author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Ortiz T. JACKSON.
    No. 2012-KA-0090.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

| t Defendant, Ortiz Jackson was charged by grand jury indictment with the second degree murder of Mark Westbrook; he was tried by a twelve person jury and found guilty as charged.

The evidence presented at trial revealed that Westbrook was shot while hugging Terakeitha Calloway outside of Lucky’s Lounge in New Orleans on July 10, 2008. Calloway was also injured in the shooting but survived her wounds. Defendant timely appeals his sentence and conviction on the grounds that (1) he was denied his constitutional right to due process of law when he was convicted on a non-unanimous verdict; (2) he was denied his constitutional right to present a defense and to confront and cross examine witnesses against him; and (3) comments made by the prosecution during closing arguments tainted jurors against the defense and constituted reversible error.

Finding no errors patent or merit to any of the defendant’s assignments of error, we affirm the defendant’s conviction and sentence.

| ..STATEMENT OF THE CASE

Ortiz Jackson was jointly indicted with Samuel E. Mack in November of 2008 for the murder of Mark Westbrook and the aggravated battery of Terakeitha Callo-way. The cases were severed prior to trial, and the State elected to try Jackson solely on the murder charge. The jury, in a 10-2 vote, found Jackson guilty of second degree murder as charged. Prior to sentencing, the trial court denied defendant’s motion for a new trial and his motion for post-verdict judgment of acquittal. He was sentenced to serve life in prison at hard labor without the benefit of parole, probation, or suspension of sentence. It is from this conviction and sentence that the defendant now appeals.

FACTS

Eyewitness testimony

James Bradley was one of the State’s key witnesses at trial. He explained that the victim, Westbrook, was like a brother to him; the two had been close Mends since childhood and were living and working together at the time of Westbrook’s murder. According to Bradley, he and Westbrook were having drinks at Lucky’s Lounge on July 10, 2008, when Westbrook got into a verbal argument with another friend, Roderick “Rock” McKinney, who had cut in on his dance partner. According to Bradley, that argument ended when Westbrook got into a second argument with another bar patron, Samuel Mack. Bradley also observed Mack talking on the phone around the time of their argument.

Bradley testified that he and Westbrook were getting ready to leave the bar when Westbrook stepped out of the car to hug and continue making amends with McKinney. Terakeitha Calloway also walked up to hug Westbrook. Bradley |swas waiting for Westbrook to get back inside the car when he heard a gunshot. He then looked up and observed the defendant, Jackson, put a gun to back of Westbrook’s head and fire a second shot. Bradley estimated being approximately three to four feet away from Westbrook when the shooting occurred.

Edwin Nelson also testified as an eyewitness to the shooting at trial. He explained that he arrived at Lucky’s Lounge shortly after Westbrook’s argument with McKinney had ended. He followed West-brook, McKinney, and Mack outside to find out what was going on when he observed another argument between West-brook and Mack. Nelson also observed Mack place a call from his cell phone during this argument. Nelson never saw Samuel Mack again that night.

Later, as Nelson sat in his car, preparing to leave behind Westbrook and Bradley, Nelson observed McKinney walk up to Westbrook’s window and ask if everything was okay. Westbrook then got out of his car and gave McKinney “dap” and a hug. Nelson was changing his radio when he heard the first shot; he then looked up to see Jackson standing behind Westbrook with a gun pointed at his head. He observed the defendant shoot Westbrook a second time as he was falling. Nelson estimated that the shooting occurred approximately 30-45 minutes after Mack made a call on his cell phone.

Testimony of Detective Burns

New Orleans Police Department Detective Kevin Burns, Jr., testified on behalf of the State at trial. After arriving on the scene of the crime, he interviewed Bradley, McKinney, and Ronald Ruffin, who was also at the bar that night. Other officers interviewed Nelson and Calloway the night of the shooting; Detective Burns spoke with Calloway the following morning.

| ¿Detective Burns testified regarding photographic lineups of Jackson that were compiled and shown to Bradley, Nelson, and Calloway. Without testifying as to what any of the witnesses told him, Detective Burns explained that he obtained arrest warrants for Jackson for the first degree murder of Mark Westbrook and attempted first degree murder of Ms. Cal-loway after displaying the lineups to these witnesses.

Detective Burns also testified concerning statements made by Jackson after his arrest. Jackson told the detective that he heard that Samuel Mack had killed Mark Westbrook. He personally denied any role in the shooting and claimed that he was at a hotel in Slidell when the shooting occurred. Jackson was able to identify Mack in a photographic lineup and said that the two had been friends for twenty years.

During questioning Jackson also blurted out, “Terakeitha Calloway is not coming to court anyway, so I’m straight.” When Detective Burns asked Jackson who Calloway was, he replied that she was the victim who had been shot at the bar. Jackson claimed he knew this because he had read it in The Times-Picayune the day after the shooting. In response, Detective Burns told Jackson that victims’ names are not placed in the newspaper until family members are notified; he testified that because of this, he believed that Jackson was lying. Jackson also told the detective that he lived across the street from Ms. Calloway. Calloway, in fact, did not testify at trial.

| BOther corroborating evidence

Cell phone records were introduced at trial to corroborate testimony by Nelson and Bradley, who each testified that they observed Samuel Mack on his cell phone around the time of his argument with Westbrook. These records confirmed that a total of eleven calls were placed between Jackson and Mack around the time of the shooting. In addition, five of these calls were made within thirty minutes of the shooting.

The coroner’s testimony also corroborated that of Nelson and Bradley. He explained that Mark Westbrook suffered two shotgun wounds. The fatal blast entered the back of his neck at the base of the skull and came out of his right cheek. A second bullet went into Westbrook’s left shoulder and came out of his chest. The coroner was of the opinion that the shots were inflicted at close range because he observed small particles of gun powder on Westbrook’s skin below the hole entry point. Both Nelson and Bradley testified to looking up after hearing the first gun shot and then observing Jackson fire the second shot from behind Westbrook.

LAW AND ANALYSIS

Assignment of Error No. 1

In his first assignment of error, the defendant challenges the constitutionality of Louisiana Code of Criminal Procedure Article 782, which states in pertinent part, “Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a | (¡verdict.” The defendant’s argument is based on the Fourteenth Amendment of the United States Constitution, which he claims guarantees defendants in Louisiana the same due process rights that defendants in other states receive. He also argues that the Sixth Amendment right to a trial by jury requires a unanimous jury verdict, citing McDonald v. City of Chicago, — U.S. -, 130 S.Ct. 3020, 3035, n. 14, 177 L.Ed.2d 894 (2010).

The defendant claims that Louisiana is one of only two states that allow a person to be convicted of a felony by less than a unanimous verdict. He points out that this non-unanimity rule was adopted by the state at its 1898 constitutional convention. Of relevance, he argues, the “mission” of the convention was “to establish the supremacy of the white race.” The convention was also “called together by the people of this State to eliminate from the electorate the mass of corrupt and illegitimate voters who have during the last quarter of a century degraded our politics.”

The defendant further claims that comprehensive empirical research affirms the wisdom of requiring unanimous verdicts. For instance, he points out that the American Bar Association has recommended that unanimous verdicts be required in all criminal jury trials. Studies examined by the American Bar Association “suggest that where unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating, and take more ballots.” American Bar ^Association, American Jury Project, Principles for Juries and Jury Trials, p. 24. The ABA’s American Jury Project further concluded that “[a] non-unanimous decision rule allows juries to reach a quorum without seriously considering minority votes, thereby effectively silencing those voices and negating their participation.” Id. at 24.

In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court held that juries in state courts may convict a defendant by less than a unanimous verdict even though federal law requires unanimous juries in federal criminal cases. The majority in a 4-1-4 plurality decision held that the Sixth and Fourteenth Amendments do not prohibit states from securing convictions on less than unanimous verdict in non-capital cases. Justice Powell concurred for different reasons. Four other justices disagreed with the decision, finding that the Sixth Amendment guarantee of a jury trial made applicable to the states by the 14th Amendment did mandate unanimous juries. The defendant argues that legal developments and academic studies since the Apodaca decision was handed down call the judgment by a five-vote majority into serious question and make it ripe for Louisiana courts to now deem Article 782 unconstitutional.

Although the defendant makes a well-reasoned and compelling argument in support of his position that there are disparities inherent in non-unanimous juries that should be remedied, this Court is constrained by the most recent pronouncement of the Louisiana Supreme Court in State v. Bertrand, 08-2215, p. 8 (La.3/17/09), 6 So.3d 738, 743, which upheld the constitutionality of Article 782. |sIn State v. Bertrand, supra, the Louisiana Supreme Court overturned two lower court judgments which had declared Article 782 unconstitutional. In doing so it stated: “Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments.” This Court has repeatedly followed the Supreme Court’s lead in Bertrand.

Accordingly, this assignment of error is without merit.

Assignment of Error No. 2.

The issues raised by the defendant’s second assignment of error are governed by the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, which guarantees the right of a criminal defendant to be confronted with the witnesses against him. This includes the right to confront and cross examine witnesses and the right to present a defense. The defendant specifically argues that the consequences of the trial court’s evidentia-ry rulings as to the admissibility of hearsay testimony and evidence resulted in the denial of defendant’s constitutional right to: (1) present a defense; (2) produce evidence in rebuttal; (8) engage in cross examination to test the State’s evidence; (4) present 19his version of the facts to the jury; and (5) assert that someone else committed the crime. The defendant cites several instances in the trial proceedings whereby he alleges the trial court’s eviden-tiary rulings constitute reversible error.

For the reasons outlined below, we find no abuse of discretion in the trial court’s evidentiary rulings under the Sixth Amendment.

Hearsay nature of cross examination testimony

One of the major arguments the defendant makes is that his constitutional rights were violated because the State failed to call witnesses for trial who gave statements that conflicted with the State’s theory of the case, and the defense was not allowed to cross examine witnesses regarding these inconsistencies. He claims that this also prevented him from being able to effectively present his defense of misiden-tification by the State’s witnesses.

In support of this position, the defendant claims that he was not allowed to cross examine Detective Burns regarding statements made by Ruffin relating to the crime scene and other evidence; evidence relating to lineups shown to Ruffin and McKinney; Ruffin’s alleged misidentification of Mack; McKinney’s identification of the shooter; or other information by McKinney that was inconsistent with other witnesses. He also complained that he was not allowed to cross examine Nelson regarding information he may have heard Ruffin say about the incident. To support his position, the defendant relied on testimony elicited during the motion to suppress that defendant was not able to subsequently bring out at trial. The trial court excluded this evidence largely on the grounds that it was impermissible | inhearsay. A review of the record does not support the defendant’s allegations that his Sixth Amendment rights were violated in this regard.

Compelling circumstances rule

This court has recognized that under “compelling circumstances,” a defendant’s right to present a defense may require admission of statements which do not fall under any statutorily recognized exception to the hearsay rule. State v. Fernandez, 09-1727 (La.App. 4 Cir. 10/6/10), 50 So.3d 219, 228-29; State v. Van Winkle, supra; State v. Gremillion, 542 So.2d 1074 (La.1989). This right to present a defense, however, does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Fernandez, 50 So.3d at 229; State v. Mosby, 595 So.2d 1135 (La.1992); La. C.E. art. 403. Louisiana Code of Evidence Article 103(A) further provides that an error may only be predicated upon a ruling which excludes evidence if a substantial right of the party is affected. Fernandez, 50 So.3d at 229.

In State v. Van Winkle, supra, a leading case on this issue, the defendant was a mother accused of murdering her 12-year old son. She alleged that the trial court erred by not allowing her to question witnesses regarding her defense theory that her boarder was a homosexual predator who killed her son with the assistance of his lover. Specifically, she complained that she was prevented from questioning the boarder regarding his sexual lifestyle; from questioning the coroner about the condition of her son’s anus; from questioning the chemist regarding the absence of seminal fluid; and from questioning bartenders on whether a bar frequented by the boarder was predominately a gay bar. The Supreme Court found that these | n evidentiary rulings had the effect of preventing the defendant from presenting her defense. It stated, “Evidentiary rules may not supersede the fundamental right to present a defense.” Id. at 202.

In reaching this conclusion, the Supreme Court relied on its opinion in State v. Gremillion, supra. In Gremillion, the defendant wanted to introduce evidence that other third parties were responsible for the victim’s murder. To this end, the defendant sought to introduce evidence of a statement wherein the victim told an investigator that he had been beaten and attacked by three white males. The trial court found that the evidence was inadmissible hearsay. The Louisiana Supreme Court agreed that it was hearsay, but found that it should have been admitted under U.S. Supreme Court jurisprudence holding that normally inadmissible hearsay evidence may be admitted if it is reliable, trustworthy, and relevant, and if to exclude it would compromise the defendant’s right to present a defense. Gremillion, 542 So.2d at 1078 (citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973)).

In the present case, the evidentiary rulings complained of did not rise to the level of an impingement of the defendant’s right to present a defense at trial. Instead, they primarily related to the admissibility of out of court statements given by Ruffin and McKinney — two witnesses the defendant could have called to testify at trial and did not.

Louisiana Code of Evidence Article 801(C) defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” See State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801. Hearsay is ordinarily not | ^admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Moreover, a trial court’s ruling on the admissibility of evidence will not be disturbed in the absence of a clear abuse of the trial court’s discretion. State v. Bell, 05-0808, p. 12 (La.App. 4 Cir. 12/6/06), 947 So.2d 774, 781; State v. Lewis, 97-2854, p. 20 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1017. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. State v. Hall, 02-1098, p. 8 (La.App. 4 Cir. 8/19/03), 843 So.2d 488, 496.

The evidence in this case reveals that the victim, Westbrook, was involved in two separate altercations: one with “Rock” McKinney and one with Samuel Mack. There is no evidence that the victim was ever involved in an altercation with the defendant, Jackson. The evidence reveals that the shooting and the prior altercations all occurred at the bar and that several bar patrons were interviewed. In light of these circumstances, it is quite conceivable that some of the bar patrons gave various descriptions of the possible suspect. The fact that the State chose to only call witnesses that the detectives concluded witnessed the shooting itself, or who supported the State’s theory of the case, does not deprive the defendant of the opportunity to call others as witnesses. Instead, the defendant had the right to call as witnesses those patrons who supported his theory of the case.

In Van Winkle, the defendant actually called witnesses whose testimony would support her theory of the case. There, the trial court essentially impinged on her right to present a defense by not allowing her to question the defense witnesses regarding evidence that someone else may have committed the crime. In Gremillion, the victim was not available because he had been murdered, and none |1sof the exceptions to the hearsay rule applied. In these cases, but for the evidentiary rulings of the trial court, the defendants had no other way to present their defenses at trial.

That is not what occurred in this case. There is no evidence that Jackson made any attempt whatsoever to call Ruffin or McKinney as witnesses at trial; there is also no evidence that the actions of the trial court or the state prevented him from calling them as witnesses. The defendant cannot now rely on a compelling circumstances exception to salvage a defense that could have been presented at trial if the defendant had simply called as witnesses the patrons whose statements he wanted admitted in support of his defense. Under the circumstances of this case, the defendant’s rights to confront and cross examine the State’s witnesses and to present a defense were not violated by the evidentia-ry rulings of the trial court.

Non-testimonial statements

The defendant also argued that he should have been able to cross examine the State’s witnesses regarding assertions made by non-testifying witnesses pursuant to Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), because the statements were made by the witnesses while detectives were still looking for the perpetrator, and the statements were therefore not hearsay. Defendant’s reliance on Bryant is misplaced. In Bryant, the Supreme Court concluded that statements resulting from an interrogation were non-testimonial because the primary purpose of the interrogation was to enable police to deal with an ongoing emergency (i.e., a wounded crime victim who died before trial). It held |14that such non-testimonial statements do not violate the Confrontation Clause of the Sixth Amendment.

The Bryant Court, however, was careful to explain that a finding that a statement does not violate the Confrontation Clause does not automatically make it admissible under state laws governing the admissibility of hearsay evidence. The Court noted, “the admissibility of a statement is a concern of state and federal rules of evidence, not the Confrontation Clause.” Id., 131 S.Ct. at 1155. The Court then remanded the case to the lower court for a determination of “whether the statements’ admission was otherwise permitted by state hearsay rules.” Id. at 1167.

Under the facts and circumstances of the present case, this Court finds that the trial court did not err in sustaining the State’s objections to defense attempts to introduce hearsay testimony of non-testifying witnesses under the Louisiana Rules of Evidence. Furthermore, even if there was error in not allowing the defendant’s line of questioning, confrontation claims are subject to a harmless error analysis. State v. Moore, 10-0314, p. 7 (La.App. 4 Cir. 10/13/10), 57 So.3d 1033, 1038-39.

Indirect hearsay testimony

The defendant also asserts that his constitutional rights were violated when the trial court allowed “indirect” hearsay testimony of Bradley, Nelson, and Callo-way to be admitted into evidence. He claims that this evidence was introduced “indirectly” because the court allowed Detective Burns to testify regarding photographic lineups that were shown to each of these witnesses. Citing State v. Veals, 576 So.2d 566 (La.App. 4th Cir.1991), as authority for the exclusion of “indirect” hearsay testimony, the defendant argues that the State | ^improperly elicited testimony from the detective in two parts that, when considered together, would have permitted the jury to logically infer information that would have been inadmissible hearsay if testified to directly at trial.

A review of the trial transcript confirms that Detective Burns testified to compiling photographic lineups of Jackson that were shown Bradley, Nelson, and Calloway. The lineups presented to Nelson and Bradley were admitted without objection, while the defendant successfully objected to the third lineup being introduced into evidence. Detective Burns then testified that he obtained a warrant for Jackson after showing the lineups to the witnesses. Defense counsel objected, the trial court sustained the objection, and the court instructed the jury to disregard the testimony. This Court finds that the defendant’s rights were not violated by virtue of this line of questioning regarding the photographic lineups.

This Court has previously explained that “[t]he fact that the jury could infer that someone may have made a statement implicating the appellant does not automatically make the statement hearsay.” State v. Bagneris, 01-0910, p. 4 (La.App. 4 Cir. 12/19/01), 804 So.2d 831, 834. In addition, “it is obvious whenever a defendant’s photograph is included in a lineup that the defendant somehow came under suspicion; otherwise, his photograph would not have been included.” Id. We explained that “[t]his permissible inference does not make the statement hearsay.” Id. A witness’ act of selecting a picture of a suspect from a photographic lineup presented by police is not hearsay because it constitutes a statement of identification as contemplated by La. C.E. art. 801(D)(1)(c), which provides:

|lfiA statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... [o]ne of identification of a person made after perceiving the person.

Because Nelson and Bradley both testified at trial and were subject to cross examination concerning any statement made by them identifying the defendant as the shooter, their identifications of the defendant were not impermissible hearsay.

This issue was recently addressed in State v. Duncan, 11-0563, p. 19 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 516-17, wherein we explained that officers’ testimony as to witnesses’ identification of a defendant— “both in their respective statements as well as their assertions in selecting the defendant in ... photo lineups” — is not hearsay. Instead, such statements “may be used assertively, as substantive evidence of guilt, and may be established through the testimony of the person to whom the statement was made, even if the witness denies making an identification or fails to make an in-court identification.” Duncan, 91 So.3d at 516.

We find that the trial court did not err in allowing Detective Burns to testify regarding the fact that he showed the lineups to the witnesses, and thereafter took action based on what they told him. Because Detective Burns’ testimony did not amount to inadmissible hearsay, the defendant’s Sixth Amendment right to confrontation was not violated.

Moreover, to the extent that the defendant may be complaining that Detective Burns’ testimony “indirectly” placed hearsay testimony of Calloway into evidence, this allegation is not supported by the record. Defendant admits that Detective Burns did not testify regarding what Cal-loway said during the lineup. |17He also did not suggest that Calloway positively identified the defendant in the photographic lineup presented to her. Instead, after testifying that he presented photographic lineups of the defendant to each Calloway, Nelson, and Bradley, all subsequent questioning and testimony related solely to the lineups presented to Nelson and Bradley.

Newspaper evidence

Lastly, the defendant claims that the trial court impinged on his Sixth Amendment rights by preventing him from showing Detective Burns newspaper accounts of the shooting during cross examination.

During cross-examination, defense counsel asked Detective Burns whether “it’s a fact that [he] told the public information officer that Sam Mack was the shooter in this case,” to which the detective responded, “No.” He then asked the detective if he saw that information in the newspaper. The response was again, “No.” Defense counsel then asked, “Detective, if I showed you the newspaper article, would that refresh your recollection?” At that point, the State objected and the court sustained its objection.

Defense counsel pointedly asked Detective Burns if showing him a newspaper article would refresh his memory despite the fact that the detective had already said he never saw a newspaper article which said that Sam Mack was the shooter. Now, on appeal, the defendant claims that the paper was being introduced for impeachment purposes. Newspaper articles are considered self-authenticating docu-merits and there is ordinarily no need to show evidence of authenticity prior to admitting as evidence at trial pursuant to La. C.E. art. 902(6). See, e.g., Spears v. Grambling State University, 12-0398 (La.App. 1 Cir. 12/17/12), 111 So.3d 392, 2012 WL 6560600. Generally, a trial court’s ruling as to the admissibility of evidence will not be disturbed absent a clear abuse of discretion. State v. Cyrus, 11-1175, p. 20 (La.App. 4 Cir. 7/5/12), 97 So.3d 554, 565, citing State v. Richardson, 97-1995, p. 14 (La.App. 4 Cir. 3/3/99), 729 So.2d 114, 122. In addition, at least one case has held that evidence should not be admitted to refresh a witness’ recollection where the witness has never actually expressed a desire to have their memory refreshed from the document. State v. Collins, 546 So.2d 1246, 1262 (La.App. 1st Cir.1989). Accordingly, we find that the trial court acted within its discretion by sustaining the State’s objection regarding using the paper to attempt to refresh the detective’s memory.

Considering all the relevant factors and evidence presented in this case, this Court finds that there is no evidence that the guilty verdict rendered was attributable in any way to any confrontation or compulsory process errors complained of by the defendant. There is no merit to this assignment of error.

Assignment of Error No. 3.

In the defendant’s third assignment of error, he argues that the trial court allowed the State to make impermissible comments during closing arguments, which tainted the jury against defense counsel and created reversible error. In particular, he claims that the prosecutor made it appear that the defense was deceitful and that the defense was hiding things from the jury.

Pursuant to La.C.Cr.P. art. 774, the scope of closing argument should be confined to the evidence admitted, the lack of evidence, conclusions of fact that the | i9State or defendant may draw therefrom, and the law applicable to the case. The State’s rebuttal shall be confined to answering the argument of the defendant. Id.

While prosecutors have wide latitude with regard to tactics used during closing arguments, they should not appeal to prejudice and should refrain from making personal attacks on defense strategy and counsel. State v. Manning, 03-1982, p. 75 (La.10/19/04), 885 So.2d 1044, 1108; State v. Brumfield, 96-2667, p. 9 (La.10/20/98), 737 So.2d 660, 666. Nevertheless, even where a prosecutor exceeds that wide latitude, the reviewing court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the guilty verdict. State v. Taylor, 93-2201, p. 7 (La.2/28/96), 669 So.2d 364, 369.

A trial court has broad discretion in controlling the scope of closing arguments, and Louisiana courts have consistently held that great consideration should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence, heard the arguments, and repeatedly been instructed by the trial judge that arguments of counsel are not evidence. State v. Casey, 99-0023, p. 17 (La.1/26/00) 775 So.2d 1022, 1036; State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, 258.

During rebuttal, the prosecutor compared the defense to Muhammad Ali— a “master of distraction” who would use fancy footwork and talking during fights to distract his opponents. We find that the trial court did not err in overruling the defendant’s objection to the prosecution’s Ali analogy because similar arguments by prosecutors have been upheld by Louisiana courts. For instance, in State v. Martin, 539 So.2d 1235, 1240 (La.1989), the Louisiana Supreme Court held that |20closing argument referring to “smoke screen” tactics by the defense was not improper.

The prosecutor in the present case further stated, “Remember that arrest register they showed you? Well, you know what, you all remember, you all remember this. Too late to hide it now because /all saw it and /all remember it.” Following this comment, the trial court sustained defendant’s objection and admonished the jury to disregard the remark about hiding something. We find that there was no error in this regard.

Referring to Jackson’s statement to Detective Burns that Terakeitha Calloway would not come to court, the prosecutor asked, “[W]hy wouldn’t I want somebody who has been shot, who’s been shot, to come to court and say I didn’t shoot them?” This question rhetorically commented on the facts of the case and inferences that could be drawn therefrom, and was therefore not impermissible.

Other comments cited as improper by the defendant either could not be found in the record, or are not properly before us on appeal because defense counsel did not contemporaneously object at trial. Code of Criminal Procedure Article 841 provides in pertinent part, “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” See also, State v. Clark, 332 So.2d 236 (La.1976).

Considering the record as a whole, we find that none of the prosecutor’s comments contributed to the verdict or created reversible error. Therefore, this assignment of error has no merit.

| ^DECREE

For the reasons stated above, and upon a finding of no errors patent on the face of the record on appeal, the defendant’s conviction and sentence are affirmed.

AFFIRMED

LANDRIEU, J., concurs in the result.

      . The defendant also cites La. Const. Art I, § 17, which provides in relevant part: "A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried by a jury of twelve persons, ten of whom must concur to render a verdict.”

      . The defendant initially filed a motion to require a unanimous verdict, which was denied by the trial court. The defendant renewed his objection to a non-unanimous verdict in his motion for a new trial; the court again rejected this argument.

      . See Or. Const. art. I § 11; Or.Rev.Stat. § 136.450.

      . See Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana, at 374 (Statement of Hon. Thomas J. Semmes). It was further proclaimed that the "mission was, in the Erst place, to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.” Id. at 375.

      . Id. at 9 (Statement of Hon. E.B. Kruttsch-nitt).

      .The defendant cites Bertrand, supra, as authority claiming that the Louisiana Supreme Court took note of an insidious racial component of non-unanimous juries. To the contrary, the court took note that the defendant raised that as an issue in that case, but that it had already been considered by the court in Apodaca. Bertrand, 6 So.3d at 743. Therefore, defendant’s reliance on Bertrand as authority for this position is misplaced.

      . See, e.g., State v. Krodinger, 12-0134, p. 11 (La.App. 4 Cir. 2/27/13), -So.3d -, 2013 WL 749708 (unpublished); State v. Bonds, 11-1674, p. 2 (La.App. 4 Cir. 10/3/12), 101 So.3d 531, 532; State v. Williams, 11-1547, p. 9-10 (La.App. 4 Cir. 9/26/12), 101 So.3d 104, 111.

      . The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” The United States Supreme Court has held that this guarantee, which is extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987); State v. Collins, 10-0757 (La.App. 4 Cir. 5/11/11), 65 So.3d 271, 286.

      . State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201.

      . The defendant claims that the line-up shown to Calloway was admitted over defense's objection. Instead, it was later introduced by the State for record keeping purposes only. The jury never saw it.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Gabrielle Marie Louisa CHATAGNIER v. 1ST A SOUTHEAST INCS, L.L.C.
    No. 2012 CA 1314.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Brent J. Rhodes, Houma, LA, for Plaintiff/Appellee, Gabrielle Chatagnier.
    Wade A. Langlois, III, Gretna, LA, for Defendant/Appellant, 1st A Southeast Ines, L.L.C.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

|2In this workers’ compensation case, an employer appeals the judgment of the Office of Workers’ Compensation (OWC) in favor of the employee. For the reasons that follow, we affirm,

FACTUAL AND PROCEDURAL HISTORY

On September 9, 2010, Gabrielle Marie Louisa Chatagnier was employed as a Senior Team Leader/Receptionist for 1st A Southeast Incs, L.L.C. (1st A Southeast), a company providing services for the elderly and mentally challenged. Ms. Chatagnier worked in the Houma office, under the supervision of the main office in Gretna. Ms. Chatagnier testified that she worked as a receptionist at 1st A Southeast in the mornings from 8 a.m. to noon and then as a senior team leader from noon to 4 p.m. She stated that she did not clock out for lunch. Ms. Chatagnier also testified that having transportation was a prerequisite of her job and that she did a lot of driving with her job, for which she received $80.00 per month for gas.

On the morning of September 9, 2010, Ms. Chatagnier received a call on the office telephone from Sonya Geason, an employee based in the Gretna office. Ms. Geason asked Ms. Chatagnier if she could pick up a canister from Burke’s Outlet Store for her. Ms. Geason mentioned that she and Stephanie Jackson, the owner of 1st A Southeast, had forgotten to pick it up when they were in Houma the day before. Ms. Geason did not tell Ms. Cha-tagnier what the canister was for.

Ms. Chatagnier went out to lunch that day with a co-employee for her birthday. After lunch, instead of making the turn to return to the office, Ms. Chatagnier passed the office and proceeded on Tunnel Boulevard towards Burke’s Outlet to pick up the canister. While she was stopped at a traffic light at the intersection of Tunnel Boulevard and Polk Street, the vehicle Ms. Chatagnier was driving was rear-ended.

| (¡On May 5, 2011, Ms. Chatagnier filed a disputed claim for compensation, seeking the payment of wage benefits and medical bills, as well as authorization for future medical treatment. Ms. Chatagnier alleged that she suffered injuries to her neck, head, and back and that at the time of the accident she “was on a mission from [her] employer to Burke’s Outlet to obtain a metal canister for corporate.” 1st A Southeast answered, denying that Ms. Chatagnier was in the course and scope of her employment at the time of the injury and also denying that her injuries were related to or caused by the accident.

Following a trial on April 3, 2012, the OWC found that Ms. Chatagnier was acting in the course and scope of her employment at the time of the automobile accident and that she suffered injury as a result of the accident. The OWC determined that 1st A Southeast was liable for Ms. Chatagnier’s medical expenses. The OWC also ordered 1st A Southeast to pay continuing indemnity benefits from the date Ms. Chatagnier left her employment, on October 14, 2010, until there was a material change in circumstances. Additionally, the OWC authorized the recommended surgery on Ms. Chatagnier’s lumbar spine and ordered that 1st A Southeast pay for the surgery, as well as all reasonable and necessary treatment incidental to the surgery. Judgment was signed on April 13, 2012, and 1st A Southeast appealed, urging two assignments of error:

1. The [OWC] made an error of law in determining that the claimant proved course and scope of employment based upon her perception or belief that she was on a business mission at the time of her motor vehicle accident when the correct legal standard of proof is not based upon the claimant’s perception but on the actual facts of the case.
2. Alternatively, Claimant failed to prove a causal connection between the [motor vehicle accident] and her injury/disability because she was not forthcoming about her prior injuries and treatment.

^DISCUSSION

Standard of Review

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard, Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112, 117. For an appellate court to reverse a factual finding of the OWC, it must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the OWC’s finding. The reviewing court must review the record in its entirety to determine whether the OWC’s finding was clearly wrong or manifestly erroneous. Dawson v. Terrebonne General Medical Center, 10-2130 (La.App. 1 Cir. 5/19/11), 69 So.3d 622, 626.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Dawson, 69 So.3d at 626-27.

Course and Scope

1st A Southeast initially argues that the OWC erred in concluding that Ms. Chatagnier was in the course and scope of her employment at the time of her motor vehicle accident. Specifically, 1st A Southeast contends that the OWC erred in finding that because Ms. Chatagnier reasonably perceived that she was on a business mission she was in the course and scope of her employment | ¡¡entitling her to benefits under the Workers’ Compensation Act. 1st A Southeast maintains that Ms. Cha-tagnier was required to prove that she was actually “actively engaged in the performance of her duties.” However, Ms. Cha-tagnier argues that she was on a specific mission for 1st A Southeast and that she was doing work for her employer under circumstances where 1st A Southeast’s consent could be fairly implied. Thus, according to Ms. Chatagnier, she was within the course and scope of her employment at the time of the accident.

Under the Workers’ Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident “arising out of and in the course of his employment.” LSA-R.S. 28:1031; McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135, 1139. The requirement that an employee’s injury occur “in the course of’ employment focuses on the time and place relationship between the injury and the employment. McLin, 851 So.2d at 1139-40. An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. McLin, 851 So.2d at 1140; Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La.1992). The requirement that an employee’s injury “arise out of’ the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment. McLin, 851 So.2d at 1140.

The terms “arising out of’ and “in the course of’ found in LSA-R.S. 23:1031 are dual requirements that cannot be considered in isolation from each other. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152, 1154; Martin v. Pride Offshore Co., Inc., 05-2373 (La.App. 1 Cir. 11/3/06), 950 So.2d 805, 808. In a close case, a strong showing made with reference to one requirement may compensate for a weak showing with reference to the other requirement. However, when there is a weak showing |fiwith respect to both requirements, the employee is not entitled to compensation benefits. Guillory, 653 So.2d at 1154; Martin, 950 So.2d at 808.

Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of employment, and thus, are not compensable under the Workers’ Compensation Act. This rule, often called the “going-and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves work to return home until he resumes his work. McLin, 851 So.2d at 1140; Martin, 950 So.2d at 808. However, this rule has been subject to a number of jurisprudentially established exceptions. For example, these exceptions have arisen: (1) if the accident happened on the employer’s premises; (2) if the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer’s business or pursuant to his employer’s order; (3) if the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses; (4) if the employee was doing work for his employer under the circumstances where the employer’s consent could be fairly implied; (5) if the employee was hurt while traveling to and from one worksite to another; (6) if the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee; and (7) if the operation of a motor vehicle was the performance of one of the duties of the employment of the employee. McLin, 851 So.2d at 1140 n. 1.

At trial, Ms. Chatagnier testified that, while Ms. Jackson was her employer and boss, she also considered Ms. Geason “a boss.” She stated that Ms. Geason had given her orders before and she thought Ms. Geason was “second in command.” Ms. Chatagnier also said that whenever Ms. Jackson came to Houma, Ms. Geason was with her.

Ms. Chatagnier testified that when Ms. Geason called her on the morning of September 9, 2010 to pick up the canister, Ms. Geason did not tell her what |7the canister was for, but that Ms. Geason had never before asked her to run a personal errand. Ms. Chatagnier stated that she felt as though she could not refuse the request and stated, “I thought it was coming as a direct command.” Ms. Chatagnier further testified that she did not get the feeling from Ms. Geason that the canister was for personal use and said she would not have gotten it if she had known it was a personal errand for Ms. Geason.

Ms. Geason admitted that she had never asked Ms. Chatagnier to run a personal errand for her before September 9, 2010. She also acknowledged that she had called the Houma office in the past at Ms. Jackson’s request with instructions. She admitted that she did not tell Ms. Chatagnier what the canister was for. However, in her mind, Ms. Geason gave Ms. Chatagnier no reason to believe that the request was a corporate request when made. In her testimony, Ms. Jackson acknowledged that Ms. Geason had on past occasions communicated Ms. Jackson’s instructions to the Houma office.

In its reasons, the OWC stated: ■

So we have a history of acknowledgment that [Ms. Geason] is basically the mouthpiece for the owner at times. And [Ms. Geason], who is saying it was a personal errand, did not explain to Ms. Chatagnier the details. And so here you have a mouthpiece for the boss, calling an employee, not explaining what it was for, telling the employee to go get this.

The OWC evaluated the testimony, as well as the documentary evidence, presented at trial and concluded that Ms. Chatag-nier was in the course and scope of her employment at the time of the accident. Based on the totality of the circumstances, including credibility determinations, the OWC believed Ms. Chatagnier’s version of events that this was a specific mission for her employer, pursuant to her employer’s order. After our own thorough review of the record and relevant jurisprudence, we cannot find that the OWC’s finding that Ms. Chatagnier was acting in the course and scope of her employment with 1st A | ¡¿Southeast at the time of her automobile accident on September 9, 2010, was manifestly erroneous or clearly wrong.

Causation

Alternatively, 1st A Southeast challenges the finding of the OWC that Ms. Chatagnier’s injuries were causally related to her accident. In particular, 1st A Southeast asserts that Ms. Chatagnier had prior back and neck problems that she failed to disclose during discovery. Further, 1st A Southeast contends that by failing to reveal a previous knee injury to Dr. McAllis-ter, Dr. McAllister did not have a complete medical history and, therefore, could not determine which of Ms. Chatagnier’s conditions were pre-existing.

A workers’ compensation claimant bears the burden of .establishing a causal connection between the work accident and the resulting disability by a preponderance of the evidence. Clark v. Godfrey Knight Farms, Inc., 08-1723 (La.App. 1 Cir. 2/13/09), 6 So.3d 284, 292, writ denied, 09-0562 (La.5/29/09), 9 So.3d 163. An employee’s work-related accident is presumed to have caused his disability when the claimant proves that before the accident, he had not manifested his disabling symptoms; that commencing with the accident, disabling symptoms appeared; and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition. Delatte v. Pala Group, LLC, 09-0913 (La.App. 1 Cir. 2/10/10), 35 So.3d 291, 295, writ denied, 10-0562 (La.5/7/10), 34 So.3d 865. Dubuisson v. Amclyde Engineered Products Co., Inc., 12-0010 (La.App. 1 Cir. 12/31/12), 112 So.3d 891, 2012 WL 6758006. 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. Magee v. Abek, Inc., 04-2554 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 806, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287.

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the 19worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Intern., Inc., 593 So.2d 357, 361 (La.1992); Roberts v. Thibodaux Healthcare Center, 05-0774 (La.App. 1 Cir. 3/24/06), 934 So.2d 84, 92. Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Bruno, 593 So.2d at 361. Barring circumstances that cast suspicion on the reliability of the worker’s uncontradicted testimony, the OWC should accept the testimony as true when determining whether the worker has discharged his or her burden. Roberts, 934 So.2d at 92. The OWC’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations, which are not to be disturbed on review unless clearly wrong or manifestly erroneous. Delatte, 35 So.3d at 295.

Thus, we will examine the evidence presented by Ms. Chatagnier to determine whether she met her burden of proving that, more probably than not, her current neck and back problems were causally related to the accident that occurred while she was in the course and scope of her employment. If there is medical and other evidence indicating a reasonable possibility of that causal connection, then the OWC’s factual finding concerning this issue cannot be “clearly wrong” and cannot be overturned by this court.

At trial, Ms. Chatagnier testified that when she was rear-ended her “body moved around like a pinball.” She stated that her neck was burning, but at that point in time, she was not feeling anything in her back. Later that day, Ms. Chatagnier went to the emergency room at Terre-bonne General Medical Center (TGMC), complaining of pain in her neck and shoulders. Ms. Chatagnier also stated that after the accident she began having migraine headaches, which she acknowledged she previously experienced. Having been under his care before, Ms. Chatagnier sought treatment with her chiropractor, Dr. Beau I. Porche, about a week after the accident for her aches and pains from the accident. Ms. Chatagnier testified that she treated with Dr. Porche for approximately eight months before being referred to Dr. Phillip V. McAllister, a neurosurgeon. Ms. 110Chatagnier also testified that after about three to four months she began seeing her family doctor, “when the pain became unbearable.” Ms. Chatagnier stated that the pain at first was in her neck, but as months went by, it also moved to her lower back and into her legs. She said that after Dr. McAllister conducted his testing, he informed her that she needed fusion surgery on her lower back.

Ms. Chatagnier also testified that she tried to return to work in May 2011 at a company similar to 1st A Southeast. She left the job after one week, because she could not perform her duties due to the pain. Ms. Chatagnier stated she again tried employment on a part-time basis at another similar company, but after about a month, her leg gave way one evening in a client’s home, and she felt she had to quit. She has not tried to return to employment since then.

Ms. Chatagnier also discussed two previous motor vehicle accidents in which she was involved. The first was in 2000, where she had complaints of pain in her chest and neck and of some bruising and swelling. Ms. Chatagnier testified that after a visit to the emergency room, she received no further treatment for that accident and that she had no residual symptoms. Ms. Chatagnier was also involved in another accident in 2003, wherein she was rear-ended and sought medical treatment at the emergency room at Lady of the Sea General Hospital for neck pain. She testified that after the emergency room visit she did not seek medical treatment of any kind until she had a slip-and-fall accident at a Winn-Dixie in September 2008 and injured her knee. Ms. Chatagnier stated that she tore her anterior cruciate ligament (ACL) and was treated by Dr. Porche, who referred her to Dr. Kenneth N. Adatto, an orthopedist. She stated she saw Dr. Adatto one time, who told her that she needed surgery on her knee. Ms. Chatagnier admitted on cross-examination that she chose not to have the surgery, preferring physical therapy instead. She also admitted discussing with Dr. Adatto that she had lower back and neck pain, as well as numbing and tingling in her arms, but was told that because of her knee injury she was overcompensating to her left side. Ms. Chatagnier stated that she continued to treat with Dr. Porche for her knee through September 2009. She | nalso admitted that around 2005 she suffered a pulled a muscle in the middle of her back, but that it resolved. Ms. Chatagnier further testified that she had never been diagnosed with a permanent cervical or lumbar disc condition before September 9, 2010, and had never had an MRI or other testing of her neck or back before the accident in question.

On review of the record, we note that neither Dr. Porche nor Dr. McAllister testified at trial or by deposition. However, their respective medical records pertaining to Ms. Chatagnier were introduced. The medical records show that Dr. Porche of Houma-Thibodaux Spine & Rehabilitation first saw Ms. Chatagnier after the September 9, 2010 accident on September 13, 2010, when she complained of neck and lower back pain due to a motor vehicle accident. Ms. Chatgnier followed treatment with Dr. Porche two to three times a week for several months. During that time, Dr. Porche requested that MRIs of Ms. Chatagnier’s cervical spine and lumbar spine be performed. The cervical spine MRI was conducted on December 8, 2010, and showed “mild disc bulging at C4-5 and C5-6” and “mild bilateral facet arthropathy at C5-6.” The MRI of Ms. Chatagnier’s lumbar spine was performed on March 18, 2011, and showed “disc bulging at L5-S1 narrowing the lateral recesses bilaterally and the neural foramen bilaterally” and “disc bulging at L4-5 with an annular tear at the 6 o’clock position.”

Dr. McAllister first examined Ms. Cha-tagnier on June 13, 2011. His initial impression was cervical spondylosis without myelopathy or radiculopathy, lumbar HNP with radiculopathy, and sciatica. He recommended a myelogram, lumbar spine CT, and x-rays for further diagnostic evaluation of her lumber spine. Dr. McAllister next saw Ms. Chatagnier on August 23, 2011, after the tests were performed, and recommended “an anterior approach for an L5/S1 Anterior Lumbar Interbody Fusion.” On October 18, 2011, Ms. Chatagnier returned to see Dr. McAllister, who commented at this visit that “[u]pon reevaluation of the | |2MRI imaging for today’s visit, there is evidence of L3-4 which shows question of nerve root compression and question of stability.” It was his recommendation to proceed "with the L5/S1 Anterior Lumbar Interbody Fusion. He discussed the surgical and non-surgical options with Ms. Chatagnier, who wished to proceed.

In its reasons, the OWC found that Ms. Chatagnier’s migraine headaches were not related to the accident, but found that her neck and back conditions were related. The OWC then stated:

Knee is not related. Now Dr. McAl-lister will have to separate out: If you have nerve damage from a disc and you have radiculopathy, or you have back-related consequences in the leg versus a torn ACL complications for not having surgery, he’s got to separate that out. So the knee itself is not related.
And if there is going to be treatment for any type of radiculopathy, there’s not usually treatment for the leg. Usually, when you have the surgery on the back, that fixes the leg. So I’m not necessarily treating the leg. You treat the back to help the leg. So I’m going to limit it to that type of claim.

Upon our thorough review of the record, we cannot say that the OWC lacked a reasonable factual basis for the finding that Ms. Chatagnier’s work-related accident caused her neck and back conditions, warranting an award of workers’ compensation and medical benefits, including surgery. Therefore, we are constrained to find that the OWC was not clearly wrong.

CONCLUSION

After a thorough review of the record, we find a reasonable basis to support the OWC’s factual determination that Ms. Chatagnier was injured as a result of an accident while she was in the course and scope of her employment with 1st A Southeast. Therefore, we find no error in and hereby affirm the April 13, 2012 judgment of the OWC. All costs of this appeal are assessed to 1st A Southeast Ines, L.L.C.

AFFIRMED.

      . As a senior team leader, Ms. Chatagnier testified that she worked with clients in their homes. This might also include picking up miscellaneous items to assist clients with the activities of their daily living, such as diapers, gloves or whatever the case might be.

      . The OWC specifically found that Ms. Cha-tagnier’s pre-existing conditions relating to her knees and migraine headaches were exempted from the injuries deemed to be caused by the accident.

      . Ms. Chatagnier did not return to her employment with 1st A Southeast after October 14, 2010, when she was placed on medical leave by Beau I. Porche, D.C., of Houma-Thibodaux Spine & Rehabilitation.

      . Ms. Chatagnier also argued that because 1st A Southeast's purpose was to assist clients with activities of daily living, such a request was not so out of the ordinary or unique so that she would question its purpose,

      . Other medical records were introduced as well, including those of her family doctor, Dr. Camille Pitre of Lady of the Sea Clinic; Ter-rebonne General Medical Center; Dr. Edgar L. Feinberg, II; Our Lady of the Sea Hospital; and Dr. Kenneth N. Adatto.


author: THERIOT, J.

text:
    Jerome SALOMONE v. GREATER GULF COAST AUTO AUCTIONS, INC.
    No. 2012 CA 0952.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Richard B. Eason, II, Raymond P. Ward, New Orleans, LA, for Defendants/Appellants, Greater Gulf Coast Auto Auctions, Inc. and American Home Assurance Co.
    Daren Sarphie, Metairie, LA, for Plaintiff/Appellee Jerome Salomone.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

1 ;>In this workers’ compensation case, Greater Gulf Coast Auto Auctions, Inc. (“GGCAA”), appeals a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Jerome Salomone, who was employed by GGCAA when he sustained injury. For the following reasons, we affirm in part, reverse in part, and render.

BACKGROUND

On October 4, 2006, Mr. Salomone was injured in the course and scope of his employment when his left foot was run over by a co-worker operating an auction vehicle. Mr. Salomone ceased working on January 9, 2007 and began receiving temporary total disability benefits (“TTD”) of $471.81 per week. While Mr. Salomone’s doctor released him to sedentary work on April 22, 2008, he remained on TTD for the next seventeen months. On May 21, 2009, Mr. Salomone filed a disputed claim form seeking pain management treatment, the right to choose his pain management doctor, and penalties, costs, and attorney fees for GGCAA’s refusal to provide pain management treatment. On August 20, 2009, Mr. Salomone stopped receiving TTD payments and began receiving supplemental earnings benefits (“SEB”) at zero earning capacity on September 21, 2009, equating to a reduction in benefits. GGCAA made this decision based on Mr. Salomone’s doctor’s authorization for him to do sedentary work. On October 6, 2009, Mr. Salomone filed The Injured Employee’s Supplemental and Amended Petition challenging the reduction of Workers’ Compensation benefits, challenging the change in disability status from TTD to SEB, claiming GGCAA failed to timely, authorize medical benefits, and claiming he was entitled to costs, penalties, and attorney fees.

laOn June 21, 2010, GGCAA filed a Motion to Compel Independent Medical Examination. The OWC denied said motion on August 12, 2010, finding it to be a request for a second medical opinion rather than a request for an independent medical examination. A two-day trial commenced on August 3, 2011 and reconvened on August 29, 2011, at which time the hearing officer took the matter under advisement.

A judgment was filed on October 24, 2011, finding in favor of Mr. Salomone, awarding penalties and attorney fees for untimely authorization and arbitrary and capricious discontinuation of benefits, as well as entitling Mr. Salomone to unpaid and underpaid benefits.

GGCAA appealed the judgment and asserts the following assignments of error:

1. The trial court erred in ordering the employer and its insurer to pay for the repair of Salomone’s torn rotator cuff, because undisputed medical testimony established that the rota-tor-cuff tear was not caused by the workplace accident. For the same reason, the trial court erred in penalizing the employer and insurer $2,000 for failing to reasonably controvert this claim.
2. The trial court erred in penalizing the employer and its insurer $2,000 for alleged untimely approval of psychiatric care for Salomone’s depression and anxiety, because neither Salomone nor any of his mental-health-care providers had ever submitted any records or bills to the employer and insurer’s third-party administrator for payment.
8. The trial court erred in finding that approval of pain management was untimely, because Salomone never needed any approval to change his choice of treating physicians to someone in another field or specialty, and because the employer and insurer’s third-party administrator made a good-faith effort to determine the medical necessity for pain management before approving it.
4. The trial court erred in finding that approval of Salomone’s second ankle surgery was untimely, because this would be Salomone’s second surgery, and thus the employer and insurer’s third party administrator was reasonable in seeking a second opinion before approving this surgery.
|45. The trial court erred in completely denying the employer’s reconven-tional demand with respect to Salo-mone’s frivolous claims because there was never any evidence to support these claims.
6. The trial court erred in awarding Salomone 100% of his attorney-fee claim, because a significant portion of those fees were spent pursuing frivolous claims and other claims reasonably controverted by defendants.
7. The trial court erred in finding that, despite Salomone’s capability of doing sedentary work, his earning capacity was zero when he was not temporarily totally disabled.
8.The trial court erred in awarding interest on attorney’s fees and penalties at the rate in effect on the date Salomone filed his claim, when as a matter of law, interest on penalties and attorney’s fees cannot begin to accrue until the date the penalties and attorney’s fees are awarded.

STANDARD OF REVIEW

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. See Connor v. Family Dollar Store, 09-1537, pp. 6-7 (La.App. 1 Cir. 3/26/10), 36 So.3d 339, 345, writ denied, 10-0959 (La.6/25/10), 38 So.3d 344. Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly | .¡erroneous. Bolton v. B E & K Const., 01-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

ASSIGNMENT OF ERROR NO. 1

GGCAA asserts the OWC erred in requiring GGCAA and its insurer to pay for the repair of Mr. Salomone’s torn rotator cuff and subsequently penalizing GGCAA and its insurer for failing to reasonably controvert this claim. It is undisputed that Mr. Salomone’s shoulder injury predates the accident at issue in this case. However, a pre-existing injury may still be considered a compensable injury if the employee proves that the accident aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 680 So.2d 689, 691. A presumption of causation arises when an employee proves that (1) before the accident, the injured employee had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Id. at 691.

In the case at issue, Mr. Salomone visited Dr. Hontas (his personal doctor), on April 13, 2006 regarding a shoulder injury. Dr. Hontas treated Mr. Salomone with injections. Mr. Salomone’s last visit with Dr. Hontas was on July 6, 2006. Pursuant to the accident on October 4, 2006, Mr. Salomone was prescribed crutches. On the December 4, 2006 visit to Dr. Van Deventer (GGCAA’s doctor of choice), Mr. Salomone complained of pain in his left shoulder. In January of 2007, Dr. Van Deventer performed an MRI of Mr. Salo-mone’s left shoulder and discovered a torn rotator cuff. On January 29, 2007, Dr. Van Deventer notified GGCAA of his findings. Dr. |fiVan Deventer stated in part, “[I]t is my opinion that the patient’s left shoulder pathology, specifically rotator cuff, though not related to his injury, was significantly aggravated by his convalescence of his foot, specifically the need for crutches.” Dr. Van Deventer recommended shoulder surgery in March of 2007 and again in May of 2007. Mr. Salomone had arthroscopic surgery on August 27, 2007.

Following an extensive review of the record and exhibits in this matter, we are unable to say that the OWC erred in determining that the shoulder injury was aggravated by the accident of October 6, 2006. Furthermore, the OWC did not err in penalizing the employer for failing to reasonably controvert this claim. The OWC made specific findings regarding Dr. Van Deventer’s deposition and those findings are reasonable and supported by the record.

ASSIGNMENT OF ERROR NO. 2

GGCAA asserts the OWC erred in finding GGCAA and its insurer did not timely approve psychiatric care for Mr. Salo-mone’s depression and anxiety and in subsequently penalizing the employer and insurer for said untimely approval.

On September 21, 2010, Dawn Gas-sen, claims adjuster for GGCAA, stated in her notes that she authorized mental health treatment for Mr. Salomone. As of the trial date in August 2011, GGCAA still had not paid for any of the mental health visits. The OWC made specific findings regarding Ms. Gassen’s testimony and the findings of David Hyde, a psychiatric practical nurse, and Leonard Grubstein, a family therapist. The OWC’s decision to penalize GGCAA for failure to timely pay for mental health treatment was reasonable and supported by the record. This assignment of error is without merit.

^ASSIGNMENT OF ERROR NO. 3

GGCAA asserts the OWC erred in finding GGCAA and its insurer untimely approved Mr. Salomone’s pain management care. On February 26, 2009, Dr. Van Deventer recommended pain management. On May 21, 2009, Mr. Salomone filed his disputed claim form seeking pain management treatment and the right to choose his pain management doctor. Although Dr. Van Deventer was GGCAA’s doctor of choice, GGCAA did not approve pain management until February 18, 2010. The approval was approximately one year from Dr. Van Deventer’s first recommendation and more than nine months after being served with the May 17, 2009 disputed claim. The law provides 60 days to authorize medical benefits, otherwise penalties may be assessed. La. R.S. 23:1201(E) and 1203(E). The penalty assessed by the OWC is reasonable and supported by the record. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

GGCAA asserts the OWC erred in finding GGCAA and its insurer untimely approved Mr. Salomone’s second ankle surgery. GGCAA contends it was reasonable in seeking a second opinion before approving the surgery. •

Louisiana Revised Statute 23:1203(A) obligates employers to furnish to the injured employee any treatment deemed medically necessary. Although La. R.S. 23:1201(E) sets a 60 day window for paying medical benefits, it has been construed to apply to authorizing treatment as well. See Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1186-87. Dr. Van Deventer had recommended Mr. Salomone receive a second ankle surgery on May 4, 2010. The second surgery, according to Dr. [RVan Deventer, was necessary due to the first surgery being unable to alleviate all of Mr. Salomone’s pain and complications with his ankle.

The evidence before the OWC was that after Dr. Van Deventer recommended surgery, GGCAA referred Mr. Salomone to a second orthopedic surgeon for another examination, which Mr. Salomone refused. On June 21, 2010, GGCAA filed its motion to compel examination, which the OWC denied on August 12, 2010. In September of 2010, GGCAA approved the second ankle surgery after a second opinion was rendered without an examination of Mr. Salomone. GGCAA asserts their seeking a second opinion and subsequently filing the motion to compel the examination was not done for the purpose of “doctor shopping.” Accordingly, from our view of the record, we find the OWC was not unreasonable in its ruling that GGCAA was untimely in its authorization of the surgery. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

GGCAA asserts the OWC erred in denying GGCAA’s reconventional demand. The reconventional demand filed by GGCAA states one general cause of action, which alleges plaintiffs original, supplemental, and amended petition have no merit.

The original disputed claim sought pain management treatment and the right to choose a pain management doctor. The Injured Employee’s Supplemental and Amended Petition, filed October 6, 2009, challenged the reduction of workers’ compensation benefits, challenged the disability status of Mr. Salomone, and alleged GGCAA failed to timely authorize the payment of medical benefits. Since the OWC ruled in favor of the claimant on all of the allegations enumerated in the original disputed claim and all of the allegations enumerated in The Injured Employee’s Supplemental and 1 ¡Amended Petition, the record supports the OWC’s denial of GGCAA’s reconventional demand. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

GGCAA asserts the OWC erred in awarding Mr. Salomone 100% of his attorney fee claim. Louisiana Revised Statutes 23:1201(F) allows for reasonable attorney fees for each disputed claim. Mr. Salo-mone needed the OWC’s assistance to pay for pain management treatment, to have medical benefits paid, to obtain approval for second ankle surgery, to obtain mental health treatment, and to change the disability status. The OWC ruled in Mr. Salomone’s favor on all of the above issues. The OWC is well within reason to award attorney fees, and the amount awarded is not an abuse of discretion. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

GGCAA asserts the OWC erred in finding that Mr. Salomone’s earning capacity was zero when he was not totally temporarily disabled. The accident happened on October 4, 2006. Mr. Salomone continued working at sedentary duty with GGCAA until January 2007, at which time GGCAA sent Mr. Salomone home to recuperate and began paying TTD benefits. The first foot surgery occurred on February 26, 2008. Mr. Salomone was at TTD status from February 26, 2008 until December 29, 2008. From December 29, 2008 until July 24, 2009, Mr. Salomone’s status was SEB due to his ability to perform sedentary duty. Mr. Salomone cooperated with vocational rehabilitation to find a job; however, despite his efforts and cooperation, he was unable to find employment.

The OWC found that Mr. Salomone was TTD as of July 24, 2009 to the date of the hearing based on mental disability. The OWC also found that Mr. Salomone has been physically totally, temporarily disabled since May 4, |in2010 (date of second ankle surgery). Upon reviewing the entirety of the record, including the depositions and exhibits, we cannot find the OWC was erroneous in its findings. Therefore, the findings of the OWC regarding Mr. Salomone’s earning capacity is affirmed.

ASSIGNMENT OF ERROR NO. 8

GGCAA asserts that the OWC erred in applying an incorrect judicial interest rate to the award of attorney fees and penalties. Louisiana Revised Statutes 23:1201.3 provides judicial interest on compensation shall commence from the date the compensation is due. La. R.S. 23:1201.3(A). Attorney fees and penalties are not compensation within the meaning of La. R.S. 23:1201. See Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 6 (La.7/1/97), 696 So.2d 1382, 1386. Judicial interest on penalties and attorney fees in workers’ compensation cases are not to be calculated from the date of judicial demand, but rather from the date of the hearing officer’s award of fees and penalties. Id. at 1388-1389. The award was granted on October 24, 2011. Judicial rate of interest on that date was established by the Louisiana Supreme Court at 4%. The hearing officer erred as a matter of law in granting 5.5% interest on the award of penalties and attorney fees. The OWC findings regarding the rate of interest are hereby reversed and interest on penalties and attorney fees are hereby set at 4% from the date of the award.

In Mr. Salomone’s answer to this appeal, he requests costs and attorney fees to be awarded in his favor for his expenses incurred in opposition of this appeal. We find Mr. Salomone to be successful in opposing all but one of GGCAA’s assignments of error, and we find an award of $1,500 in attorney fees to be appropriate. See Life Flight of New Orleans v. Homrighausen, 05-2538, p. 10 (La.App. 1 Cir. 12/28/06), 952 So.2d 45, 53, writ denied, 07-0558 (La.5/4/07), 956 So.2d 615.

CONCLUSION

The findings of the OWC in the case at issue were reasonably based on the evidence presented, and we do not find them to be manifestly erroneous, clearly wrong, or an abuse of discretion, except for the calculation of interest on the award of attorney fees, which we hereby set at 4% from the date of the hearing officer’s award of attorney fees. For the above reasons, we affirm the OWC trial court in part and reverse in part. We award $1,500.00 in attorney fees to Jerome Salo-mone. Costs for this appeal along with the $1,500.00 in attorney fees are assessed to the appellants, Greater Gulf Coast Auto Auctions, Inc. and American Home Assurance Co.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: PETTIGREW, J.

text:
    SUCCESSION OF James Jason HOLBROOK, Sr.
    No. 2012 CA 1655.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Richard A. Tonry, II, Slidell, LA, for Appellant, Llevonne Holbrook.
    P. David Carollo, Slidell, LA, for Appel-lee, Dianne Carlucci.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

|2Appellant, Llevonne H. Holbrook, challenges the trial court’s judgment, granting a motion for summary judgment filed by appellee, Dianne Carlucci, and invalidating the last will and testament filed on behalf of the late James Jason Holbrook, Sr. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

James Jason Holbrook, Sr. died testate on July 4, 2010. In a last will and testament allegedly executed on April 8, 2009, Mr. Holbrook named his wife, Llevonne H. Holbrook, as executrix of his estate. Following Mr. Holbrook’s death, Mrs. Hol-brook filed a petition on July 9, 2010, to have the will probated, be appointed executrix, and be put in possession of Mr. Holbrook’s estate. The will was probated, and a judgment of possession was signed by the trial court on July 14, 2010. Subsequently, on November 12, 2010, Mr. Hol-brook’s daughter, Dianne Carlucci, filed a “Petition To Set Aside Judgment Of Possession, Set Aside The Will Of The Late James Jason Holbrook, Sr. For Violations Of The Requirements Of The Notarial Will And Undue Influence.” In response to said petition, Mrs. Holbrook filed a general denial and reconventional demand concerning bank accounts that Mrs. Carlucci maintained for her father prior to his death. Mrs. Carlucci answered the reconventional demand, generally denying the allegations therein.

On July 19, 2011, Mrs. Carlucci filed a second petition to set aside the will at issue. Thereafter, on February 22, 2012, she filed a motion for summary judgment, asserting that Mr. Holbrook’s will was invalid due to the fact that the attestation clause was not dated, and, therefore, the will did not meet the statutory requirements of La. Civ.Code art. 1577. Thus, Mrs. Carlucci maintained, there was no genuine issue as to any material fact and she was entitled to summary judgment as a matter of law. Mrs. Holbrook filed an opposition to Mrs. Carlucci’s motion for summary judgment. Mrs. Holbrook acknowledged that the notary who handled Mr. Holbrook’s will inadvertently failed to put the day in the date section of the attestation clause. Mrs. Holbrook noted, however, that every page of the will was dated April 8, 2009, including the last page of the will that | .¡included the attestation clause itself. Mrs. Holbrook submitted the affidavits of the notary and one of the witnesses who both stated that Mr. Hol-brook had executed his will before them on April 8, 2009.

Following a March 28, 2012 hearing on the motion for summary judgment, the trial court took the matter under advisement. On April 5, 2012, the trial court issued written reasons for judgment as follows:

This matter came before the Court for hearing on May 28, 2012. The Court took the matter under advisement in order to review the jurisprudence on the subject.
This testament was prepared in accordance with Civil Code articles 1576 et seq. governing as to form. This Court is of the opinion that the attestation clause must be dated as provided in Civil Code article 1577.
Based upon its reading of Succession of Holloway, 531 So.2d 431 ([S Ct,] [La. ]1988) and In the matter of Succession of Hendricks, 28 So.3d 1057 (Court of Appeal, First Circuit, 2009), this Court finds that the testament is invalid as it is non-compliant with the requirements of Civil Code article 1577 due to the omission of the date in the attestation clause.
The plaintiffs are awarded the relief requested in the Motion for Summary Judgment and additionally the Court will award, in favor of the mover and against the executrix, any court costs incurred by the mover.

The trial court signed a judgment on April 25, 2012, in accordance with these findings, granting summary judgment and finding Mr. Holbrook’s will to be invalid. It is from this judgment that Mrs. Holbrook has appealed. The sole error on appeal for our review is whether the trial court erred in holding that the will was invalid because the attestation clause was not dated.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Lewis v. Morgan, 2011-2182, p. 3 (La.App. 1 Cir. 6/8/12), 93 So.3d 741, 743. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. Code Civ. P. art. |4966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806, p. 7 (La.6/25/04), 876 So.2d 764, 769 (per curiam). Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Lewis, 2011-2182 at 4, 93 So.3d at 744.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.

On appeal, Mrs. Holbrook argues that Mr, Holbrook’s will substantially conforms with the statutory formalities and that any ambiguity as to the omitted “day” is resolved by the date set forth on each page of the will and the affidavits of the notary and the witness. She maintains that the cases relied on by the trial court are distinguishable from this case and provide no support for the trial court’s ruling. Citing a third circuit decision, Succession of Songne, 94-1198 (La.App. 3 Cir. 11/2/95), 664 So.2d 556, writ denied, 95-2877 (La.2/2/96), 666 So.2d 1101, Mrs. Holbrook further asserts that because the date is set forth on each page of the will, the affidavits submitted in opposition to the motion for summary judgment are sufficient to resolve any ambiguity in the date. We are not persuaded by Mrs. Holbrook’s arguments.

|rA notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1. La. Civ. Code art. 1576. Louisiana Civil Code article 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_ day of_,_”

Article 1577 provides that a notarial testament “shall” be executed in a certain manner. The word “shall” is mandatory. La. R.S. 1:3. When a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. La. R.S. 1:4. Thus, in order to be valid as to form, (1) the testator must declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament; (2) the testator must sign his name at the end of the testament and on each separate page; and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of Article 1577(1) have been followed. In re Siverd, 2008-2383, p. 4 (La.App. 1 Cir. 9/11/09), 24 So.3d 228, 230. The primary purpose of the statute authorizing this type of will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. In re Succession of Richardson, 2005-0552, pp. 3-4 (La.App. 1 Cir. 3/24/06), 934 So.2d 749, 751, writ de nied, 2006-0896 (La.6/2/06), 929 So.2d 1265.

Moreover, although the intention of the testator as expressed in the testament must govern, the intent to make a testament, although clearly stated or proved, will be ineffectual unless the execution thereof complies with codal requirements. In re Hendricks, 2008-1914, p. 5 (La.App. 1 Cir. 9/23/09), 28 So.3d 1057, 1060, writ not considered, 2010-0480 (La.3/26/10), 29 So.3d 1256. A material deviation - from the manner of execution prescribed by the code will be fatal to the validity of the testament. Id. If the formalities prescribed for the execution of a testament are not observed, the testament is absolutely null. La. Civ.Code art. 1573.

The purpose of an attestation clause is to show the will was executed in conformity with the statute. Succession of Brown, 458 So.2d 140, 142-143 (La.App. 1 Cir.1984). The attestation clause set forth in Article 1577 requires the notary and witnesses to declare (1) the testator declared in the presence of the notary and witnesses that it (the instrument) was his will, (2) the testator signed the will at its end and on each separate page, and (3) in the presence of the testator and each other, they (the notary and witnesses) signed their names on a specified date. La. Civ. Code art. 1577(2).

In Succession of Holloway, 531 So.2d 431 (La.1988), the Louisiana Supreme Court held as follows with regard to the question of whether “the_day of February, 1984” qualified as a date:

Unless and until the Legislature says otherwise, we are unwilling to depart from our conclusion in Heffner [v. Heffner[ ] 48 La.Ann. 1088, 20 So. 281 (1896),] that “the month, without the day, is no date.” If the month without the day were considered to be a date, then presumably the year without the month and day would also have to be considered a date, and thus a will would be considered dated if nothing more than the year of execution were recited. If such were the case, the statute’s requirement that the will must be dated would not be attributed its plain and ordinary meaning. We are unwilling to disregard an express statutory requirement in this fashion, and instead adhere to the sound reasoning of the Heffner decision.

Succession of Holloway, 531 So.2d at 433.

Much like the date in question in both the Succession of Holloway and Heff-ner cases, the date in the attestation clause in Mr. Holbrook’s will contained the 17month and the year, but not the day of the month. The attestation clause provided as follows:

IN OUR PRESENCE THE TESTATOR has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the TESTATOR and each other we have hereunto subscribed our names on this _ day of April, 2009, in Covington, Louisiana.
WITNESSES:
[signed ]
Vicki M. Wilson
[signed ]
Carolyn Garlick
[signed ]
PEGGY G. VALLEJO, Bar No. 26539
NOTARY PUBLIC
428 West 21st Avenue
Covington, LA 70433
My Commission Expires at Death

Although Mrs. Holbrook attempted to remedy this defect in the attestation clause by submitting affidavits stating that Mr. Holbrook executed his will before the notary and two witnesses on April 8, 2009, and that the “8” in the date of the attestation clause was inadvertently omitted, additional evidence on this issue is precluded. See In re Succession of Richardson, 2005-0552 at 4-5, 934 So.2d at 751-752 (failure of will to satisfy requirement, for valid notarial will, of containing attestation clause or clause of declaration signed by the witnesses and the notary, could not be cured by having the witnesses and the notary appear before the court and testify that they witnessed the signing, that the decedent had signed without fraud or duress, and that they signed the document in the presence of each other); Succession of English, 508 So.2d 631, 633 (La.App. 2 Cir.1987) (affidavit, which accompanied petition for probate of statutory will, could not cure total lack of attestation clause, even though affidavit stated compliance with requirements for attestation clause. Such an interpretation would render meaningless the mandatory requirements of the statute and do violence to the jurispruden-tially recognized purpose of the attestation clause.)

Moreover, we find Succession of Songne, the case cited by Mrs. Holbrook in support of her position on this issue, distinguishable from the facts in the instant case. In Succession of Songne, the will had a date on each page. However, on one page the year was “1991” and on another page it was dated “1992.” The third circuit noted: |s“The Louisiana Supreme Court has held that ‘if the will bears two different dates, it is not stricken with invalidity.’ Rather, extrinsic evidence may be introduced to prove which is the correct date.” Succession of Songne, 94-1198 at 2, 664 So.2d at 558 (citations omitted). Thus, the will in Succession of Songne is unlike Mr. Hol-brook’s will in which the attestation clause was not dated at all. Without a date in the attestation clause, the will fails to comply with the requirements of Article 1577.

We have thoroughly reviewed the evidence in the record and agree with the trial court’s conclusion that summary judgment was warranted in this case. Mrs. Holbrook’s arguments on appeal are without merit. Mrs. Holbrook failed to bear her burden of producing evidence that there were genuine issues of material fact remaining as to any of the issues relative to the validity of Mr. Holbrook’s will. Accordingly, summary judgment was appropriate.

As the trial court correctly observed, the attestation clause must be dated as provided in Article 1577. The trial court continued, finding that the will was invalid as it was non-compliant with the requirements of Article 1577. In light of the omission of the date in the attestation clause and the non-compliance with the formalities of Article 1577, we are unable to find legal error in the trial court’s determination that Mr. Holbrook’s will is invalid. Although we recognize that the result mandated herein may seem harsh, we are bound to follow the law applicable to and governing such instruments. As previously recognized by this court, if there is any area of our civil law in which the goal of certainty of result has particular significance, it is that of succession. In re Hendricks, 2008-1914 at 5, 28 So.3d at 1060 (citing J. Gaidry’s concurrence in In re Succession of Richardson, 2005-0552 at 1, 934 So.2d at 752). Accordingly, we affirm the April 25, 2012 judgment of the trial court, granting summary judgment in favor of Mrs. Carlucci and invalidating the last will and testament of James Jason Holbrook, Sr.

IsDECREE

For the above and foregoing reasons, we affirm the trial court’s April 25, 2012 judgment and assess all costs associated with this appeal against appellant, Llevonne H. Holbrook.

AFFIRMED.

      . In Heffner, the Louisiana Supreme Court considered a case involving an olographic testament wherein the month and year of the execution were given, but not the day of the month. The court concluded that the inclusion of the day of the month was essential and that the will was invalid noting, "The mandate of the Code is positive, without, and purposely without, any qualification or exception. The will must be dated, and the month, without the day, is no date.” Heffner, 48 La.Ann, at 1090, 20 So. at 282.