” Id. We find that La.R.S. 33:2501(A) is not discretionary since setting a hearing on a civil service appeal has nothing to do with “social, economic, or political philosophy.” Rather, the Board’s function is to hear Hewitt’s appeals.

Moreover, La.R.S. 1:3 provides that “[t]he word ‘shall’ is mandatory.” Louisiana Revised Statutes 1:4 provides that “[w]hen 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.” Since La.R.S. 33:2501(A) states that the Board “shall grant the employee a hearing and investigation,” the Board is mandated to grant the hearing on Hewitt’s appeals.

| i8In opposition, the Board contends that mandamus relief is not appropriate because the Board’s scheduling of a hearing is a discretionary act under La.R.S. 33:2501(B)(3). Louisiana Revised Statutes 33:2501(B)(3) provides, in pertinent part, that “[t]he board shall have complete charge of any such hearing and investigation, and may conduct it in any manner it deems advisable.” By determining when to hold the hearing and in staying this administrative action pending resolution of the federal court litigation, the Board alleges that it acted within its authority and discretion pursuant to La.R.S. 33:2501(B)(3).

Despite the Board’s argument, La.R.S. 33:2501(A) provides when the Board “shall” grant the employee a hearing. Since its provisions are mandatory, the Board lacks any reasonable basis not to comply. See La.R.S. 1:3. Thus, the Board’s argument lacks merit.

The Board further opposes by alleging mandamus is unwarranted because of an unreasonable delay by Hewitt in applying for the writ such that it is untimely pursuant to Comment (b) of La.Code Civ.P. art. 3862. Comment (b) to La.Code Civ.P. art. 3862 provides that “[mjandamus will be denied where there has been an unreasonable delay in applying for it.” We find that the Board’s argument fails, however, based upon this court’s holding in Durr v. Natchitoches Municipal Fire & Police Service Board, 392 So.2d 720 (La.App. 3 Cir.1980).

In Durr, a police officer appealed the trial court’s ruling, which affirmed the board’s finding that the police officer’s dismissal was made in good faith for cause. This court affirmed the trial court’s decision and held that:

Although the record does reveal the Board failed to comply with the thirty day requirement of LSA-R.S. 33:2501(1), this circumstance does not warrant a reversal of the Board’s decision which we find to have been made in good faith and for cause. There |14is absolutely nothing in the record to indicate that appellant was prejudiced by the delay in hearing.

Id. at 722. We based our holding upon the following analysis:

The appellant contends the Board’s decision is invalid because a hearing and investigation was not 'granted within thirty days after receipt of his written request as required by LSA-R.S. 33:2501(1).
Correspondence between the parties shows the hearing was set by the Board for November 29, 1978. This date was within thirty days of Mr. Durr’s request. A postponement of the hearing date to December 6, 1978, was made at Mr. Durr’s request. The hearing on December 6, 1978, could not be held due to the illness of a witness so it was reset for December 20, 1978. The hearing was again delayed when the Board lacked a quorum on December 20, 1978. In a letter dated January 23, 1979, Mr. Durr’s attorney and the chairman of the Board agreed to hold the hearing on January 26, 1979. Mr. Durr reserved the right to appeal from the failure of the Board to comply with the thirty day requirement of LSA-R.S. 33:2501(1). The hearing was held on January 26, 1979, when Mr. Durr and the City agreed to waive their right to have a quorum of the Board members present.

Id. at 721-22.

Based on our reading of Durr, the multiple postponements of the hearing were due to many reasons. These postponements were not incurred due to anyone’s fault. This court found that since Durr was not prejudiced by the multiple postponements, the delay did not run afoul of the thirty-day requirement imposed in La.R.S. 33:2501(1).

In the present case, Hewitt contends that when he was granted the appeals, the Board was not asked to set the hearing at that time due to both parties needing time to conduct discovery. The Board does not dispute this. After the parties conducted the discovery, which was completed by early 2013, e-mails contained in the record show that Hewitt’s counsel asked the Board to place the first appeal on the docket for selection of a hearing date. It was at a subsequent Board meeting held at the urging of Hewitt’s counsel that a ruling was made that Hewitt’s appeals hswould not be heard during the pendency of the federal litigation. As discussed above, that ruling has no basis given the federal court’s refusal to stay the Board proceedings and the limits imposed by the gag order which do not affect Hewitt’s right to a hearing on his appeals. Unlike Durr, we find that the Board’s refusal to grant Hewitt’s hearings have prejudiced him as he is unable to work as a police officer. We agree with Hewitt in that he is being held in limbo by the Board’s actions. Based on the foregoing, Hewitt has an absolute right under La.R.S. 3:2501(A) to a hearing before the Board, and the Board had no discretion in this area.

Accordingly, the trial court manifestly erred by upholding the Board’s decision since the setting of an appeal by the Board is a ministerial act which is properly the subject of a mandamus.

Was The Board Arbitrary and Capricious?

In his third assignment of error, Hewitt contends that the trial court erred by upholding the Board’s decision. Hewitt alleges that the Board’s denial of a hearing on his appeals was an arbitrary and capricious abuse of discretion which can be addressed by mandamus.

In Torrance v. City of Shreveport, 231 La. 840, 93 So.2d 187 (1957), the supreme court addressed this court’s ability to correct an arbitrary and capricious act through mandamus. The supreme court stated:

While it is the general rule that mandamus may be invoked only to coerce performance of duties that are purely ministerial in nature, it is well settled in this state as well as in other jurisdictions that the writ may also be employed to reach and correct an arbitrary or capricious abuse of discretion by public boards or officials.

Torrance, 93 So.2d at 189.

|16“ ‘Arbitrary or capricious’ means the lack of a rational basis for the action taken.” Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991) (quoting Bicknell v. United States, 422 F.2d 1055 (5th Cir.1970)). In the context of a workers’ compensation case, the supreme court further stated that “[arbitrary and capricious behavior is willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” J.E. Merit Constructors, Inc. v. Hickman, 00-943, p. 5 (La.1/17/01), 776 So.2d 435, 437-38.

The Board and the trial court based their rulings on the existence of a federal lawsuit. The Board, however, is not a named party to the federal lawsuit. The federal court also deferred to the Board and stated that plaintiffs, such as Hewitt, should exhaust their administrative remedies, i.e., Hewitt’s civil service appeals, before any related action to those claims could be addressed in the federal litigation. Since this federal court ruling, a majority of the causes of action in the federal lawsuit have been dismissed. Additionally, the gag order does not limit testimony in the Board proceedings. Thus, there is no rational basis for the Board’s denial of the hearings and the trial court’s denial of the mandamus and appeal.

In opposition, the Board contends that the wrong standard has been utilized for the definition of “arbitrary and capricious” behavior. The Board alleges that the correct standard, which is provided in Fire Protection District Six v. City of Baton Rouge Department of Public Works, 03-1205, p. 3 (La.App. 1 Cir. 12/31/03), 868 So.2d 770, 772, writ denied, 04-299 (La.4/8/04), 870 So.2d 270, is whether it bears a “relation to the health, safety, or general welfare of the public.” The Board argues that since La.R.S. 33:2501(B)(3) gives it control over its docket, this matter is within the general welfare of the public.

As we discussed above, La.R.S. 33:2501(B)(3) fails to give the Board control, or discretion, over its docket since La.R.S. 33:2501(A) sets forth when the Board “shall” grant the employee a hearing. Thus, the Board’s argument is without merit.

Accordingly, the trial court manifestly erred by upholding the Board’s decision since the Board’s act of denying Hewitt a hearing on his appeals was an arbitrary and capricious abuse of discretion.

DECREE

The trial court’s denial of Uletom Hewitt’s request for the issuance of a writ of mandamus is reversed. This matter is remanded to the trial court with an order to issue the writ of mandamus prayed for by Uletom Hewitt in his Petition for Writ of Mandamus. All costs of this appeal are assessed against the Lafayette Municipal Fire & Police Civil Service Board.

REVERSED AND REMANDED WITH ORDER.

      . This statute provides a civil action for deprivation of rights.

      . This statute discusses the proceedings required for vindication of rights.