text:
    STATE of Louisiana v. Gregory SEARLS.
    Nos. 04-KA-790, 12-KH-210.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Martin A. Belanger, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

12Defendant/appellant, Gregory Searls (“Searls”), was charged with and convicted of simple burglary in violation of La. R.S. 14:62 on July 30, 2002. After Searls’ appeal to this Court was submitted, Searls filed a pro se writ application, No. 04-KH-1424, wherein he sought to file a pro se supplemental brief urging prosecutorial misconduct. That writ was denied. Subsequently, this Court affirmed Searls’ conviction and sentence.

In a subsequent pro se writ application, reviewed by this Court under State v. Cordero, we determined that we had erred in our previous ruling on Searls’ earlier writ application, and we granted the writ for the limited purpose of reopening Searls’ appeal to consider his late-filed brief. Searls filed another writ application in March 2012, claiming that no action had been taken with regard to our ruling in No. 08-WR-1181. Since Searls’ appeal is being considered at this Rtime based solely upon his late-filed brief, that writ has been incorporated for consideration with this appeal. We specially note that the present matter presents unique circumstances, and this appeal is considered exclusively under the peculiar facts of this particular case.

DISCUSSION

In his only original supplemental assignment of error, Searls alleged that the trial court erred in denying the defense’s motion for mistrial. He contended that the prosecutor informed the jury that “if the defendant takes the stand, you’ll see how many convictions he got.” Searls argued that this was an impermissible reference to his right to remain silent. The trial court sustained the defense’s objection, but it denied the request for a mistrial. Searls appealed this denial in his supplemental appellate brief.

During voir dire, the prosecutor stated: “Prior convictions; if a witness takes the stand, you can talk about their prior convictions. Now, it’s a common sense thing, do all of you think that — ” At this point, the defense objected and a bench conference was held.

MR. WILLIAMS:
Judge, I think that was totally improper to talk about — first of all, it’s treading on very thin ice to suggest about a defendant’s right to have to take the stand or not. You know, that’s playing a very fíne line but then to suggest to the jury and say, if he takes the stand, then you can find out his prior convictions—
MR. BELANGER:
That’s not what I said, Judge.
MR. WILLIAMS:
That’s what I heard.
MR. BELANGER:
I said if a witness takes the stand. That’s different. I didn’t say anything about the defendant taking the stand. I said if a witness takes the stand, you can talk about their prior convictions.
MR. WILLIAMS:
|4I think that to get into that, Judge, is to plant in their mind a motive for not taking the stand. And Mr. Searls—
THE COURT:
I’m going to sustain the objection. Let’s not get into that.
MR. BELANGER:
Okay, Judge.
MR. WILLIAMS:
But we’re asking for a mistrial, Judge, on that.
THE COURT:
Motion denied.
MR. WILLIAMS:
Please note our objection for the record.

La.C.Cr.P. art. 770(8) provides that a mistrial shall be ordered when the prosecutor makes a remark or comment during the trial or in argument, within the hearing of the jury, that refers directly or indirectly to the failure of the defendant to testify in his own defense. The purpose behind Article 770(S)’s prohibition against prosecutorial comment is to protect the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf.

When the prosecutor directly refers to the defendant’s failure to take the stand, the defendant must be granted a mistrial if he requests one. An indirect reference to the defendant’s failure to take the stand warrants a mistrial only when it is clear that the remark was intended to focus the jury’s attention on the defendant’s not testifying.

During voir dire, the State may mention the defendant’s constitutional privilege against self-incrimination to the jurors, and then inquire into the weight | ¿jurors will give to the defendant’s testimony if he decides to testify. In the instant case, we find that the prosecutor’s remark was not a comment on Searls’ failure to take the stand. In fact, the prosecutor did not mention Searls at all, but, rather, referred to “a witness.” Thus, it was certainly not a direct reference to Searls’ failure to testify. Further, it does not even appear to be an indirect reference since it does not seem that the remark was intended to focus the jury’s attention on his not testifying. Trial was only at the voir dire stage, at which point Searls had not yet elected whether or not to testify.

For these reasons, we find that a mistrial was not warranted and that the trial court did not err in denying the defense’s request for a mistrial. This assignment of error has no merit.

MATTER DISMISSED

      . State v. Searls, 04-790, p. 9 (La.App. 5 Cir. 1/25/05), 895 So.2d 40, 45, writs denied, 05-1343 (La.1/9/06), 918 So.2d 1041.

      . Searls v. State, 08-1181 (La.App. 5 Cir. 3/1/11) (unpublished writ disposition).

      . 08-1717 (La.10/3/08), 993 So.2d 203.

      . State v. Searls, 12-KH-210 (La.App. 5 Cir. 3/6/12).

      . State v. Packnett, 04-709, p. 11 (La.App. 5 Cir. 12/28/04), 892 So.2d 615, 622, writ denied, 05-0599 (La.6/3/05), 903 So.2d 455.

      . Id. (citing State v. Mitchell, 00-1399 (La.2/21/01), 779 So.2d 698, 701).

      . State v. Packnett, supra.

      . Id.

      . State v. Packnett, supra (citing State v. Shea, 421 So.2d 200 (La.1982), rev'd on other grounds, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985)).

      . See, State v. Shed, 36,321, p. 9 (La.App. 2 Cir. 9/18/02), 828 So.2d 124, 130 writ denied sub nom. State ex rel. Shed v. State, 02-3123 (La.12/19/03), 861 So.2d 561.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brandon D. EARLS.
    No. 12-KA-448.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Vincent Paciera, Jr., Michael D. Smith, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

^Defendant, Brandon D. Earls, appeals his second degree murder conviction from the 24th Judicial District Court, Division “M”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 10, 2009, the Jefferson Parish Grand Jury indicted Defendant with second degree murder in violation of LSA-R.S. 14:30.1. Defendant was arraigned the next day and pleaded not guilty. On November 8-10, 2011, the case was tried before a 12-person jury that found Defendant guilty as charged. Defendant’s motion for new trial was denied after a hearing on December 12, 2011. On that same date, after Defendant waived sentencing delays, the trial judge sentenced him to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On December 28, 2011, Defendant filed a timely motion for appeal that was granted.

The following facts were obtained from the testimony at trial.

lain 2009, Dominique Sanders and Defendant were living together in an apartment on Martinique Avenue in Kenner with Defendant’s cousin, Ronald Walker, In the middle of August of 2009, Ms. Sanders broke up with Defendant because he physically abused her; however, they were still living together. Ms. Sanders subsequently became romantically involved with Terry Lewis. On the night of September 2, 2009, Ms. Sanders was at 3633 Martinique Ave. with Defendant, and Defendant told her to come inside. She went inside and spoke with Defendant. During their conversation, Ms. Sanders told Defendant that she and Mr. Lewis were “talking.”

When Ms. Sanders tried to go back outside, Defendant slung her on the sofa and told her he wanted to be with her. She told Defendant she would be with him if he let her go; so, Defendant let her go, and she went outside. Ms. Sanders then called Mr. Lewis, and they met in the front of Martinique Ave. Ms. Sanders and Mr. Lewis went to a gas station and returned. When they returned, Bianca Cloud, a neighbor, called and asked if Mr. Lewis could bring her to Burger King. Ms. Cloud then met Ms. Sanders and Mr. Lewis at the car on Martinique Ave.

At some point, Defendant came up to the car and pulled on the handle of the passenger side door where Ms. Sanders was sitting. Defendant told Ms. Sanders to get out of the car because he wanted to talk to her. Mr. Lewis exited the car, walked around it, pushed Defendant, and told Defendant that Ms. Sanders did not have to get out of the car if she did not want to. Defendant walked away and said to Angie Cloud, another neighbor, “I’m a[sic] kill that b*tch.” Mr. Lewis got back into the car. Ms. Sanders, Mr. Lewis, and Bianca Cloud then went to Burger King, and afterwards, they returned to Martinique Ave.

Defendant and Ronald Walker, Defendant’s cousin, walked toward the car, and Ms. Sanders told Bianca Cloud to pull around the back, so she did. Bianca |4CIoud went inside her apartment, and Ms. Sanders and Mr. Lewis sat in the car and talked for approximately 30 minutes. Ms. Sanders and Mr. Lewis subsequently exited the car, and they talked some more, hugged and kissed. As they did so, Ms. Sanders heard something in the bushes, and Mr. Lewis’ eyes became wide. Afterward, someone came out and started shooting. Ms. Sanders screamed, and she and Mr. Lewis started running. She went inside Bianca Cloud’s apartment and heard approximately three more gunshots. Ms. Sanders heard Mr. Lewis say, “Oh, sh*t.” Bianca Cloud also heard gunshots and called the police.

At approximately 12:55 a.m. on September 3, 2009, Officer Christine Urrata of the Kenner Police Department heard a dispatch over the police radio regarding gunshots and someone wounded in a rear alley of 3541 Martinique Ave. She immediately proceeded to that location. As Officer Ur-rata approached, she observed a white vehicle with bullet holes in the vehicle and the driver’s side window shattered. She also observed a subject’s feet in front of the vehicle and a red substance that looked like blood.

Officer Urrata knocked on the door of a nearby apartment to search for witnesses and/or suspects. Ms. Sanders spoke to Officer Urrata, telling her she could not believe Defendant would do this. Officer Urrata recalled that she had stopped Defendant in that same alleyway during a routine patrol just one hour prior. She did so because Defendant and others, including a young child, were out very late at night on a weeknight, bouncing a basketball. Officer Urrata reviewed her notes from that earlier stop, obtained Defendant’s address, and notified other responding officers of Defendant’s possible location.

Officer Jeff Mocklin of the Kenner Police Department heard the broadcast over the radio. Officer Mocklin went to Defendant’s address, knocked on the door, and asked if Defendant was there. A black male answered the door and said IsDefendant was in the bathroom. The officers opened the bathroom door and saw a black male later identified as Defendant standing in front of a sink wiping his hands off in the sink. Officer Mocklin smelled bleach and observed a bottle of bleach below him in an open cabinet.

Officer Urrata was notified over the radio that Defendant was located inside of Apartment C at 3633 Martinique Ave. Officer Urrata went to that address and saw that Defendant had already been secured. She noticed that Defendant was “kind of chuckling a little bit” and had a “little bit of a smart alecky” kind of demeanor, unlike his earlier demeanor which was very agitated and aggressive. She also noticed at that time, Defendant was clad in a black t-shirt and dark colored blue jeans, unlike earlier when he was wearing red striped pajama pants and a white t-shirt.

Ms. Sanders was subsequently taken to the Kenner Police Department where she gave two statements. In her first statement, Ms. Sanders was not completely honest because she was scared of Defendant; however, in her second statement, she identified Defendant as the shooter. She testified that Defendant, while wearing a black hoodie, shot Mr. Lewis using a revolver. Ms. Sanders further testified that she could not see all of Defendant’s face that night, but she could see his top teeth as he was biting on his bottom lip, an expression she had seen on Defendant’s face before. She was certain that Defendant was the person who shot Mr. Lewis that night.

Detective Michael Cunningham of the Kenner Police Department advised Defendant of his rights. After Defendant waived them, he gave a statement confessing to the shooting, which was played for the jury. Detective Charlotte Synigal was present during Defendant’s statement as well. In the statement dated September 3, 2009, Defendant said that after Mr. Lewis pushed him away from the [ ficar, he went home, changed his clothes, came back, and shot Mr. Lewis with a revolver. Defendant stated that he was wearing a black hoodie at the time he shot Mr. Lewis. Afterwards, Defendant threw the gun into a canal and ran back to his cousin’s house.

Detective Shawn Watson of the Kenner Police Department obtained a search warrant for Defendant’s apartment and recovered a box of Winchester 9 mm Luger rounds, a gallon of Clorox bleach, a black hooded sweatshirt, and a box of Defendant’s checkbooks. Projectiles and fragments of projectiles were also found at the scene of the shooting.

Dr. Karen Ross, a forensic pathologist, performed the autopsy on Mr. Lewis. She testified that the cause of death was multiple gunshot wounds, and the manner of death was homicide.

Gerald Roser, a crime scene technician for the Kenner Police Department, performed a gunshot residue test on the palm of the victim’s hand, and the results were a presumptive positive. He also performed a gunshot residue test on Defendant that was negative. Mr. Roser explained that a gunshot residue test was performed to determine if a person fired a weapon or if a person was in close proximity to a shooter.

Colonel Timothy Scanlan, who was qualified as an expert in the field of firearms and tool mark examination, examined a projectile and the outer part of a projectile found at the crime scene and determined that they were consistent with being fired from the same weapon. Additionally, Colonel Scanlan testified that a positive gunshot residue test did not necessarily mean that- that person fired a weapon. He explained that up to 80 percent of the time homicide shooting victims test positive for gunshot residue because gunpowder is projected at them and, therefore, they no longer test most shooting victims because it is not scientifically |7sound. Colonel Scanlan also explained that gunshot residue goes away very quickly and that washing of the hands would remove it.

Defendant did not call any witnesses at trial.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the following assignments of error: 1) there was insufficient evidence to support a conviction for second degree murder; 2) the trial court erred by not suppressing his statement; and 8) the trial court erred by not allowing evidence of the victim’s bad character to be presented to the jury.

LAW AND ANALYSIS

Sufficiency of Evidence

Defendant argues the evidence supported a conviction for manslaughter and not second degree murder. He contends that the physical evidence indicated this was a crime of rage, and three witnesses described him as being very angry prior to the shooting. Defendant asserts that he lost his ability to reason sensibly when confronted with 1) the knowledge that the woman he loved no longer cared about him and was interested in the victim; 2) the physical and mental abuse the victim inflicted on him prior to the shooting; and 3) his run-in with Officer Urrata prior to the shooting.

The State responds that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of second degree murder were proven beyond a reasonable doubt, and the mitigatory factors for a manslaughter verdict were not established by the defense by a preponderance of the evidence. The State argues that Defendant’s actions were inconsistent with an act of manslaughter, noting that Defendant undertook preparatory acts prior to the shooting, and that over an hour passed between the alleged provocation and the shooting.

|sIn reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In the instant case, Defendant was convicted of second degree murder, which is defined as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1 A(l). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Whether a defendant possessed the requisite intent in a criminal case is a question for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Gonzalez, 07-449 (La.App. 5 Cir. 12/27/07); 975 So.2d 3, 8, writ denied, 08-0228 (La.9/19/08); 992 So.2d 949.

LSA-R.S. 14:81 delineates two theories of manslaughter: specific intent manslaughter and felony/misdemeanor manslaughter. The jury was instructed as to the first theory. Under LSA-R.S. 14:81 A(l), manslaughter is a first or second degree murder that is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. LSA-R.S. 14:31 A(l).

|9In order to be entitled to the lesser verdict of manslaughter, a defendant is required to prove the mitigatory factors by a preponderance of the evidence. State v. Dobbins, 05-342 (La.App. 5 Cir. 12/27/05); 920 So.2d 278, 284. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. State v. Deal, 00-434 (La.11/28/01); 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08); 1 So.3d 516, 523.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97); 694 So.2d 1052, 1056.

In the instant case, we find that a rational trier of fact could have found that the evidence was sufficient to support the second degree murder conviction in that the evidence shows Defendant had the specific intent to kill the victim or to inflict great bodily harm upon him. Ms. Sanders testified that she ended her romantic relationship with Defendant, her live-in boyfriend, after which she became involved with the victim. On the night of the incident, Defendant and Ms. Sanders argued, and then Ms. Sanders went outside and got into a car with the victim. Defendant pulled on the door handle and asked Ms. Sanders to exit the car because he wanted to talk to her. The victim pushed Defendant and told him Ms. Sanders did not have to get out of the car. Defendant walked away and said, “I’m a [sic] kill that b*teh.”

| UlWhen Ms. Sanders, the victim, and Ms. Cloud returned from Burger King, Defendant walked toward the car, but Ms. Cloud pulled it to the back of the street and went inside her apartment. Ms. Sanders and the victim sat in the car for 30 minutes, after which they exited the car and talked, hugged, and kissed. Ms. Sanders testified that she heard something in the bushes, after which Defendant suddenly appeared and shot the victim several times. Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Knight, 09-359 (La.App. 5 Cir. 2/9/10); 34 So.3d 307, 317, writ denied, 10-2444 (La.10/21/11); 73 So.3d 376. The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Gonzalez, 07-449 (La.App. 5 Cir. 12/27/07); 975 So.2d 3, 8, writ denied, 08-0228 (La.9/19/08); 992 So.2d 949.

Additionally, Defendant admitted he shot at least five times, and that he knew he had hit the victim. The autopsy established that the victim sustained multiple gunshot wounds, with bullet entry points occurring at the back of the victim’s head, the left side of his back, his left arm, and the left side of his abdomen. Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Graves, 99-113 (La.App. 5 Cir. 8/31/99); 740 So.2d 814, 816, writ denied, 99-3013 (La.3/31/00); 759 So.2d 68.

Further, we find that the mitigatory factors for manslaughter were not established by a preponderance of the evidence. Contrary to Defendant’s assertions, the evidence does not show that the shooting was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive |nan average person of his self-control and cool reflection. Defendant admitted in his statement that after the victim pushed him, he (Defendant) walked away and was thereafter stopped by the police. Afterward, Defendant traveled to another neighborhood to buy marijuana, after which he changed into dark-colored clothes, went back outside, “crept” up on Ms. Sanders and the victim, and shot the victim. He also admitted that Ms. Sanders and the victim did not see him before the shooting, stating, “[A]nd when I came back I, I was coming, uh, through the cut and I saw him and Dominique right there. And they didn’t see me and I just turned the corner and I shot him.” Defendant explained, “And I crept down on them in the cut and I heard them talking or whatever and I just spent the cut on them.” He recounted, “I came back I was walking through the cut and I can hear them like, I can hear them talking and stuff like that. And I just came from behind the gate and just went to shooting.”

The slight pushing of Defendant by the victim more than one hour before the shooting is not sufficient provocation to deprive an average person of his self-control and cool reflection. However, even if the pushing was sufficient provocation, we find that an average person’s blood would have cooled between the time the victim pushed Defendant and the time he shot the victim. Also, Defendant’s statement that he was going to kill Ms. Sanders indicates that Defendant was already contemplating violence more than one hour before the shooting.

On appeal, Defendant argues that he lost his ability to reason sensibly when confronted with the physical and mental abuse the victim inflicted on him prior to the shooting. In his statement, Defendant said he was afraid of the victim; however, he also indicated that he was angry with the victim for getting involved with his girlfriend, Ms. Sanders. Nevertheless, this Court has found that, although | ^our law may extend some limited indulgence to passion justly excited, it does not indulge revenge. State v. Franklin, 11-216 (La.App. 5 Cir. 12/28/11); 87 So.3d 860, 873.

In light of the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient to support the second degree murder conviction, and the mitigatory factors for manslaughter were not established by a preponderance of the evidence.

Therefore, we do not find the trial court erred on this issue.

Suppression of Statement

Defendant argues that the trial judge erred by denying the motion to suppress his statement. He contends that the statement should have been suppressed because it was the product of inducements (a promise of the possibility of probation), an inability to read, and a lack of understanding. The State responds that the record supports the trial judge’s ruling.

The State has the burden of proving the admissibility of a purported confession or statement by the defendant. LSA-C.Cr.P. art. 708(D). Before an incul-patory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03); 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04); 869 So.2d 817. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the 11sconfession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id.

In reviewing the trial court’s ruling, the evidence presented at trial may be considered in addition to the evidence presented at the hearing on the motion to suppress. State v. Franklin, 03-287, 858 So.2d at 70, citing, State v. Fisher, 97-1133 (La.9/9/98); 720 So.2d 1179, 1182. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. State v. Arias-Chavarria, 10-116 (La.App. 5 Cir. 9/28/10); 49 So.3d 426, 433, writ denied, 10-2432 (La.2/25/11); 58 So.3d 460.

At the suppression hearing, Sergeant Michael Cunningham, an 18-year veteran of the Kenner Police Department, testified that on September 3, 2009, he advised Defendant of his constitutional rights using a standard advice of rights form. He explained that he read the rights to Defendant, after which he asked Defendant questions to determine whether Defendant understood his rights and wanted to waive them. Sergeant Cunningham stated that after he asked each question, Defendant checked off his answer as “yes” or “no” and then initialed next to the answer.

A review of the advice of rights form shows that Defendant was advised of his Miranda rights, and that Defendant checked the “yes” boxes and initialed next to each one after being asked if he understood those rights, if he was willing to answer questions at that time without a lawyer, and if he was waiving his rights and agreeing to make a statement. The form also reflects that Defendant checked the “no” box and initialed next to it when asked if any threats or promises had been made to him to induce him to answer questions or give up his rights. The form was signed by Defendant, indicating that he was advised of his rights, understood those rights, and was willing to waive those rights and give a statement.

| uSergeant Cunningham testified that after Defendant signed the form waiving his rights, he gave a recorded statement confessing to the shooting. Sergeant Cunningham further testified that he did not force, coerce, or threaten Defendant in order to obtain his statement, and that Defendant seemed alert and coherent during the interview. He contended that Defendant was upset and kept saying he was going to go to prison for a long time for “this.” Defendant testified at the suppression hearing that he did not recall either Sergeant Cunningham or Detective Syni-gal asking him if he wanted a lawyer. He explained that the “female detective” told him he could get 40 years to life, and that he could get probation if he started talking. Defendant asserted that the police did not make promises; however, he claimed the police talked about how he would probably get a deal, “like 40 years or probation.” He further claimed that he would not have given a statement if the police had not told him that. Defendant identified his signature and initials on the advice of rights form, but stated that Sergeant Cunningham did not read the form to him and just told him to sign it.

After hearing the testimony, the trial judge denied the motion to suppress the statement, stating:

All right. The court has heard the testimony of the witnesses with regard to the motion to suppress statement. The testimony of Sergeant Cunningham is that he read Miranda rights to the defendant, Brandon Earls; that Brandon Earls initialed by each question and signed the form; that he said he understood his rights and waived those rights.
The Court also heard from Brandon Earls with regard to what occurred that evening. Mr. Earls admitted that he did sign and initial the form. Although he said he could not read, he read from the Rights form during his testimony.
Based upon the testimony of the witnesses, the motion to suppress is denied.

| ^Sergeant Cunningham testified at trial, and his trial testimony regarding the advice of rights and related matters was very similar to his testimony at the suppression hearing. Additionally, Detective Synigal testified at trial, and her testimony corroborated that of Sergeant Cunningham with respect to the matters in question.

After reviewing the testimony from the suppression hearing and trial and the advice of rights form, we find Defendant was advised of his Miranda rights, that he voluntarily and intelligently waived his rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises.

Defendant argues that his waiver of rights was invalid due to his inability to read. However, Sergeant Cunningham testified that he read the rights form to Defendant. Further, when denying the motion, the trial judge noted Defendant read from his rights form during his testimony at the suppression hearing. Defendant also argues that his statement was invalid because it was the product of inducements. However, Sergeant Cunningham testified at the suppression hearing that he did not force, coerce, or threaten Defendant in order to obtain his statement. He also denied that either he or Detective Synigal spoke to Defendant regarding the possibility of him getting probation or a ten to 40-year sentence if Defendant gave a statement. Additionally, Detective Synigal testified at trial that no one used threats or coercion to get Defendant to waive his rights and give a statement, and that no one told Defendant “it would go easy” if he waived his rights and gave a statement.

Therefore, we do not find the trial court erred on this issue.

_Ji¡¡Victim's Bad Character

Defendant argues that the trial judge erred by granting the State’s motion in limine to preclude him from introducing evidence of the victim’s bad character. He contends that the evidence was relevant to show his state of mind at the time of the shooting, thereby allowing the jury to find that he acted in self-defense. Defendant further contends that the trial judge’s ruling prevented him from presenting his defense. The State responds that this claim should be denied because it has previously been considered and rejected by this Court. It further responds that, even if this claim is considered again, it is without merit.

On January 27, 2011, the State gave the victim’s rap sheet to the defense. On March 16, 2011, the State filed a “Motion in Limine to Preclude the Defendant from Referring to the Victim’s Arrest History.” Defendant subsequently filed a “Memorandum in Support of Motion to Introduce Victim Character Evidence” on April 19, 2011. In his memorandum, Defendant sought to introduce the following evidence: 1) the victim threatened Defendant with a handgun three times prior to the shooting in the instant case, and 2) the victim threatened Defendant with a gun and struck Defendant with his fist just prior to the shooting in the instant case.

Also on April 19, 2011, a hearing was held on the State’s motion in limine, after which the trial judge took the matter under advisement. On April 25, 2011, the trial judge granted the State’s motion in limine to preclude the defense from introducing the bad character evidence of the victim. The trial judge stated that he had reviewed the statements of Defendant, Ms. Sanders, and Bianca and Angie Cloud; the autopsy report; the affidavits of Defendant, and Gregory and Deondra Earls; page 9 of the Kenner Police report; the State’s motion; and Defendant’s memorandum; and that he had heard argument from counsel on April 19 and 25, 2011. The trial judge said that after digesting all of this information, he found that |17the alleged acts brought forth by the defense, whereby the victim allegedly threatened Defendant, did not rise to the level of the overt act as contemplated in LSA-C.E. art. 404.

Defendant filed a writ application with this Court challenging the trial judge’s ruling. This Court denied the writ, finding no error in the trial court’s ruling. State v. Earls, 11-K-596 (La.App. 5 Cir. 6/22/11) (unpublished writ disposition). Defendant subsequently filed another writ application with this Court challenging the trial judge’s ruling. This Court denied the writ, finding that nothing had changed that would warrant it reaching a different conclusion. State v. Earls, 11-K-1054 (La.App. 5 Cir. 11/9/11) (unpublished writ disposition).

Under the discretionary principle of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Junior, 542 So.2d 28, 27 (La.App. 5th Cir.1989), writ denied, 546 So.2d 1212 (La.1989); State v. Burciaga, 05-357 (La.App. 5 Cir. 2/27/06); 924 So.2d 1125, 1128. The principle is applicable to all decisions of an appellate court, not solely those arising from a full appeal. State v. Johnson, 06-859 (La.App. 5 Cir. 4/11/07); 957 So.2d 833, 840. One reason for imposition of the doctrine is the avoidance of indefinite re-litigation of the same issue, but it will not be applied in cases of palpable former error. Id. Reconsideration is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03); 861 So.2d 638, 641, writ denied, 03-3401 (La.4/2/04); 869 So.2d 874.

In the instant case, Defendant has failed to cite to any new facts elicited at trial or additional jurisprudence which tends to indicate that this Court’s prior disposition was patently erroneous and produced an unjust result. Therefore, we |isfind the law of the case doctrine applicable to this assignment and refuse to reconsider the previous ruling.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals no errors patent.

DECREE

For the foregoing reasons, we affirm the second degree murder conviction and sentence for Defendant, Brandon D. Earls.

AFFIRMED

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


author: PETERS, J. GENOVESE, J.,

text:
    Beverly LeBOUEF v. Dr. Joseph O’DONNELL, et al.
    No. 12-514.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2012.

      L. Paul Foreman, Raggio, Cappel, Cho-zen & Berniard, Lake Charles, LA, for Defendant/Appellant, Dr. Joseph O’Donnell.
    John Gregory Bergstedt, Fraser, Wheeler & Bergstedt, L.L.P., Lake Charles, LA, for Defendant/Appellee, LAMMICO, Dr. Rachel Chua.
    Randall E. Hart, Broussard & Hart, LLC, Lake Charles, LA, for Plaintiff/Ap-pellee, Beverly LeBouef.
   PETERS, J.

|2The defendant in this medical malpractice, Dr. Joseph O’Donnell, appeals the trial court’s denial of his peremptory exception of prescription. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

On July 2, 2004, the plaintiff, Beverly A. LeBouef, filed a complaint with the Louisiana Patients’ Compensation Fund seeking the appointment of a Medical Review Panel to consider her assertion that Dr. Rachel Chua had committed acts of medical malpractice which caused her damages. Specifically, she stated the following:

Claimant Beverly A. LeBouef asserts that [Dr. Chua] breached the applicable standard of care during a surgical procedure performed at Women and Children’s Hospital in Lake Charles, Louisiana!,] on or about July 18, 2008.
Claimant alleges that the care Dr. Chua gave to Beverly A. LeBouef was below the required standard in that Dr. Chua caused injury to the patient’s bowel which resulted in an infection, and then on July 20, 2003, during an exploratory surgical procedure, Dr. Chua provided substandard care by failing to locate and properly treat the source of the infection.

Ms. LeBouef amended her complaint by a letter dated November 14, 2005, wherein she added Dr. Joseph O’Donnell to the complaint. The specific complaints against both physicians, as amended, stated the following:

As to Dr. Rachel Chua: On or about July 18, 2003, during a hysterectomy on Beverly LeBouef, Dr. Chua caused injury to patient’s bowel which resulted in an infection, and then on July 20, 2003, during an exploratory surgical procedure, Dr. Chua provided substandard care by failing to locate and properly treat the source of the infection.
Additionally or alternatively, Joseph O’Donnell, MD: on July 20, 2003, Dr. O’Donnell provided substandard care by failing to locate and properly treat the source of Ms. LeBouef s infection.

|sThe malpractice action ultimately went to trial commencing on September 7, 2010, with both Dr. Chua and Dr. O’Donnell as defendants. On September 15, 2010, the jury returned a verdict finding no liability on the part of Dr. Chua, but found that Dr. O’Donnell had breached the standard of care required of him in providing medical services to Ms. LeBouef, and that his breach was the proximate cause of her damages. The jury then found that Ms. LeBouefs damages totaled $3,314,801.30. On December 23, 2010, the trial court executed a final judgment in favor of Ms. LeBouef and against Dr. O’Donnell after reducing the jury award to the maximum amount recoverable under La.R.S. 40:1299.42(B). Dr. O’Donnell then appealed the judgment to this court.

Before the merits of the appeal were considered, Dr. O’Donnell filed a peremptory exception of prescription in this court. Ms. LeBouef responded by filing a motion to remand the prescription issue to the trial court for its consideration. By an unpublished opinion rendered on September 14, 2011, and pursuant to La.Code Civ.P. art. 2163, this court remanded the matter to the trial court for its consideration of the exception of prescription. LeBouef v. O’Donnell, 11-921, p. 1 (La.App. 3 Cir. 9/14/11), 72 So.3d 487.

The trial court heard the prescription exception on November 22, 2011, and denied it, finding that the doctrine of contra non valentem applied to the facts herein. Dr. O’Donnell’s appeal of that judgment is the matter now before us.

OPINION

This court, in Leach v. Alonso, 95-325, p. 7 (La.App. 3 Cir. 10/4/95), 663 So.2d 344, 348, writ denied, 95-2662 (La.1/26/96), 666 So.2d 671, explained the doctrine of contra non valentem as follows:

The doctrine of contra non valentem is an exception to the general rules of prescription which means that prescription does not run against a person unable to bring an action or a person who for |4some reason is unable to act. The Louisiana Supreme Court in Corsey v. State Dept. of Corrections, 375 So.2d 1319 (La.1979), recited those situations in which the doctrine may apply to prevent the running of liberative prescription: (1) Where there was some legal cause which prevented the court or its officers from taking cognizance of and acting on the plaintiffs actions; (2) Where there was some condition coupled with the contract or coupled with the proceedings which prevented the creditor from suing or acting; (3) Where the debtor has doné some act effectually to prevent the creditor from availing himself of his cause of action; and (4) Where the cause of action was not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

As noted in Leach, the doctrine has a “jurisprudential” origin. Id. The fourth situation set forth in Leach and originally recognized in Corsey v. State Dep’t of Corrections, 375 So.2d 1319 (La.1979), applies to the matter before us. This situation has been codified for medical malpractice purposes in La.R.S. 9:5628(A), but subject to a peremptive limitation. Louisiana Revised Statutes 9:5628(A) provides in pertinent part that a medical malpractice action shall be “filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.” Both periods are considered prescriptive periods, except that the three year limitation is peremp-tive. Borel v. Young, 07-419 (La.11/27/07), 989 So.2d 42. With regard to what constitutes discovery in a medical malpractice action, the supreme court stated the following in Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510-11:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2 Cir.1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party 15on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051 (La.App. 2 Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550 (La.App. 3 Cir.1983). Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. Griffin v. Kinberger, 507 So.2d 821 (La.1987). The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.

Additionally, the party asserting the exception of prescription bears the burden of proof at the trial of the exception unless prescription is evident on the face of the pleadings, and in that case, the burden shifts to the plaintiff to establish that the action has not prescribed. Id. In the matter now before us, Ms. LeBouef bore the burden of proof in establishing that prescription had not run when she joined Dr. O’Donnell to the litigation.

Ms. LeBouefs pleadings establish that her claim against Dr. O’Donnell arose on July 20, 2003, and that she filed her complaint against Dr. O’Donnell with the Louisiana Patients’ Compensation Fund pursuant to La.R.S. 40:1299.41(E) on November 14, 2005. This was obviously well past the one year prescriptive period, but within the three year prescriptive period of La. R.S. 9:5628(A).

The record before us on the prescription issue consists of excerpts of deposition testimony and testimony taken at the trial on the merits, medical records, responses to pretrial discovery, and stipulations made at the trial on the exception. This evidence establishes that on July 18, 2003, Dr. Chua, a Lake Charles, | (-.Louisiana OB/ GYN physician, performed a hysterectomy surgery on Ms. LeBouef at the Women and Children’s Hospital of Lake Charles. Immediately after the surgery, Ms. Le-Bouef began experiencing physical problems seemingly unrelated to the surgery. Realizing that something went wrong with the hysterectomy, Dr. Chua informed Ms. LeBouef that she needed to perform additional surgery to locate and correct what she suspected was a bowel perforation arising from the first surgery.

The exploratory surgery occurred on July 20, 2003. The caption of the one-page operative report prepared by Dr. Chua after completion of the surgical procedure lists Dr. O’Donnell, a Lake Charles, Louisiana surgeon, as having assisted in the surgery. The report itself makes no reference to the degree of Dr. O’Donnell’s assistance. However, Dr. O’Donnell was much more than a mere assistant in the surgical procedure. Dr. Chua testified in her November 9, 2007 deposition that, not only did she consult with Dr. O’Donnell concerning the proper way to perform the exploratory surgery, but accepted Dr. O’Donnell’s recommendation that a laparo-scopic procedure be used rather than an open abdominal incision. Dr. Chua also acknowledged that she would not have performed such a procedure without the presence and involvement of Dr. O’Donnell in the operating theater. In fact, according to Dr. Chua, it was Dr. O’Donnell who actually examined the intestines during the procedure. When Dr. Chua reported the results of the second surgery to Ms. Le-Bouef, she made no mention of Dr. O’Donnell’s participation in the procedure and only informed her patient that the surgery was unsuccessful in finding the cause of her current problems.

Soon after the second surgery, Ms. Le-Bouef was transferred to Christus St. Patrick Hospital of Lake Charles where she came under the care of Dr. Richard |7Shimer, a surgeon and, incidentally, Dr. O’Donnell’s partner. Dr. Shimer immediately performed a colon study which pinpointed the existing bowel perforation. Based on this colon study, Dr. Shimer performed a third surgery on July 25, 2003, and repaired the perforation. Ms. LeBouef remained under the care of Dr. Shimer and underwent a number of additional surgeries during her recovery process.

Ms. LeBouef asserts that, given her long recovery process, she did not become aware she might have a medical malpractice claim until the Spring of 2004 when she first saw the words “bowel perforation” in some of her medical records. After two other individuals suggested that she seek legal advice, she contacted her current legal representative on June 10, 2004. On June 24, 2004, her attorney obtained a certified copy of the medical records from the Women and Children’s Hospital. Within a few days thereafter, on July 2, 2004, Ms. LeBouef filed a request for a medical review panel with Dr. Chua as the only named defendant.

By early September of 2004, Ms. Le-Bouef had retained Dr. Steven Cruikshank, a gynecological surgery expert, to assist her in her claim. On September 24, 2004, Ms. LeBouefs attorney mailed a copy of the Women and Children’s Hospital medical records to Dr. Cruikshank for his review. Dr. Cruikshank found nothing in the medical records provided to him that suggested any act of malpractice by Dr. O’Donnell. According to Dr. Cruikshank, nothing in the medical records of Women and Children’s Hospital caused him to suspect that Dr. O’Donnell had chosen the surgical approach or had taken a direct part in the operative procedure. He suggested as a minimum, the medical records should have contained a separate operative note dictated by Dr. O’Donnell confirming his direct participation.

Ut was not until Ms. LeBouef s attorney took Dr. Chua’s deposition on November 9, 2005, that she became aware of the extent of Dr. O’Donnell’s involvement in the second surgery. Five days later, on November 14, 2005, Ms. LeBouef amended her medical review panel request by adding Dr. O’Donnell as a defendant.

In arguing that the trial court erred in not granting his exception of prescription, Dr. O’Donnell first asserts that prescription began at the earliest in the Spring of 2004 when Ms. LeBouef saw the bowel perforation notation in her medical records, and at the latest in September of 2004 when Dr. Cruikshank examined the medical records from Women and Children’s Hospital. That is to say, Ms. Le-Bouef, in either situation, had sufficient notice to excite her attention and put her on guard to such an extent as to require her to make an additional inquiry and investigate further. Campo, 828 So.2d at 510. Had she made further inquiry, Dr. O’Donnell asserts, she would have discovered his direct involvement in the July 20, 2003 surgery in sufficient time to avoid her claim prescribing. He further argues that the trial court erred in not ruling on its objection to the relevancy of Dr. Cruikshank’s testimony.

At the trial on the exception of prescription, Dr. O’Donnell did not object to the content of Dr. Cruikshank’s stipulated testimony. Instead, he argued that it should not have been allowed because his expert opinion was irrelevant to the issue of prescription. In support of this argument, Dr. O’Donnell relies on this court’s holding in Anderson v. Beauregard Memorial Hosp., 97-1222 (La.App. 3 Cir. 3/6/98), 709 So.2d 283. We find the holding in Anderson to be distinguishable from the matter before us.

In Anderson, the expert at issue attempted to testify concerning the type of information the plaintiff should have been provided concerning her medical [ ¡¡situation and how that information should have been communicated to her. In affirming the trial court’s rejection of that testimony, this court stated:

We agree with the trial court that on the issue of prescription Dr. Kamm’s expert testimony was not necessary. The trial court had to determine when Paula discovered that she was infected with hepatitis C which could have resulted from the 1974 blood transfusion. This was a fact question. Dr. Kamm never treated her and had no knowledge of when she learned she had hepatitis C. How Paula should have been notified has no relation to when she actually discovered she was infected and, therefore, has no bearing on whether the Andersons’ claims were prescribed. Dr. Kamm’s testimony might have been relevant to other aspects of the case but not to prescription.

Id. at 287.

In rejecting the testimony in Anderson, this court also noted that La. Code Evid. art. 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Additionally, “[t]he decision of whether to accept a witness as an expert in trial is one left to the much discretion of the trial court.” Anderson, 709 So.2d at 287.

In the matter now before us, the issue crucial to Dr. O’Donnell’s argument that the trial court erred in not granting his exception of prescription is that it was clear on the face of the medical records that a claim against Dr. O’Donnell should have been investigated upon first receipt of those records. Dr. Cruikshank’s testimony only addressed what those records did or did not reveal to him in his review. This was specialized knowledge helpful to the trier of fact in understanding the evidence and in determining a fact at issue. We find no abuse of discretion in the trial court’s decision to allow Dr. Cruikshank’s stipulated testimony on this issue.

11ftAdditionally, we find no merit in Dr. O’Donnell’s argument that the trial court erred in denying his exception of prescription. Ms. LeBouef timely acted on her suspicions derived from her evaluation of the medical records in the Spring of 2004. Within weeks of consulting an attorney thereafter, she filed her July 2, 2004 claim against Dr. Chua. We have nothing in the record now before us concerning the response by Dr. Chua to the claim filed against her, but must conclude that she made no effort in her response to point out Dr. O’Donnell’s involvement in the July 20, 2003 surgery. Absent any other information at the time, Dr. Cruikshank found nothing in his evaluation of the claim to suggest that anyone than Dr. Chua had any potential liability.

While discovery did take a slow pace in this litigation, there is evidence that Dr. Chua’s deposition had been scheduled at least once before the November 7, 2005 deposition, and seven days after taking that deposition, Ms. LeBouef joined Dr. O’Donnell as a defendant in the legal proceedings. At this point, the matter was still pending before the medical review panel.

In argument before the trial court, Ms. LeBouefs attorney recalled the catastrophic situation in South Louisiana resulting from Hurricanes Katrina and Rita which struck that area in September of 2005. These storms caused damage to courthouses as well as law offices within the area to the extent that the Governor of the State of Louisiana issued three separate executive orders (Executive Order Numbers KBB 2005-32, KBB 2005-48, and KBB 2005-67) suspending prescription, preemption and other deadlines from Monday, August 29, 2005, through Friday, November 25, 2005. While these Executive Orders had no effect on the prescription issue, the damage caused by the hurricanes certainly impeded the legal process.

_|_yFinally, Ms. LeBouef noted that to require her to name Dr. O’Donnell as a defendant simply because his name appeared on a medical record would create problematic public policy in that it would require a plaintiff to file suit against everyone even peripherally associated with a procedure. To deny a plaintiff the right to rely on the content of a medical record and require a blanket filing requirement would be burdensome to both the plaintiff and those without liability who nonetheless must be named in order to satisfy this requirement. Ms. LeBouef also alludes to the fact that such a requirement could inadvertently facilitate manipulation of the justice system by an offending physician, who could simply couch medical records in such a manner as to hide his or her malpractice until prescription has run.

The trial court’s determination on this issue is fact intensive, and the scope of review for the trial court’s factual findings has long been established.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Additionally, Louisiana jurisprudence provides that when evaluating a statutorily established prescription right, the rule is strictly construed against the mover of the exception. Taranto v. La. Citizens Prop. Ins. Corp., 10-105 (La.3/15/11), 62 So.3d 721.

| ^DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment denying the exception of prescription filed by Dr. Joseph O’Donnell. We assess all costs of this appeal to Dr. O’Donnell.

AFFIRMED.

GENOVESE, J., dissents and assigns written reasons.

GREMILLION, J., dissents for the reasons assigned by Judge GENOVESE.

GENOVESE, J.,

dissents and assigns the following reasons.

Lin this medical malpractice case, an adjudged non-joint tortfeasor, Dr. O’Donnell, filed an exception of prescription while this case was on appeal from a jury verdict finding him 100% at fault , on the basis that he was not timely sued after Ms. LeBouefs hysterectomy surgery resulted in a perforation of her bowel. We remanded the exception of prescription to the trial court for consideration and a ruling on the exception. The trial court found the doctrine of contra non valentem applicable and denied Defendant O’Donnell’s exception of prescription. Dr. O’Donnell appealed.

It is factually undisputed that Ms. Le-Bouef underwent a laparoscopic hysterectomy on July 18, 2003, by Dr. Chua. Ms. LeBouef experienced complications (a suspected bowel perforation), and thus another surgery was performed on July 20, 2003, again by Dr. Chua, but assisted by Dr. O’Donnell. No evidence of bowel perforation was found, but complications persisted. Hence, on July 25, 2003, a third surgery was performed, and it was performed by a Dr. Shimer.

Ms. LeBouef testified that she decided to pursue a medical malpractice claim “in the Spring of 2004.” She contacted an attorney on or about June 10, 2004. Her attorney obtained her medical records on June 23, 2004. Dr. Chua was Issued on July 1, 2004, alleging malpractice as a result of the July 18 and 20, 2003 surgeries.

In September of 2004, Ms. LeBouefs attorney hired a medical expert, Dr. Cruikshank. Dr. O’Donnell was not sued until November 1, 2005.

Thus, Ms. LeBouefs action against Dr. O’Donnell is prescribed “on its face”; therefore, she bears the burden of proving that her case has not prescribed. This, she failed to do. The jury found no liability on the part of Dr. Chua and found Dr. O’Donnell 100% at fault; hence, there is no interruption of prescription since there was no joint liability. Dr. O’Donnell was the only person found at fault, and his fault was found by the jury to be 100%.

The facts are that Ms. LeBouef failed to sue Dr. O’Donnell for some seventeen months after hiring an attorney and some fourteen months after hiring a medical expert. She had to have two additional surgeries within five days of the first surgery. Obviously, she was aware that something went wrong. A laparoscopic hysterectomy does not require three surgeries.

The jurisprudence states that “[prescription in a medical malpractice action commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510. “Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead.” Id. at 510-11.

In the case at bar, at least by the time Ms. LeBouef had hired an attorney, obtained her medical records, and her attorney had hired a medical expert, surely she had constructive knowledge of a tort (medical malpractice). Maybe she didn’t know precisely which physician was responsible for the medical malpractice, but even with three surgeries, it could have only been |sone or more of only four doctors. The issue is was it reasonable for Ms. LeBouef to only sue one physician. I think not. Having known of the perforation of her bowel as a result of having three surgeries for a routine laparoscopic hysterectomy, any reasonable person (going through such an ordeal), without a doubt, would or should have sued all surgeons involved in all three surgeries. A simple reading of the medical records would have revealed all of the surgeons involved, whether assisting or acting alone. Plaintiff only sued one of her four surgeons. Additionally, she failed to implement adequate discovery after suing Dr. Chua in order to adequately determine which surgeon or surgeons was/were at fault in perforating her bowel. In summary, she failed to make any reasonable inquiry in the matter.

I disagree with the majority opinion in this case. In my view, this case has prescribed according to La.R.S. 9:5628(A). I would reverse the trial court and grant Dr. O’Donnell’s exception of prescription.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Alton GRAYSON.
    No. 12-KA-563.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jody Fortunato, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2Pefendant, Alton Grayson, challenges the trial court’s denial of his motion to quash the bill of information. For the reasons which follow, we find no abuse of discretion in the trial court’s ruling.

STATEMENT OF THE CASE

On September 26, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with aggravated flight from an officer, in violation of LSA-R.S. 14:108.1(C). The bill specifically alleged that defendant “did intentionally refuse to bring a vehicle to a stop, under circumstances wherein human life was endangered, knowing he had been given a visual and audible signal to stop by Deputy Aaron Savoie when the officer had reasonable grounds to believe that Alton Grayson had committed an offense.” At his October 11, 2011 arraignment, defendant pled not guilty.

On November 30, 2011, defendant filed a motion to permit independent print analysis of the vehicle he was allegedly driving at the time of the offense. In 13the motion, defendant requested that William Bailey, the fingerprint expert he hired, be permitted to examine any and all latent prints lifted in connection with this case and to review any analysis performed on those prints, including crime lab reports, bench notes, and charts. Defendant further requested that the seized vehicle be made available to his expert to conduct independent fingerprint lifting and analysis. On December 1, 2011, the trial court granted defendant’s motion. Over two months later, the defense expert went to the Kenner Police Department to examine the vehicle. At that time, the defense expert was advised that the car was no longer in the possession of the police department. Defense counsel subsequently learned that the vehicle had been turned over to a private company that sold the car to an unknown third party on December 16, 2011.

Thereafter, on February 17, 2012, defendant filed a motion to quash the bill of information alleging that the State destroyed exculpatory evidence which could have proved that he was not the driver of the vehicle. Defendant further alleged that the State acted in bad faith and in violation of a court order when it failed to preserve the vehicle for fingerprint analysis.

The trial court conducted a hearing on the motion to quash on March 12, 2012. At the hearing, defendant re-urged the arguments presented in his motion to quash, adding that there was no information that the Kenner Police Department could provide regarding the areas of the vehicle dusted for fingerprints, and that the only fingerprints provided were two partial prints taken from the front and rear license plates.

In response to defendant’s arguments at the hearing, the State responded that the vehicle was dusted twice for fingerprints, once at the scene of the incident on September 1, 2011, and then four days later at the Kenner Police Department. At that time, the Kenner Police Department rendered a report stating that no usable Uprints were recovered. The State also acknowledged receiving the December 1, 2011 court order, which was not served on the Kenner Police Department. Thus, two weeks after the order, the vehicle was sold in accordance with Louisiana law governing wrecker services. At the hearing, the State further brought to the judge’s attention that the defense expert waited five months after the incident to attempt to conduct testing on the vehicle and further mentioned that the trial court never ordered the preservation of the vehicle, and only ordered that the vehicle be made “available for testing.”

After verifying from the State that no reports had been destroyed, the trial court denied defendant’s motion to quash finding a lack of bad faith. The trial court noted that if the Kenner Police Department was not served with the order, and thus did not know of its existence, it could not have acted in bad faith when it sold the vehicle two weeks after the order was issued.

Following the denial of his motion to quash, defendant, on March 13, 2012, withdrew his prior not guilty plea and entered a plea of no contest under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Pursuant to the plea agreement, the trial court sentenced defendant to two years in the Department of Corrections. On the same date, the State filed a multiple offender bill of information, alleging that defendant was a second felony offender under the provisions of LSA-R.S. 15:529.1. After defendant was advised of his rights and admitted to allegations contained in the multiple offender bill, the trial court vacated defendant’s original sentence, and imposed an enhanced sentence of two |5years imprisonment at hard labor, without the benefit of probation or suspension of sentence. Defendant now appeals.

LAW AND ANALYSIS

In his sole assignment of error, defendant contends that the trial court erred in denying his motion to quash based on its finding that there was no bad faith on the part of the State. On appeal, defendant argues that the State did, in fact, act in bad faith when it failed to notify the Kenner Police Department of the trial court’s order to preserve the vehicle for independent fingerprint testing by his expert. Defendant asserts that because the Kenner Police Department was never notified of the order, the vehicle was sold; thus, any possibility of finding fingerprint evidence to exonerate defendant as the driver of the vehicle was destroyed. For the reasons that follow, we find no merit to defendant’s arguments.

Due process requires that the State provide a defendant with any exculpatory evidence in its possession which is material to defendant’s guilt or punishment, regardless of the good faith or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Where a defendant claims that his due process rights have been violated due to the State’s failure to preserve potentially useful evidence, the defendant has the burden of showing that the State acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 378. In California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the United States Supreme Court explained:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s |fidefense. To meet this standard of constitutional materiality, ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

In State v. Horton, supra, the defendant argued that he was denied the right to a fair trial because the State suppressed Brady evidence through its mishandling and ultimate destruction of exculpatory evidence. He specifically maintained that he was denied the ability to test the evidence, namely the car and a letter found within the car, for DNA and fingerprint evidence, which would have led to the true perpetrator and exonerated him. In rejecting the defendant’s arguments, this Court found that the defendant did not allege bad faith on the part of the State in the destruction of evidence, and that the defendant failed to show that the car or the letter had apparent exculpatory value. As such, this Court concluded that the defendant had not shown that his due process rights were violated or that he was denied the right to a fair trial.

In State v. Schexnayder, 96-98 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, 365-366, writ denied, 97-0067 (La.5/16/97), 693 So.2d 796, cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997), the defendant argued, on appeal, that the trial court erred in denying his motion to quash based on the State’s destruction of exculpatory evidence. Specifically, he complained that the State destroyed his automobile, impounded by police at the time of his arrest, and further complained that the State failed to take photographs of the car prior to its destruction. He argued that without the car or photographs of the car, he was deprived of the opportunity to impeach State witnesses. In rejecting these arguments, this Court found that the defendant did not offer sufficient proof that the State acted in bad faith in destroying the car. This Court noted that the police department was not in possession of the automobile at the time it was destroyed, and it was not standard |7pro ce dure to photograph a vehicle before sending it to a wrecking company. This Court further concluded that the defendant failed to show that the car had exculpatory value that was apparent prior to its destruction. In reaching this determination, the Court rejected the defendant’s argument that he could have used the car at trial to impeach the witness’s identification testimony and noted that the witness made a positive identification of both the defendant and the automobile shortly after the murder and also made an in-court identification of the defendant.

Also, in State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, 1253, n. 31, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), the Louisiana Supreme Court found no merit to the defendant’s argument that his due process rights were violated when DNA evidence was destroyed and he was prevented from testing it. The Court noted that the defendant did not allege bad faith on the part of the State in the evidence’s destruction and further noted that the destruction of the DNA samples “allowed defense counsel to criticize the police’s investigation of the crime and cast doubt on the police’s handling of the entire case.”

Based on our review of the law and similar cases, we find that the trial court did not abuse its discretion in denying defendant’s motion to quash. In this case, defendant failed to show that the State acted in bad faith in failing to preserve the vehicle. The State was not in possession of the vehicle and did not destroy the vehicle. In addition, as noted by the trial court in its ruling, the Kenner Police Department was not served with the court order and did not know of its existence; thus, it could not have acted in bad faith when selling the vehicle two weeks after the order was issued.

Moreover, the exculpatory value of the fingerprints that may have been recovered from the vehicle was not apparent before the vehicle was sold. At the | shearing on the motion to quash, the State established that the vehicle was dusted twice for fingerprints, once at the scene of the incident on September 1, 2011, and then four days later at the Kenner Police Department. At that time, the Kenner Police Department rendered a report stating that no usable prints were recovered. Also, it was not until five months after the incident that the defense expert attempted to conduct testing on the vehicle. Most importantly, the police report’s probable cause affidavit indicated that “Alton Grayson was observed [by Officer Savoie] as the operator of a motor vehicle which was stopped ... and then began fleeing at a high rate of speed.”

Given these circumstances, we find that defendant failed to prove that the State acted in bad faith in failing to preserve the vehicle in question. Further, defendant failed to show that the vehicle possessed any exculpatory value before it was sold. Accordingly, we find no abuse of discretion in the trial court’s denial of defendant’s motion to quash.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 812 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals one error that requires correction.

The transcript indicates that defendant’s multiple offender sentence was imposed “without the benefit of suspension of sentence or probation.” However, the eommitment/minute entry indicates that defendant’s multiple offender sentence was to be served “with benefits of probation or suspension of sentence.” Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Additionally, any sentence imposed pursuant to the Habitual Offender Law shall be at hard labor |9without benefit of probation or suspension of sentence. See LSA-R.S. 15:529.1(G). Accordingly, we remand the case to the trial court to amend and correct the eommitment/minute entry to conform to the sentencing transcript regarding the restriction of benefits. We further direct the clerk of court to transmit the original of the amended commitment/minute entry to the officer in charge of the institution to which defendant has been sentenced as well as to the Louisiana Department of Public Safety and Corrections’ general counsel. State v. Collins, 09-283 (La.App. 5 Cir. 12/8/09), 30 So.3d 72, 88, writ denied, 10-34 (La.9/3/10), 44 So.3d 696.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter with instructions to correct the commitment/minute entry.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Defendant also entered his plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to appeal the trial court’s denial of his motion to quash.

      . Also, on March 13, 2012, defendant pled guilty to several misdemeanors. The court ordered that the misdemeanor sentences run concurrently with each other and with the two-year enhanced sentence.


text:
    Dewayne H. MORRIS v. LOUISIANA MACHINERY COMPANY, LLC, and Travelers Property Casualty Company of America.
    No. 12-CA-222.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 2012.

      George J. Nalley, Jr., Dona J. Dew, Attorneys at Law, Metairie, LA, for Plain-tifffAppellee.
    Thomas J. Eppling, Sara P. Scurlock, Attorneys at Law, Metairie, LA, for Defendants/Appellants.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

|aThe employer, Louisiana Machinery Company, L.L.C. (hereinafter referred to as “LM”), and its workers’ compensation insurer, Travelers Property Casualty Company of America (hereinafter referred to as “Travelers”), appeal from the decision of the workers’ compensation court that reinstated indemnity and medical benefits to claimant, Dewayne Morris. Claimant Morris answers the appeal and alleges the workers’ compensation court erred in failing to award penalties and attorney fees for arbitrary and capricious failure to pay. Morris also seeks additional attorney fees alleging that this appeal is frivolous. For the reasons that follow, we affirm the decision of the workers’ compensation court. In addition, we find Morris’s answer to be meritless.

FACTS AND PROCEDURAL HISTORY

The facts adduced at the trial of this matter are as follows: Claimant Morris worked for LM on a fourteen day on/fourteen day off rotation. His first day of employment was September 19, 2008. On day nine of his first rotation, Morris fell from an excavator approximately four feet and landed on the concrete floor, after | flipping on a rubber mat that had been rolled up and placed on the track of the excavator the previous evening. As a result of the fall, Morris injured his knee.

Travelers paid benefits from October 4, 2008 to November 13, 2008 and from January 28, 2009 to December 1, 2009. Thereafter, Travelers terminated Morris’s benefits. On December 23, 2009, Morris filed this suit.

In this proceeding, Morris alleged that he suffered a knee injury as a result of the fall. Morris further alleged that his knee was not adequately treated and, therefore, became unstable. Approximately one year later, Morris fell and suffered a back injury. He contends that his fall and subsequent back injury were caused by his unstable knee and therefore this injury was also related to his work related accident in September of 2008.

Relative to his knee injury, Morris was transported to and treated at the local emergency room on the day of the accident. An x-ray showed no bony abnormalities. It was recommended that he seek a follow-up appointment with an orthopedist. Because he was a Mississippi resident, Morris began treatment with Dr. Martin in Mississippi. Morris’s first visit to Dr. Martin was on September 30, 2008. Dr. Martin reviewed his x-ray and ordered an MRI. Dr. Martin recommended a knee immobilizer and advised that Morris should remain out of work. The results of the MRI were inconclusive but indicated the possibility of a ligament strain or tear. Morris chose to receive conservative treatment and was ordered to use crutches and a knee brace. On Morris’s October 10th visit, Dr. Martin reassigned the knee immobilizer and crutches. Morris was released to light duty, seated work only.

On his October 28, 2008 visit, Morris stated that he wanted to get back to work. Dr. Martin prescribed a knee brace with hinges. Morris returned to work on ^November 5, 2008. He was squatting and taking bolts out of a piece of machinery, when his knee locked up. Morris testified that he kept working, and he was “taking it as easy” as he could. Dr. Martin prescribed continued use of the knee brace at Morris’s December 2nd visit and recommended that Morris increase his activity.

In early January, Morris was transferred to Morgan City. The work involved boats and working in tight areas with a lot of bending, stooping and squatting. Morris testified that he was unable to do the movements required. Morris testified that his last day at work was January 21, 2009.

Morris’s next appointment with Dr. Martin was on January 23, 2009. At that visit, Morris reported that he had pain upon squatting and knee pops. Dr. Martin told him that these symptoms were consistent with a medial meniscus tear, and he recommended that Morris undergo arthroscopic surgery.

Dr. Martin performed Morris’s knee surgery on February 2, 2009, and Morris began physical therapy. Morris stated that, at the end of February, he was still having issues with his knee giving way and random pain. Morris testified that on his February 26th visit to Dr. Martin, he requested that another MRI be done; however, his request was not approved.

Morris’s next doctor visit was on March 26, 2009. He indicated that he was still in pain. Physical therapy was continued. Dr. Martin released Morris to modified, sedentary work duty. In his April 16, 2009 visit, Dr. Martin noted that Morris had continued complaints of left knee pain. Dr. Martin also noted in his records that one of his staff members had observed an advertisement for grass mowing services, giving Morris’s name and telephone number.

IfiDr. Martin also sent Morris for a Functional Capacity Examination (FCE). After receiving the results of the FCE on May 8, 2009, Dr. Martin noted in his record that the results of the FCE indicated light level work, and Morris exhibited self-limiting behavior. Dr. Martin maintained his work release recommendation of modified duty. Dr. Martin also expressed that he felt that Morris had reached maximum medical improvement.

Morris testified that once he received the results of the FCE stating that he was capable of light level work, he contacted LM. LM told him, however, that he needed to be able to perform full duty in order to return to work. In July of 2009, Morris received a termination letter from LM due to six months of continuous disability.

On June 29, 2009, Travelers sent Morris to Dr. Thomas Blake, an orthopedist, for an Independent Medical Exam (IME). Dr. Blake opined that Morris had either a second meniscus tear or an incomplete resection of the initial tear, and he recommended that a second MRI be performed. Dr. Blake also concluded that the medical documentation supported a causal relationship between the accident and the injury. Dr. Blake did not give the results of his evaluation to Morris. In addition, Travelers did not give its approval for the second MRI.

In July of 2009, Travelers spoke with Dr. Martin, and requested that he explain the results of the IME to Morris. According to Dr. Martin’s notes, he told Travelers that he did not feel comfortable giving Morris the results, and he did not inform Morris that a second MRI was recommended by Dr. Blake. Dr. Martin did recommend that Morris be sent for a second opinion. At trial, Morris confirmed that he was not informed of the results of Dr. Blake’s examination by either Dr. Blake or Dr. Martin, nor was he informed by Travelers.

| (¡Morris’s last visit to Dr. Martin was in September of 2009. At the time, Dr. Martin gave him a cortisone shot in his knee and ordered more physical therapy. Dr. Martin did not recommend a second MRI; however, he again stated in his notes that Morris should get a second opinion.

At some point after Dr. Martin’s discovery of the advertisement for lawn mowing services, Travelers set up surveillance of Morris. Several tapes were recorded showing Morris walking and setting up a fruit stand, carrying watermelons, and riding a lawn mower. Travelers sent copies of portions of the surveillance tapes to Dr. Martin. In August of 2009, Dr. Martin informed Travelers that he believed that Morris was trying to manipulate the system.

Relative to his back injury, on November 11, 2009, Morris was walking in his back yard when his knee gave out, causing him to fall down an embankment. Morris testified that he spent a couple of days in pain and then went to the emergency room at University Medical Hospital in Jackson, Mississippi. He was given an x-ray and a CT scan. The doctor opined that Morris possibly had a herniated disc (disc extrusion). The doctor prescribed pain medication and physical therapy. A second MRI on March 10, 2010 showed disc degeneration, spurring and disc extrusions at L-2 through S-l. A nerve conduction study was performed on May 4, .2010 and yielded normal results. An EMG on May 11, 2010 was likewise normal. It was recommended that Morris follow-up for his knee and then return for future treatment after resolution of his knee problems.

Morris testified he was seen by Dr. Craft, a sports orthopedist, to follow up with his knee problem. An MRI of his knee on June 8, 2010 suggested a meniscus tear. On August 27, 2010, Dr. Craft performed a second surgery. After physical therapy, Morris testified he had no more pain and no more falls. Physical therapy notes after the surgery reflected that Morris told thé therapist that his knee pain had |7resolved. In his deposition, Dr. Craft stated that the meniscus tear was the cause of his knee problems and was most likely related to the initial injury.

Trial was held on January 6, 7, 10 and 11 of 2011. At trial, Morris stated that he had an appointment in February with Dr. Walker, a spine specialist. At the time of trial, he no longer had problems with his knee, but he continued to experience back pain. Testimony at trial was adduced to show that in 2007, several years prior to his start of employment with LM, Morris had started both a lawn service and a fruit stand to sell extra produce that he grew. He participated in these businesses with his two sons, who were teenagers at the time. Morris and his sons testified that when he obtained the job with LM, the sons took over both businesses, performing the required jobs in their entirety. It was also attested that the sons received the monies earned from those jobs.

On cross-examination, Morris was questioned extensively about the lawn mowing and vegetable stand businesses. He and his sons testified that although the monies were paid by checks written out to him or his wife, they were earned by and went to the needs of his sons. LM called attention to the fact that the lawn business was in his name and listed his phone number, The sons explained that it was easier to keep the business that way, since they were in school and could not answer the phone during the day.

When asked if he had committed fraud to collect workers’ compensation, Morris responded that his primary goal has always been to get back to work, and that he does not receive enough from wage benefits to pay his bills.

Alberta Gardner was the insurance adjuster for Travelers who handled Morris’s case. She testified that there was no dispute that the accident occurred, and Morris was in the course and scope of his employment at the time. She further testified that indemnity benefits were paid to Morris until December 2, 2009. The Isdecision to terminate benefits was made after a Travelers’ nurse evaluated the record of Morris’s claim. It appears that the decision was based on the surveillance tapes made by Travelers and Dr. Martin’s opinion that Morris was trying to manipulate the system.

Dr. Martin testified that he arrived at his determination of Morris’s motivation based on his observation of the surveillance; his discoveiy of the advertisement for grass cutting with Morris’s name and telephone number; and Morris’s self-limiting behavior on the FCE. On cross-examination, Dr. Martin admitted that pain and fear of re-injury were two reasons why a person might self-limit behavior during an FCE.

LAW AND ANALYSIS

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 11-1797 (La.5/8/12); 93 So.3d 536, reh. denied, (La.6/29/12). In Richert v. Schindler Elevator Corp., 11-1099 (La.App. 5 Cir 6/28/12); 97 So.3d 487 we reiterated the well-settled rule that

... a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. However, where documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. (Citations omitted).

The workers’ compensation laws Provide coverage to an emPloyee for Per‘ sonal by accident “⅜ out of and in the course of employment. LSA-R.S. 23.1031(A). An employee must prove the chain of causation required by the _J¿workers compensation statutory scheme, by establishing that the accident was work-related, that the accident caused the injury, and that the injury caused the disability. Dragon Exp. v. Chesser, 09-1041 (La.App. 5 Cir. 5/25/10); 40 So.3d 1030, 1033, writ denied, 10-1477 (La.10/1/10); 45 So.3d 1101. A workers’ compensation claimant first has the burden of establishing that an aecident occurred on the job and that he sustained an injury, and then he must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. Id. Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. Id.

Appellants first contend that the workers’ compensation court erred in finding that both knee surgeries were causally related to the September 2008 accident, and the trial court erred in finding that Morris suffered two herniated discs as a result of his knee giving way prior to the second knee surgery. They further contend that the trial court erred in finding that Morris was entitled to continued and indefinite supplemental benefits as a result of his back injury.

We have reviewed the entirety of the evidence presented at trial and conclude that a rational trier of fact could have found that Morris suffered a knee injury as a result of his fall, and that the knee injury was not totally repaired by Dr. Martin’s first surgery. Morris was unwavering in relating that his knee was not completely healed after the first surgery and that he continued to have difficulty until the second surgery. He was also unwavering in his testimony that he fell and injured his back as a result of his knee “locking up.” The trial court, in its judgment, said that it found the claimant and his witnesses totally credible. We cannot say that this finding was manifestly erroneous.

|,nIn their next allegation of error, Appellants claim that the trial court erred by failing to find that Morris had violated LSA-R.S. 23:1208 by willfully making a false statement or representation for the purpose of obtaining workers’ compensation benefits and dismissing their recon-vention demand.

The Workers’ Compensation Act imposes penalties for willfully making a false representation in connection with a compensation claim. LSA-R.S. 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

LSA-R.S. 23:1208 authorizes forfeiture of benefits upon proof that: 1) there is a false statement or representation; 2) it is willfully made; and 3) it is made for the purpose of obtaining or defeating any benefit or payment. The party who requests that the benefits be forfeited must show that the employee’s statements were not only false, but they must also show that the statements or misrepresentations were willful and deliberately done with the intent to obtain benefits. Faulkner v. Better Services, Inc., 10-867 (La.App. 5 Cir. 5/24/11); 67 So.3d 646, 656-657.

Appellants present the same arguments and point to the same evidence they cited to support their allegations that the trial court erred in finding Morris was still eligible to collect benefits; namely, Dr. Martin’s opinion that Morris was malingering, the surveillance videos that showed Morris assisting at the fruit stand and riding a lawn mower, and the evidence that allegedly supported LM’s contention that Morris was operating a lawn service business. However, as Indiscussed above, the trial judge could have found that Dr. Martin’s conclusions were not supported by the evidence and apparently found Morris’s statements more credible concerning the fruit stand and the lawn mowing business. We find no manifest error in the trial court’s decisions concerning this matter. Likewise, we find that the trial court did not commit manifest error in determining that Morris did not make false statements for the purpose of collecting benefits and, therefore, did not forfeit his entitlement to these benefits.

Lastly, Appellants argues that the trial court erred in assessing a penalty of $250.00 and attorney fees of $2,500.00 for its failure to timely provide Morris with the medical report of his Independent Medical Examination.

LSA-R.S. 28:1125 states:

A. Whenever an employee who is being treated by his choice of medical provider shall, at the request of the employer, the employer’s insurer, or the representative of the employer or its insurer, submit to any type of medical examination and a medical report is received by said requester, such employee or his representative shall be entitled to a copy of the written report of the results of said examination within thirty days from the date the requester receives the report.
B. Whenever an employee has accepted medical treatment by a health care provider referred by the employer, the employer’s insurer, or the representative of the employer or its insurer, he shall be entitled to receive a copy of any medical records of the medical provider that are in the possession of the employer or its insurer within thirty days from the date of the written demand upon the employer, the employer’s insurer, or the representative of the employer or its insurer.
C.Such written report or records shall be furnished to said employee or his representative at no cost to the employee. Any employer who without just cause fails to furnish such report or records to an employee so requesting same within the thirty-day period provided for above shall be liable to the employee for a civil penalty in the amount of two hundred fifty dollars, plus reasonable attorney fees for the collection of such penalty.

Appellánts allege that when the IME report of Dr. Blake was received, it was forwarded to Morris’s treating physician, and therefore they were in compliance with the statute. However, the statute provides that the report shall be forwarded to |12the employee, not his physician. In addition, Dr. Martin testified that he did not give the report to Morris, and that he informed Travelers that he did not feel comfortable discussing another physician’s report. Accordingly, we find no error in the trial court’s determination that defendant violated the provisions of LSA-R.S. 23:1125.

Appellants also allege that the penalty awarded was in excess of the statute. However, the trial court judgment awards $250.00 in penalties and $2,500.00 in attorney fees and not $2,500.00 in penalties as claimed by Appellants. We find no error in this ruling of the trial court.

In his answer, Morris alleges that the trial court erred in finding that the claims were reasonably controverted and in finding that the employer was not arbitrary and capricious in its failure to pay indemnity and medical benefits.

LSA-R.S. 23:1201 determines whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. LSA-R.S. 23:1201(F)(2), however, provides that such penalties and attorney fees for failure to pay timely “shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.”

In order to reasonably controvert a claim, the employer must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under LSA-R.S. 28:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time it refused to pay all or part of the benefits allegedly owed. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98); 721 So.2d 885, 890; Faulkner, 10-867; 67 So.3d at 658.

In this case, the trial judge failed to assess penalties and attorney fees, stating “Defendant is not found to have been ‘arbitrary or capricious’ or ‘without probably cause’ in its termination of claimant’s workers’ compensation benefits.” LM and Travelers made their determination to terminate benefits after they received an opinion from Morris’s physician that he was attempting to manipulate the system. Although the assumptions made by the treating physician were incorrect, we cannot say the trial court committed manifest error in determining that the employer was not arbitrary and capricious in its reliance.

Morris also alleges that the employer was arbitrary and capricious in failing to authorize treatment after its receipt of the results of the IME. Given that Appellants were in receipt of two conflicting medical opinions, again we cannot say that the trial court committed manifest error in its determination. We, therefore, find Morris’s answer to this appeal does not warrant any relief.

Finally, Morris seeks attorney fees for filing a frivolous appeal. We do not find that the appeal qualifies as frivolous and, therefore, we deny this request.

DECREE

For the above discussed reasons, the decision of the trial court is affirmed. Costs are assessed against Appellants, Louisiana Machinery Company, L.L.C. and Travelers Property Casualty Company of America.

AFFIRMED

      . Morris signed a form indicating that Dr. Martin was his choice of physician.

      . Dr. Martin’s records of Morris’s treatment do not contain a reference to Morris’s request for a second MRI.