author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Johnell MILTON.
    No. 13-KA-672.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Terri R. Lacy, Matthew B. Derbes, Assistant Attorneys General, Louisiana Department of Justice, Criminal Division, Baton Rouge, Louisiana, for PlaintiffAp-pellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

^Defendant, Johnell Milton, appeals his attempted second degree murder conviction from the 40th Judicial District Court, Division “B”. For the following reasons, we affirm Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On April 22, 2010, Blaine Morris and several friends went fishing from approximately 7:00 a.m. until nightfall. Terrance Bethancourt, the victim, was with Mr. Morris that day. Mr. Morris explained that he had known the victim for more than 15 years, that he is his “best friend,” and that they “hung together every day.” Mr. Morris also explained that he had known Defendant for “maybe seventeen years.”

Also fishing with Mr. Morris and the victim that day was Mr. Morris’ brother-in-law, Coy Boudin. Mr. Boudin explained that he had known the victim his entire life, and that he is his cousin, his “best friend,” and is “like a brother.” Mr. Boud-in had also known Defendant for 10 or 15 years from the Edgard community.

After returning home from fishing that night, Mr. Boudin proceeded to the Hot Spot Bar between 10:00 and 10:30 p.m. After about 20 or 30 minutes, and two |sor three cups of vodka, Mr. Boudin realized he had locked his keys in his car. He called Mr. Morris and the victim for assistance, who arrived at the bar around 11:00 p.m.

While the men attempted to unlock the car, Mr. Morris observed Defendant park and exit his car, visibly angry. Defendant exclaimed, ‘You all p* * *y a* * n* * * *rs out here chilling like they ain’t nothing going on, you know.” He continued, ‘You all don’t believe I will burn you all. Pm doing this for my home boys, Little Gip and Jock. My home boys doing twenty-five years in jail behind you all ⅜ ⅜ ⅜ ^ ⅜ ⅜ ^

Mr. Boudin, who was seated in the passenger seat of the victim’s truck, heard Defendant say that he was going to “Frank Lucas” one of the men. Mr. Boud-in explained that “Frank Lucas” refers to a character by that name in the movie “American Gangster,” in which Frank Lucas shoots a person in public.

Defendant then shook everybody’s hand, got back in his car, and said he was going home. He backed up for a moment, then pulled the car back up, got out again, and said, “You all mother f* * *ing n* * * *rs laughing at me, huh? You all don’t believe I’ll come back -with that forty caliber and burn you all mother f* * * *rs, huh?” He then left.

With the efforts to unlock Mr. Boudin’s car unavailing, the police were called for assistance. An officer responded to the Hot Spot at 12:37 a.m. on April 23, 2010, unlocked the car, and departed at 12:41 a.m.

After the car had been unlocked, Mr. Morris, Mr. Boudin, and the victim remained outside the bar with several other friends. The victim sat in the driver’s seat of his truck, along with Mr. Boudin in the passenger seat.

Around 1:30 a.m., Mr. Morris stood outside talking with Ms. Chasarah Bovie, when she suddenly said, “Lord, that boy got a gun.” Mr. Morris turned to |4see Defendant walking from his car with a gun. Mr. Morris observed Mr. Boudin and Mr. Jackson flee the victim’s truck, while the victim, unable to escape, ducked down. Defendant approached the driver’s window and said, “I told you I’ll burn you all p* * *y a* ⅜ f:: * *ing n* * * *rs for nothing.” He then fired his gun at the victim. Although the gun jammed a few times, Defendant managed to discharge five or six rounds while the victim attempted to drive away. As the victim attempted to drive away, Mr. Morris and Alonzo Edwards ran alongside the truck, beating on it, trying to get the victim to stop the truck. The victim, who had been shot and was bleeding from his arm and chest, stopped the truck and was moved to the passenger side; Mr. Edwards got in the driver’s seat, and Mr. Morris got in the rear seat. Mr. Morris called 911, while Mr. Edwards drove the vehicle to the Aca-dian Ambulance substation.

Around 2:00 a.m., Deputy Michael Harris of the St. John the Baptist Parish Sheriffs Office responded to the Hot Spot Bar. On the ground outside the bar, the deputy located one projectile fragment, two live rounds, and five casings. A sixth casing was later discovered inside the victim’s vehicle. The ballistics evidence was determined to be .40 caliber.

After further investigation, Detective Ann Capps of the St. John the Baptist Parish Sheriffs Office obtained an arrest warrant for Defendant approximately nine hours after the shooting. Defendant was then arrested at 11:00 a.m. on April 23, 2010. In a recorded interview, Defendant explained that he had been advised of rights, that he understood them, and that he wished to waive them and provide a statement.

In his statement, Defendant explained that he exited the Hot Spot under the influence of alcohol and, after an argument provoked by him, left the scene and 15then returned. He explained he had his gun with him the entire time. Upon his return, Defendant discharged his .40 caliber weapon three times at the victim who was four or five feet away in the driver’s seat of his vehicle. Then, out of respect for his relationship with the victim’s family and God, Defendant explained that he ceased targeting the victim, pointed the weapon in the air, and discharged three rounds. The victim, who was wounded, drove away. After realizing what he had done, Defendant prayed for the victim’s survival. Defendant then left the scene, drove to Baton Rouge, and disposed of the weapon.

On June 4, 2010, the St. John the Baptist Parish District Attorney filed a bill of information, charging Defendant with attempted second degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1. On June 14, 2010, Defendant was arraigned and entered a plea of not guilty.

On September 8, 2010, the trial court granted the District Attorney’s motion to recuse the St. John the Baptist Parish District Attorney’s office. Then, in a letter dated October 6, 2010, the Louisiana Attorney General informed the trial court that, in accordance with La.C.Cr.P. art. 680, et seq., the case had been “certified to [the attorney general] for the appointment of a District Attorney Ad Hoc.” In this same letter, pursuant to La.C.Cr.P. art. 682, the attorney general accepted the appointment as the District Attorney Ad Hoc.

On October 21, 2010, the defense filed a “Motion for Psychiatric Examination.” Then, on November 3, 2010, a St. John the Baptist Parish Grand Jury issued an indictment charging Defendant with obstruction of justice in violation of La. R.S. 14:130.1 (count one), second degree murder in violation of La. R.S. 14:30.1 (count two), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count three). On November 4, 2010, the court stayed Rail proceedings, including the arraignment, until a competency hearing could be conducted.

In a letter dated December 13, 2010, the Louisiana Attorney General, acting as District Attorney Ad Hoc, dismissed the charge of attempted second degree murder contained in the original bill of information, which was filed on June 4, 2010, pursuant to La.C.Cr.P. art. 691.

Thereafter, on January 5, 2011, a competency hearing was held. At the conclusion of the hearing, the trial court found Defendant incompetent to stand trial. The court ordered that Defendant be committed to the East Feliciana Mental Health Facility for a period of 90 days. After 90 days, Defendant’s mental health would be reevaluated.

On April 6, 2011, the court re-evaluated Defendant and determined that he still lacked the mental capacity to stand trial but found it “likely” that his capacity could be “restored” within 90 days as a result of in-jail treatment. Thus, the trial court ordered the Department of Health and Hospitals to provide, in accordance with La.C.Cr.P. art. 648(A)(2), immediate jail-based treatment for Defendant.

After several delays, on February 17, 2012, pursuant to La.C.Cr.P. art. 561, Defendant filed a “Motion to Change Plea to ‘Not Guilty and Not Guilty by Reason of Insanity.’ ” On March 7, 2012, after the court re-evaluated Defendant Land found him competent to stand trial, Defendant changed his plea from not guilty to not guilty and not guilty by reason of insanity.

On August 20, 2012, the State dismissed count one and amended count two, reducing it to a charge of attempted second degree murder in violation of La. R.S. 14:27 and 14:30.1. That same day, the trial court granted the defense’s motion to sever the two remaining charges.

On August 21, 2012, Defendant proceeded to trial on the charge of attempted second degree murder. Defendant was re-arraigned and entered a plea of not guilty and not guilty by reason of insanity. On August 22, 2012, a 12-person jury unanimously found Defendant guilty as charged.

On September 5, 2012, the State filed a habitual offender bill of information, alleging Defendant to be a second felony offender. On September 7, 2012, Defendant filed a “Motion for Judgment of Acquittal and Alternatively for a New Trial.” On September 17, 2012, the trial court denied the motions. Also on that day, Defendant was arraigned on the habitual offender bill and denied the allegations therein.

On November 13, 2012, Defendant filed a “Motion to Deviate from the Mandatory Minimum Sentence.” The sentencing hearing was held on November 15, 2012, at which defense counsel explained the “Motion to Deviate” would not be triggered until the habitual offender adjudication had been completed and sentence had been imposed. Also that day, on the attempted second degree murder conviction, the trial court sentenced Defendant to 40 years at hard labor without benefit of parole, probation, or suspension of sentence.

On December 18, 2012, the trial court adjudicated Defendant a second felony offender. On January 23, 2013, the trial court vacated Defendant’s original [ ^sentence and imposed an enhanced sentence of 40 years at hard labor without benefit of parole, probation, or suspension of sentence.

On that same day, after sentencing, defense counsel noted that a notice of appeal had not been filed in regard to Defendant’s underlying conviction and sentence. Counsel informed the court of his intention to file a motion for an out-of-time appeal in relation to the original conviction and sentence. The court stated that it would grant such motion. Defense counsel then informed the court of his intention to file a notice of appeal relative to the habitual offender adjudication and sentence. Only one motion for appeal was filed and granted on January 30, 2013. Defendant did not raise on appeal any issues relating to the habitual offender proceedings.

ASSIGNMENTS OF ERROR

On appeal, Defendant raises the following assignments of error: 1) there was insufficient evidence to convict him of attempted second degree murder; 2) the trial court erred in denying his motion to suppress statement; and 3) the trial court erred by denying his challenges for cause of jurors Margaret Schleismann, Allison Schexnayder, Nancy Rome and Lee McGuire.

LAW AND ANALYSIS

Sufficiency of Evidence

In this assignment of error, Defendant argues that his conviction is not supported by the evidence, since no rational trier of fact could have found that the defense failed to carry its burden of proving by a preponderance of the evidence that Defendant was insane at the time of the offense.

In response, the State argues that Defendant’s claim of insanity at the time of the offense is contradicted by the testimony of Drs. Charles Vosburg and Robert Storer, as well as by Defendant’s actions during and after the shooting.

| qIn Louisiana, the law presumes a criminal defendant is sane. State v. Abbott, 11-1162 (La.App. 5 Cir. 5/31/12); 97 So.3d 1066, 1068, citing La. R.S. 15:432. To rebut this presumption of sanity and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. Id., citing La.C.Cr.P. art. 652. This burden is not borne by proving the mere existence of a mental disease or defect. See Id. Rather, to be exempted from criminal responsibility, the defendant must show he suffered a mental disease or defect which prevented him from distinguishing between right and wrong at the time he committed the conduct in question. Id., citing La. R.S. 14:14.

The determination of sanity is a factual matter. Id. In considering an accused’s plea of not guilty and not guilty by reason of insanity, the trier of fact must first determine whether the State has proven the essential elements of the charged offense beyond a reasonable doubt. Id. at 1068-69. The trier of fact may then proceed to the determination of whether the defendant was incapable of distinguishing between right and wrong at the time of the offense. Id. at 1069.

All evidence, including both expert and lay testimony, along with the defendant’s conduct and actions before and after the crime, may be considered in determining whether the defendant has met his burden of proof. Id. On review of a claim for sufficiency of evidence in an action where an insanity defense has been raised, the appellate court, applying the standard outlined in Jackson v. Virginia, must determine whether under the facts and circumstances of the case, any rational fact-finder, viewing the evidence in a light most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Id.

|1flIn order to prove attempted second degree murder, the State must establish beyond a reasonable doubt that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. State v. Robertson, 11-1017 (La.App. 5 Cir. 5/31/12); 98 So.3d 401, 406, writ denied, 12-1432 (La.1/11/13); 106 So.3d 547. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Id. at 405. Specific criminal intent, as a state of mind, need not be proven as fact but may be inferred from the circumstances and the actions of the accused. Id. For instance, the specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing in the direction of the victim. Id. In Robertson, this Court found the evidence was sufficient to support a conviction for attempted second degree murder where the defendant discharged a .45 caliber handgun seven times into a vehicle containing two occupants. Id. at 406.

In the present case, Defendant was charged with and convicted of attempted second degree murder in violation of La. R.S. 14:27 and 14:30.1. Both Mr. Morris and Mr. Boudin testified that Defendant levied threats that he would shoot someone that night. Mr. Morris even heard Defendant specify that he would use a .40 caliber weapon. Soon thereafter, both Mr. Morris and Mr. Boudin observed Defendant discharge a handgun several times at the victim, who was seated in his vehicle. The subsequent police investigation revealed that a .40 caliber weapon had been used. And most notably, Defendant himself confessed that he aimed his .40 caliber handgun at the victim and discharged it several times from a distance of four or five feet.

After reviewing the testimony of several witnesses, including Defendant himself, in addition to the physical evidence, we find the evidence was sufficient |nfor any rational trier of fact to conclude beyond a reasonable doubt that Defendant discharged a handgun several times at the victim. Such an act, we find, established that Defendant possessed the specific intent to kill and constituted an overt act committed in furtherance of that goal. We will now consider whether Defendant bore his burden of proving by a preponderance of the evidence that he was insane at the time of the offense.

At trial, Ms. Brenda Milton, Defendant’s mother, testified that Defendant has a history of mental illness. Ms. Milton explained that Defendant is a delusional paranoid schizophrenic, psychotic, and suffers from memory loss. She explained that the onset of these illnesses began on November 27, 1999, when Defendant suffered a severe head injury in a car accident, being ejected through the windshield and thrown 50 feet. Defendant underwent surgery, and for four to six months thereafter, lost the use of one leg and arm, as well as suffered memory loss.

The defense called Dr. Charles Vosburg, an expert in the field of forensic psychology, who had evaluated Defendant three times to determine if he was competent to proceed to trial. Dr. Vosburg explained that as a result of the car accident, Defendant sustained major damage to the left temporal region of his brain, requiring neurosurgery. The doctor added that an injury to this region of the brain may result in seizures, as well as frequent mood problems, such as depression, anger, rage, irritability, poor judgment, poor insight, and poor impulse control. Since the accident, Defendant had suffered from seizures and had displayed “rage attacks.”

Dr. Vosburg also observed that since the injury, the severity and frequency of Defendant’s assaultive behavior had dramatically escalated. Prior to his injury, Defendant had two criminal convictions: battery and resisting arrest. And, Defendant’s mother testified that as time progressed after the surgery, her son’s 112mental condition deteriorated, where he was always angry and could not control himself. Ms. Milton described several incidents where Defendant was involved in physical altercations. These included Defendant striking two people and dragging his mother down steps. Consequently, Ms. Milton had Defendant admitted to the psychiatric ward at Charity Hospital, where he was diagnosed with schizophrenia. Dr. Vos-burg explained that he disagreed with this diagnosis and believed that Defendant was exaggerating his claimed memory problems, where the doctor did not observe any evidence of short term memory loss.

In rebuttal, the State called Dr. Robert Storer, an expert in the field of clinical forensic psychology, who, after Defendant was indicted in this matter, evaluated him seven to ten times at the East Feliciana Hospital. Dr. Storer concurred with Dr. Vosburg’s determination that Defendant’s assaultive behavior dramatically escalated after the surgery. Dr. Storer also agreed with Dr. Vosburg’s opinion that Defendant’s claims of memory loss were exaggerated, where he too did not observe any evidence thereof. In fact, at each of their meetings, Dr. Storer noted that Defendant was able to recognize the doctor and recall details of their previous meetings.

In an effort to determine if and to what degree Defendant was exaggerating his symptoms, Dr. Storer administered the Structured Inventory of Malingered Symp-tomology (“SIMS”) test. The SIMS test assesses whether a person is “malingering,” a medical term that refers to a condition in which a person either exaggerates or fabricates symptoms in order to gain a benefit or avoid a detriment.

The test is scored on five different scales. On the psychosis scale, any score greater than one suggests malingering. Defendant scored nine. On the neurologic impairment scale, any score greater than two suggests malingering. | ^Defendant scored 12. On the amnestic disorder scale (memory loss), any score greater than two suggests malingering. Defendant scored 11. On the low intelligence scale, any score greater than two suggests malingering. Defendant scored three. And on the affective disorder scale, any score greater than five suggests malingering. Defendant scored five. In addition, an overall score on the SIMS test is calculated, which Dr. Storer explained is the most reliable indicator for malingering. Any score greater than 14 suggests malingering. Defendant scored 40.

On appeal, Defendant maintains that he bore his burden. In support of his position, he relies on Dr. Vosburg’s testimony that “some people with [a] severe mood disorder will, when it elevates to the psychotic proportion or out of touch with reality proportion!,] ... [experience] some difficulty differentiating right from wrong.” Because Defendant sustained a brain injury that often results in mood problems, he argues he could not differentiate right from wrong.

Dr. Vosburg’s testimony indicates that only a limited number of people with a severe mood disorder experience difficulty differentiating right from wrong. The doctor did not specify that Defendant is included in this limited number, and he did not testify that Defendant suffered from a “severe” mood disorder or that Defendant had any difficulty differentiating right from wrong. He merely explained that Defendant sustained an injury to the region of his brain that frequently results in mood problems. Thus, we find Defendant’s position on this point is not supported by the evidence.

Defendant also points to his diagnosis of schizophrenia as evidence of his alleged insanity. Although Defendant’s mother testified that he was diagnosed with schizophrenia, Dr. Vosburg testified that he disagreed with this diagnosis. Dr. Vos-burg was also skeptical of Defendant’s claim that he suffered from memory | uloss. The doctor failed to observe any indications of a short term memory deficit and concluded that Defendant was exaggerating this symptom. The State’s expert witness, Dr. Storer, concurred in this assessment. Dr. Storer also did not observe any loss of memory, and the results of the SIMS test suggested that Defendant was either fabricating or exaggerating his symptoms.

Defendant also relies on the escalation in his assaultive behavior as evidence of his alleged insanity. Although Defendant’s mother and both doctors observed this escalation in his behavior, neither doctor testified as to any correlation between this and an inability to distinguish right from wrong. A propensity to commit wrong acts does not necessarily entail an inability to differentiate right from wrong.

Furthermore, we find Defendant’s actions during and after the shooting do not support a finding of insanity. The evidence adduced at trial established that Defendant, albeit for unclear reasons, appeared on the scene angry and yelling, and threatened the victim and his friends. According to Defendant, he was armed at this time, but he left the scene without resorting to violence. Yet, when he returned to the scene, he carried out his threat by shooting the victim.

If Defendant was armed during the initial encounter, as he contends, but left the scene and returned before carrying through with his threat, we find this delayed consummation of the threat exhibits a degree of self-control inconsistent with a claim of insanity. On the other hand, even if Defendant was not armed during the initial encounter and left to retrieve his weapon, this, too, demonstrates a degree of calculation inconsistent with insanity.

After firing his weapon three times at the victim, Defendant, apparently realizing what he had done, shifted his aim and discharged the remaining rounds into the air, as he explained, out of respect for his relationship with the victim’s 1^family and God. Defendant then drove to Baton Rouge and disposed of the weapon. Then, in his statement, given within 24 hours of the shooting, Defendant declared that he felt guilty for what he had done and that he prayed for the victim’s survival.

Defendant’s decision to shift his aim away from the victim, his subsequent feeling of guilt, prayers for the victim, flight to Baton Rouge, and disposal of the weapon all demonstrate that Defendant had a guilty conscience and recognized his culpability for his actions. See State v. Jones, 12-750 (La.App. 5 Cir. 5/16/13); 119 So.3d 250, 257 n. 8 (finding a defendant’s flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience). Thus, we find that through his actions, Defendant displayed a functioning ability to distinguish right from wrong.

Viewing the foregoing evidence in a light most favorable to the prosecution, we find that any rational trier of fact could have concluded that Defendant failed to prove by a preponderance of the evidence that he was unable to distinguish between right and wrong at the time of the offense.

Challenges for Cause

In this assignment of error, Defendant argues that the trial court erred in denying his challenges for cause as to four prospective jurors. The State responds that the trial court did not abuse its discretion in denying Defendant’s challenges for cause.

The Sixth Amendment to the United States Constitution guarantees the accused the right to trial by an impartial jury. State v. Munson, 12-327 (La.App. 5 Cir. 4/10/13); 115 So.3d 6, 12, writ denied, 13-1083 (La.11/22/13); 126 So.3d 476. Further, La. Const. Art. I, § 17 guarantees the accused the right to full voir dire examination of prospective jurors and the right to challenge those jurors 1ir,peremptorily. La.C.Cr.P. art. 797 sets foi'th the grounds for which a juror may be challenged for cause.

In ruling on challenges for cause, the trial judge is vested with broad discretion; his ruling will be reversed only when a review of the entire voir dire reveals that the judge’s exercise of discretion was arbitrary and unreasonable with resultant prejudice to the accused. Munson, 115 So.3d at 12. On appeal, to prove an error warranting reversal of both the conviction and sentence, a defendant must show that he exhausted all of his peremptory challenges and that the trial court erroneously denied a challenge for cause. State v. Mickel, 07-47 (La.App. 5 Cir. 5/29/07); 961 So.2d 516, 522, writ denied, 07-1422 (La.1/7/08); 973 So.2d 732.

In the instant case, since Defendant was charged with an offense that was punishable necessarily by imprisonment at hard labor, he was entitled to 12 peremptory challenges pursuant to La.C.Cr.P. art. 799. However, a review of both the minute entry and the transcript reveals that Defendant did not exhaust all of his peremptory challenges, using only 11 of 12. As a result, Defendant is precluded from obtaining relief on this claim, and we choose not to address the issues of whether the trial court erred in denying Defendant’s challenges for cause. See State v. Koon, 96-1208 (La.5/20/97); 704 So.2d 756, 767, cert. denied, 522 U.S. 1001, 118 S.Ct. 570,139 L.Ed.2d 410 (declining to consider defendant’s claim that trial court erred in denying defense challenge for cause due to defendant’s failure to exhaust peremptory challenges).

Denial of Motion to Suppress

In this assignment of error, Defendant argues that the trial court erred in denying his motion to suppress his statement. He contends his statement should |17have been suppressed because he lacked the mental capacity to knowingly and voluntarily waive his rights.

The State responds that the evidence indicated Defendant understood his rights and that he knowingly and voluntarily waived them. Consequently, the State submits that the trial court did not abuse its discretion in denying Defendant’s motion to suppress.

On March 19, 2012, Defendant filed a “Motion to Suppress Statement,” in which he sought to have his statement suppressed on numerous grounds, one of which was due to a mental disease or defect and, therefore, lacked the capacity to waive his rights. On May 31, 2012, the trial court denied this motion. Defendant objected and now seeks review of the denial on appeal.

When ruling on a motion to suppress, trial courts are vested with great discretion. State v. Smith, 11-638 (La.App. 5 Cir. 3/13/12); 90 So.3d 1114, 1120. Thus, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. Also, a trial court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the defendant’s confession are accorded great weight and will not be disturbed unless they are not supported by the evidence. In reviewing a trial court’s ruling on a pretrial motion to suppress, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing. Id.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. Id. In cases involving allegations of diminished mental 118capacity, a defendant has the burden of proving the existence of any mental abnormality that might render his confession per se involuntary. State v. Pugh, 02-171 (La.App. 5 Cir. 10/16/02); 831 So.2d 341, 352. The voluntariness of a statement is determined on a case-by-case basis and is based upon a totality of the circumstances. Smith at 1120-21.

Because Defendant’s statements were offered while he was in custody, the first issue to be addressed is whether he was adequately advised of his constitutional rights. In State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07); 955 So.2d 742, 752, writ denied, 08-2432 (La.1/30/09); 999 So.2d 754, this Court determined that the defendant had been properly advised of his Miranda rights when testimony established that the defendant had been read his rights several times—upon his arrest, upon his placement in the police vehicle, and immediately prior to his confession— and a rights of arrestee form had been executed which was specifically referenced at the beginning of his confession.

Soon after Defendant’s arrest, Detective Jerry Fountain of the St. John the Baptist Parish Sheriffs Office advised Defendant of his rights with a rights of arres-tee form. At the suppression hearing, Detective Fountain testified that he had no reason to believe Defendant did not understand his rights. Defendant signed the form, attesting that he understood his rights and that he was willing to waive them. Then, before providing his statement, Defendant again confirmed that he understood his rights and was willing to answér questions without an attorney.

Although the defendant in Allen was advised of his rights several times, and the record in the instant case reflects Defendant was advised of his Miranda rights only once, there is no indication that this advisal was inadequate. The record | ^indicates that, in conformity with Miranda, Defendant was advised of the following:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer for advice before you answer any questions and you may have the lawyer with you during questioning. If you want a lawyer during questioning but cannot afford one, a lawyer will be provided for you at no cost to you prior to questioning. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time in order to get the advice of a lawyer or for any other reason you may have.

In view of the foregoing, we find Defendant was satisfactorily advised of his Miranda rights.

The next matter, then, is whether Defendant’s waiver of those rights was intelligent and voluntary. This is the crux of Defendant’s argument. Defendant contends his waiver of rights was neither intelligent nor voluntary because he lacked the capacity to make such a waiver due to a mental disease or defect.

This Court has recognized that a diminished intellectual capacity does not, alone, vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Pugh, 02-171 (La.App. 5 Cir. 10/16/02); 831 So.2d 341, 352-53. The critical factor is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Id.

For instance, in State v. Green, 94-0887 (La.5/22/95); 655 So.2d 272, 281-82, the Louisiana Supreme Court determined the defendant’s waiver of his rights was valid, even though the defendant was “mildly retarded,” had a 12(lmental age of ten years, and suffered from “brain dysfunction.” In fact, it was even the forensic psychology expert’s opinion that the defendant had been unable to understand his rights as read to him by the interrogating officers. Id. at 282. Conversely, the officers testified that they believed the defendant knowingly waived his rights. Id. at 281.

In concluding that the State had met its burden of showing the defendant validly waived his rights, the supreme court relied on several factors. First, the court noted the circumstances surrounding the defendant’s interrogation, specifically that the defendant initially attempted to “extricate himself from culpability for the murder, and the evolution of his statements over time, in response to new facts presented [defendant] by the detectives, reveal[ed] a mental agility and adaptability which cannot be readily associated with [a] diminished mental capacity....” Id. at 282.

The court also observed that extrinsic facts, i.e., the location of the gun, the details of the crime scene, etc., corroborated the defendant’s confession. Id. at 283. Although the accuracy of the defendant’s confession was not the object of the court’s inquiry, the court reasoned that where a defendant claims his mental processes are so dysfunctional as to preclude a full understanding of his rights, “any facts which shed light upon the functioning of that defendant’s mental processes are relevant and pertinent evidence.” Id.; accord State v. Brooks, 92-3331 (La.1/17/95); 648 So.2d 366, 374 (finding extrinsic corroboration is “an additional factor ... to consider in evaluating the clarity of [a defendant’s] mental processes at the time of his confession.”). Thus, the court found the defendant’s capacity to accurately recall specific details of the crime scene was a factor bearing upon his ability to understand his rights. Id. at 283.

121 Lastly, the court found the defendant’s criminal history — specifically, his repeated exposure to his Miranda rights — was another factor supporting the determination that defendant understood his rights. Id. The court found the defendant’s familiarity with the criminal justice process suggested that he was not “a young man suddenly injected into a foreign environment, but rather showed that [the defendant’s] custodial interrogation was an experience to which he was not a stranger.” Id.

Similarly, in State v. Trudell, 350 So.2d 658, 662-63 (La.1977), the Louisiana Supreme Court concluded that the defendant’s waiver of his Miranda rights was valid, even though he was “mentally retarded,” “psychotic,” “easily led and very suggestible,” and had a mental age of nine years. The defendant in Trudell had also twice been found incompetent to stand trial before ultimately being declared competent. Id. at 660-61.

In concluding that the State had met its burden of showing the defendant validly waived his rights, the supreme court relied on several factors. First, the interrogating officers offered unrebutted testimony that the statements were made voluntarily. Id. at 662-63. Second, the sanity commission found the transcripts of the defendant’s statements did not reveal any evidence of psychosis. Id. And third, the defendant provided “coherent and responsive answers with only very minor inconsistencies” during the interrogation. Id. at 663. The court found his statements revealed that he “was lucid, oriented as to time and place, and apparently in control of his faculties at that time.” Id.

Likewise, in the instant case, we find several factors indicate Defendant possessed the mental capacity to knowingly and voluntarily waive his rights. First, the record reveals that Defendant, unlike those in Green and Trudell, is highly educated. Defendant obtained a bachelor’s degree in computer science from [ 22Grambling University in 1996. And following his brain injury in 1999, he returned to school and obtained an associate’s degree in instrument process and technology.

Second, in his interrogation, we find Defendant displayed a capacity to accurately recall specific details of the crime and an ability to communicate them cogently. Defendant provided responsive answers to the detective’s questions, the details of which were corroborated by eyewitness testimony and physical evidence. Defendant stated that he fired approximately six rounds, and the ballistics evidence indicated six rounds had been discharged on the scene. Defendant stated he used a .40 caliber weapon. Mr. Morris testified that Defendant threatened to use a .40 caliber weapon; and, the ballistics evidence confirmed that a .40 caliber weapon had been used.

Third, as in Trudell, the interrogating officers in the present case offered unre-butted testimony that Defendant’s statement was made knowingly and voluntarily. Both Detective Fountain and Detective Capps testified at the suppression hearing that they had no reason to believe Defendant did not understand his rights. And, this Court has recognized that testimony of an interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. See State v. Cambrice, 10-26 (La.App. 5 Cir. 4/26/11); 64 So.Sd 363, 376, writ denied, 11-1181 (La.3/23/12); 84 So.3d 568.

Fourth, like Green, the record here reveals that Defendant is no stranger to the criminal justice system. Defendant was adjudicated a second felony offender, having been previously convicted of possession of cocaine.

And lastly, there is no indication Defendant waived his rights or offered his statement under the influence of fear, intimidation, menaces, threats, inducements, IgjQr promises. On his waiver of rights form and in his statement, Defendant acknowledged that he had not been promised or threatened to waive his rights. Additionally, Detective Fountain testified at the suppression hearing that Defendant was not coerced into waiving his rights.

In view of the foregoing, we find the State met its burden of showing Defendant understood Miranda his rights and voluntarily waived them. As a result, we conclude that the trial court did not abuse its discretion in denying Defendant’s motion to suppress his statement.

Error Patent Discussion

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). There are no errors patent that require corrective action.

DECREE

For the foregoing reasons, Johnell Milton’s conviction and sentence are affirmed.

AFFIRMED.

      . Mr. Boudin testified that after Defendant discharged the weapon once, it jammed. It was at this time that Mr. Boudin jumped out of the truck and fled.

      . The indictment erroneously listed the charge as second degree murder. The indictment was later amended to reflect the charge of attempted second degree murder.

      . La.C.Cr.P. art. 691 provides:
      The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court.
      Although it appears the Attorney General's letter was filed with the clerk of court, the minutes do not reflect that the dismissal was entered therein.

      .La.C.Cr.P. art. 561 provides:
      The defendant may withdraw a plea of “not guilty” and enter a plea of "not guilty and not guilty by reason of insanity,” within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . The 11 prospective jurors the defense struck peremptorily were: 1) Margaret Schleismann, 2) Alison Schexnayder, 3) Nancy Rome, 4) Nolan Jacob, 5) Lee Maguire, 6) Arlene Martin, 7) Linda Ladner, 8) Jammi Amedee, 9) Paul Goodrum, 10) Neil McKendall, and 11) Felicia Hurst.

      . Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

      . In Miranda, 384 U.S. at 478-79, 86 S.Ct. 1602, the United States Supreme Court held:
      [W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, ... he must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him pri- or to any questioning if he so desires.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    Ronald J. DARCE v. Jaime L. ROBERTS and Asi Lloyds.
    No. 13-CA-917.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.
    Burton G. Klein, Attorney at Law, Me-tairie, Louisiana, for Appellant, Ronald J. Darce.
    Jason P. Foote, Attorney at Law, Me-tairie, Louisiana, for Appellee, Jaime L. Roberts and Asi Lloyds.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAYOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|gOn appeal, an independent contractor challenges the trial court’s grant of summary judgment and dismissal of his suit, in favor of a property owner and her insurance company. For the following reasons, we affirm.

FACTS

On July 27, 2012, Ronald J. Darce (“Darce”) filed a petition for damages alleging that defects in the premises owned by Jaime L. Roberts (“Roberts”) and insured by ASI Lloyds (“Lloyds”), were the cause of injuries he received when he fell through the floor in Roberts’ dining room. Darce was on the property at the request of Destry Hoban (“Hoban”), Roberts’ neighbor, who Roberts occasionally hired to perform repairs in her home. Hoban, in turn, enlisted Darce, who owned a truck, to help with the demolition and to haul away debris generated by the remodel.

According to the affidavits, Hoban and Darce were in the process of removing tile flooring from the dining room when they discovered that the subflooring underneath the tile was rotten. Hoban informed Kirk Dickinson (“Dickinson”), Roberts’ husband, of the defect, and the testimony is undisputed Rthat Dickinson told Hoban it was “in his hands.” Soon thereafter, Hoban instructed Darce to stand on a tile that he was having difficulty removing. Hoban then struck the tile with a maul, causing the tile to break and Darce to fall through the floor. The resultant injuries suffered by Darce form the basis of this litigation.

Roberts and Lloyds sought summary judgment on the grounds that Hoban was an independent contractor at the time of the incident and, as such, Roberts could not be held vicariously liable for the injuries sustained by Darce due to Hoban’s negligence. After reviewing the evidence submitted by the parties, the trial court found that there was no genuine issue of material fact that Hoban was an independent contractor because Roberts did not exercise any control over the manner in which Hoban performed the job of pulling up the tile floor. Accordingly, there was no basis to support a finding of vicarious liability against Roberts. It is from this decision that Darce seeks relief.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. La. C.C.P. art. 966; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 882-83; Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 546. “A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha, supra.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that |4mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). La. C.C.P. art. 966(C)(2) sets forth the burden of proof in summary judgment proceedings, providing:

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

Initially, the burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits, or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha, 977 So.2d at 883.

At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits, testimony, or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Id.

The Louisiana Supreme Court has set out guidelines for determining whether a person is an independent contractor or an employee. As a general rule, neither the owner nor the general contractor is liable for the negligence of an independent contractor who performs work for the owner or general contractor. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). In | (jHickman, the Supreme Court found the following factors relevant in determining whether the relationship of principal and independent contractor exists:

(1) the existence of a valid contract between the parties; (2) whether the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) whether there is a specific price for the overall undertaking agreed upon; and (5) whether the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

Id. at 390-91. The single, most important factor to consider in deciding whether the employer-employee relationship exists for the purposes of La. C.C. art. 2320 is the right of the employer to control the work of the employee. Id.

This Court similarly found that in deciding whether a person performing work for another is an employee or an independent contractor, and, thus, whether the principal is liable for that person’s negligence, the court is to analyze the degree of independence or subserviency of the person in accordance with the following factors:

(1) the existence of a contract for the performance of a specific job, (2) payment of a fixed price for the work, (3) employment by the contractor of assistants who are under his control, and (4) the furnishing of tools and materials and the right to control the conduct of the work while in progress.

White v. Shell Exploration & Production Co., 06-677 (La.App. 5 Cir. 1/30/07), 951 So.2d 1208,1210-1211.

The uncontested facts of this case indicate that Roberts did not control and direct Hoban’s work, except as to the result of the services to be rendered. When Roberts hired Hoban for home improvement projects, Roberts gave no instructions as to how the work was to be done, when the work was to be done, or who could be enlisted to help in the completion of the project. Roberts did not supply tools.

| Jn fact, when Hoban revealed the damaged subflooring to Roberts’ husband, Dickinson, he replied, “Destry [Hoban], it’s in your hands. I got too much work to do. Just be careful.” Roberts was not aware of the rotten subflooring until after the incident in question occurred. Roberts clearly had no operational control over the job, beyond general supervision.

Based on the foregoing, we And no error in the trial court’s finding that Hoban was an independent contractor, and, as a result, Roberts could not be held vicariously liable for Darce’s injuries. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    TTC PROPERTIES, INC. v. PARISH OF JEFFERSON.
    No. 2014-CA-2.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      David J. Halpern, Jill A. Gautreaux, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Elliot Ross Buckley, Jr., Liza M. Cabi-da, Kenneth B. Krobert, Angela M. Heath, Assistant Parish Attorneys, Jefferson, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

12Pefendant, the Parish of Jefferson (“the Parish”), appeals a judgment of the trial court that reversed and vacated a Jefferson Parish Council’s order condemning property owned by Plaintiff, TTC Properties, Inc. (“TTC Properties”), and ordering its demolition. For the reasons that follow, we affirm the trial court’s judgment.

FACTS & PROCEDURAL HISTORY

On August 19, 2013, Jefferson Parish Fire Department Chief Dennis Guidry inspected property located at 2616 Destre-han Ave. in Harvey, owned by TTC Properties, and filed a report that the structure located on the property constituted a fire hazard. Specifically, Chief Guidry noted that the structure (1) contained numerous openings in the walls or other unstopped spaces which increased the risk of conflagration in the area; (2) was vacant with unsecured windows or doors |sthereby permitting entry by unauthorized persons; (3) did not provide proper ingress and egress due to the boarding of windows and/or doors; (4) contained other fire hazards of such a nature to constitute a danger to its occupants and/or others; (5) was in such a state of disrepair that it was conducive to vagrants and crime; (6) was in such a condition so as to cause possible immediate loss or damage to person or property creating a grave public emergency; and (7) was an immediate danger to the health, life or safety of any person. Chief Guidry further noted that “windows have broken panes w/ glass shards exposed, electric panel appears energized from the power pole and has open meter pans ‘an extreme electric shock hazard.’ ” The report recommended that the cited structure be immediately demolished.

Thereafter, on August 21, 2013, the Parish sent a certified letter to TTC Properties demanding it show cause at a hearing on August 28, 2013 why its property at 2616 Destrehan Ave. should not be condemned and demolished pursuant to La. R.S. 33:4671, et seq. Prior to the hearing, TTC Properties hired a civil structural engineer, who inspected the property on August 27, 2013 and found no structural distress in the building at issue. The record before us does not indicate what transpired at the August 28, 2013 hearing before the Jefferson Parish Council (“the Council”); rather, the record only shows that the Council issued an order on the same day, after considering evidence presented including testimony and exhibits, condemning the property and ordering its demolition on August 30, 2013 under the authority of La. R.S. 33:4761, et seq.

On August 29, 2013, TTC Properties filed a petition for judicial review and sus-pensive appeal of the Council’s emergency demolition order with the 24th |4 Judicial District Court pursuant to La. R.S. 33:4764. In its petition, TTC Properties maintained that the Council’s decision to condemn the property and order its demolition was clearly erroneous and not supported by the evidence.

Pursuant to La. R.S. 33:4764, a trial de novo was held on September 26, 2013. At trial, the Parish offered the testimony of Chief Guidry as an expert in fire prevention, fire investigation, and dangerous building inspection. Chief Guidry testified that he inspected the exterior of the building, a four-plex, on August 19, 2013, and prepared a report indicating that the structure presented a fire hazard. He stated that the building was vacant and partially boarded with some deterioration. He explained that the unsecured building lent itself to “thrill seekers, vagrants, [and] children that want to play in the building.”

Chief Guidry also described the building as having broken windows and some missing sheetrock from the interior wall of one of the units that he was able to observe by looking through an unsecured window. On cross-examination, Chief Guidry clarified that he only observed one of the four units, by looking through a window, and saw three holes in the sheetrock. Additionally, he only saw two unsecured windows and one unsecured doorway. He explained that missing sheetrock is a fire hazard because the lack of sheetrock allows fire to spread through the interior walls of the building.

Further, Chief Guidry testified that it appeared the building was still connected to the power grid. He noted the meter pan was exposed, which | presented an electrical shock hazard. However, on cross-examination, Chief Guidry admitted that he did not test the electrical panel to see if it was in fact receiving electricity. In response to questioning by the trial judge, Chief Guidry acknowledged that he could not definitively say whether electricity was or was not being provided to the building at the time of his inspection.

In conclusion, Chief Guidry testified that the building was in a state of disrepair, but did not deem the building dilapidated. He opined the building was in such a state as to cause possible immediate loss or damage to personal property and created a grave public emergency. He further opined the condition of the building was an immediate danger to the health, life or safety of any person unless it was immediately demolished.

Thereafter, TTC Properties offered the testimonies of the owner of the property, Todd Cantrell, and its civil structural engineering expert, Edmond Pepper. Mr. Cantrell testified that he and his wife purchased the property at issue at a sheriffs sale in 2003. He explained they rented out the property but had problems keeping tenants because of the crime in the area. He stated that he and his wife boarded up the property after copper piping was stolen out of the building. Mr. Cantrell explained that dry wall and electrical lines were damaged during the copper theft. He testified that electrical power to the building was turned off after the copper was stolen because of the damage to the electrical lines.

After receiving notice from the Parish about the emergency demolition hearing, Mr. Cantrell hired Mr. Pepper to determine the structural integrity of the building. Mr. Pepper testified that he inspected the property at issue on August 27, 2013, the day before the Council hearing. He observed no exterior signs of structural distress. He noted several broken windows, some of which had been boarded up, and missing doors and door jams, which appeared to have been kicked |Rin. Mr. Pepper opined that the unsecured windows and doors created an “attractive nuisance” and could attract children or vagrants to use the building. Mr. Pepper also stated that there was no service drop from the pole to the meter pan on the day of his inspection and, thus, there was no power to the building.

Mr. Pepper pried open a loose board and squeezed inside the building, where he saw some missing sheetrock. In response to questioning by the trial judge, Mr. Pepper stated that he was able to observe all four of the units by walking through the walls. He explained that there was sheet-rock on the ceiling and on the walls, but portions of the sheetrock in the closets had been pushed or kicked to allow access from one apartment to the other.

On cross-examination, Mr. Pepper agreed that the property was in a state of disrepair, opining that it had been vandalized. He specifically stated that the structure was not dilapidated, which he explained indicates a bad condition caused by age, lack of care, decay, and fallen into partial ruin through neglect or misuse.

In addition to the testimony of these three witnesses, the parties stipulated to three exhibits: (1) the Council’s August 28, 2013 order of condemnation and demolition; (2) Chief Guidry’s August 19, 2013 report; and (3) photographs of the property taken by Chief Guidry.

The trial court took the matter under advisement and rendered judgment the following day on September 27, 2013, reversing the Council’s August 28, 2013 order of condemnation and demolition. In its reasons for judgment, the trial court found that the Parish failed to prove the property was dilapidated and dangerous as | ^required by La. R.S. 33:4761. It noted that Chief Guidry’s testimony was inconclusive on the issue and that his testimony offered little to no support that any grave public emergency existed. The trial court specifically noted that although Chief Gui-dry saw an allegedly charged electrical wire leading to a damaged electrical pan, he never tested the wire to see if it was energized. The trial court further noted Mr. Pepper’s contrary testimony that there was no electrical power to the building'at the time of his inspection. It also observed that both parties agreed that the building was structurally sound.

The trial court concluded that the pictures of the premises and the testimony presented failed to show that the condition of the property rose to a level of disrepair, dereliction, dilapidation, or dangerousness, or that it posed an immediate threat of loss or damage to person or property to warrant demolition. The trial court found that the evidence failed to show extensive or significant damage to either the interior or exterior of the property, and commented that it considered the damages to be minor.

ISSUES

On appeal, the Parish contends the trial court erred in finding insufficient evidence to prove the property was dilapidated and dangerous so as to warrant condemnation and demolition under La. R.S. 33:4761, et seq. The Parish also argues the trial court erred in considering the Jefferson Parish Code of Ordinances in determining the proper standard for condemnation instead of relying exclusively on the statutory standards set forth in La. R.S. 33:4761, et seq.

LAW & ANALYSIS

Under La. R.S. 33:4761,

[t]he governing authority of any parish or municipality may condemn and cause to be demolished or removed any building or structure |8within the parish or municipality when it is in a dilapidated and dangerous condition which endangers the public welfare.

“In case of grave public emergency where the condition of the building is such as to cause possible immediate loss or damage to person or property,” the parish may condemn the building after 24-hours of serving notice upon the owner. La. R.S. 33:4762(C).

Before a building can be condemned, a written report recommending the demolition or removal of the building must be signed by a parish official or other person authorized to act on behalf of the parish in such matters. Thereafter, notice must be served upon the owner of the building requiring him to show cause at a meeting of the governing authority why the building should not be condemned.' La. R.S. 33:4762(A)(1). After the hearing, if justified by the facts, the parish or governing authority shall enter an order condemning the building and ordering its demolition. However, “[i]f repairs will correct the dilapidated, dangerous, or unsafe condition, the parish or municipal governing authority may grant the owner the option of making such repairs.” La. R.S. 33:4763(A).

When the owner contests the decision of the Council, the burden is on the governing authority to sustain its action with sufficient evidence at a trial de novo. Automated Bldg. Corp. v. City of Bossier City, 530 So.2d 671, 677 (La.App. 2nd Cir. 1988), writ denied, 533 So.2d 358 (La.1988); Tatum v. Village of Converse, 440 So.2d 1354, 1357 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 121 (La.1984). The issue before the trial court in a trial de novo is the condition of the structure at the time the Council acted. Union Planters Bank, N.A. v. City of Gonzales, 05-377 (La.App. 1 Cir. 2/10/06); 924 So.2d 272, 276, writ denied, 06-992 (La.6/16/06); 929 So.2d 1292, citing Tatum, supra. The trial court’s factual findings in this regard are given great deference and should not be overturned 19unless they are clearly wrong. Automated Bldg. Corp., supra. In order to reverse the trial court’s factual determination regarding the sufficiency of the evidence in a condemnation and demolition case, the appellate court must review the record in its entirety and find the trial court was manifestly erroneous in its findings. Jumonville v. City of Kenner, 13-793 (La.App. 5 Cir. 3/26/14), 134 So.3d 1279,1287.

Upon review, we cannot say the trial court was manifestly erroneous or clearly wrong in its finding that the Parish failed to prove the structure at issue was in a dilapidated and dangerous condition which “endangered the public welfare” and presented “a grave public emergency” as to cause possible immediate loss or damage to person or property so as to warrant an emergency order of condemnation and demolition.

Chief Guidry only inspected the exterior of the building on one occasion nine days prior to the Council hearing. He noted several broken windows, two of which were unsecured; one unsecured door; and three holes in the interior sheetrock of one of the four units which he observed through a window. At the time of his report in which he recommended demolition, he believed the building was connected to the power grid and receiving electricity and determined the structure presented a fire hazard. However, he admitted at trial that he never tested for electrical flow and could not say whether the building had or did not have electricity. TTC Properties’ expert, Mr. Pepper, who inspected the building the day before the Council hearing, testified that the building was not connected to a power source because there was no service drop from the pole to the meter pan. Both Chief Guidry and Mr. Pepper agreed the building was in a state of disrepair, but was not structurally unsound. Additionally, neither Chief Guidry nor Mr. Pepper could testify that the building was dilapidated, within his understanding of |Tnthe meaning of the word. Mr. Pepper described the building as an “attractive nuisance.”

The Merriam-Webster Dictionary defines dilapidated as “decayed, deteriorated, or fallen into partial ruin especially through neglect or misuse.” Ruin is defined as “the remaining pieces of something that was destroyed.” Conversely, nuisance is defined as “a thing or situation that is annoying or that causes trouble or problems.” Based on the evidence presented, we cannot say the trial court erred in finding that neither the testimony nor photographs of the building showed a dilapidated and dangerous structure that endangered the public welfare for purposes of La. R.S. 33:4761, et seq. Additionally, we cannot say the trial court erred in finding the Parish presented little or no evidence to establish the building presented a “grave public emergency” so as to warrant its emergency demolition.

While we recognize and appreciate the Parish’s duty to protect the public from dilapidated and dangerous structures that endanger the public welfare, we cannot say the trial court abused its discretion in this case in finding that the Parish had not met the difficult burden of proving that a “grave public emergency” existed as required by the statute under which the Parish chose to proceed.

Furthermore, we find no merit in the Parish’s argument that the trial court erroneously used the Jefferson Parish Code of Ordinances as the applicable standard for determining the propriety of the Council’s condemnation and order of demolition. The trial court referenced the Code of Ordinances in its reasons for judgment only in the context of the procedural history involving the property. Specifically, as noted by the trial court, the property had been cited for certain code Inviolations that were the subject of unrelated proceedings. It is clear from the trial court’s reasons for judgment that it properly relied on La. R.S. 33:4761, et seq., to guide its decision in reviewing the Council’s August 28, 2013 order.

DECREE

For the foregoing reasons, we affirm the September 27, 2013 judgment of the trial court that reversed the Council’s August 28, 2013 emergency order of condemnation and demolition. Further, we remand the matter for the limited purpose of ordering the trial court to correct the date of its judgment to properly reflect that it was rendered on September 27, 2013, as opposed to September 27, 2012.

AFFIRMED; REMANDED FOR CORRECTION OF DATE OF JUDGMENT.

      . Todd Cantrell, owner of TTC Properties, testified at trial that the August 21, 2013 letter was posted on the building at issue and discovered by him on August 24, 2013 when he went to the property.

      . It is unclear what testimony the Council heard as Chief Guidry testified at trial that, even though he was present, he did not testify at the hearing before the Council.

      . La. R.S. 33:4764(A) provides:
      The owner, occupant, agent or other representative of the owner may appeal from the decision of the parish or municipal governing authority to the district court having jurisdiction over the property. The appeal shall be made by the filing of a suit against the parish or municipality, setting forth the reasons why the decision or order of the governing body is illegal or improper, and the issue shall be tried de novo and by preference in the district court. Where a grave public emergency has been declared by the parish or municipal governing authority, the owner of the building who desires to prevent the demolition or removal thereof must file his petition within forty-eight hours and must, at the time of the filing of the petition, furnish such bond as may be fixed by the district judge to cover any damage that might be caused by the condition of the building.

      . Forty-four photographs were introduced into evidence in globo. During trial, it was noted that some of the photos had been taken after the August 28, 2013 Council hearing. The record shows the parties agreed that only three photographs were taken by Chief Gui-dry before the Council hearing or on August 19, 2013; however, the three photographs were never specifically identified or so marked. Thus, from the record before us, we are unable to determine which three of the 44 photographs were taken prior to the Council hearing.

      . The judgment erroneously shows that it was rendered and signed on September 27, 2012. It is stamp-filed with the correct date of September 27, 2013. The error in the year is a clerical error that has no effect on the substantive judgment. See Lewis v. First State Bank & Trust Co., 413 So.2d 671, 672 (La.App. 1st Cir.1982).

      . Compare Tatum v. Village of Converse, 440 So.2d 1354 (La.App. 3rd Cir.1983), writ de

        nied, 444 So.2d 121 (La.1984), "[ajlthough the record indicates that the building was run down and basically an eyesore, the only evidence of dilapidation which presented a danger to the public welfare pertained to the south wall ... [where] [t]he sills, studs and floor joists were rotted and the wall had no support."

      . The burden of proof required when proceeding under La. R.S. 33:4761, et seq., is significantly more difficult than that of La. R.S. 33:1373 or R.S. 13:2575, et seq.


author: ROBERT M. MURPHY, Judge.

text:
    WELLS FARGO BANK, N.A. v. Cynthia Joyce THOMPSON.
    No. 2014-CA-3.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Kent A. Lambert, Katie L. Dysart, Attorneys at Law, Baker, Donelson, Bear-man, Caldwell & Berkowitz, PC, New Orleans, LA, for Plaintiff/Appellee.
    Philip A. Gattuso, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

| ¡>This appeal arises from the granting of a motion for summary judgment in favor of plaintiff-appellee, Wells Fargo Bank, N.A., and denying defendant-appellant, Cynthia Joyce Thompson’s cross-motion for summary judgment, dismissing the petition filed by Thompson seeking to annul the sheriffs sale conducted pursuant to executory process. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 25, 2002, Thompson executed a written mortgage agreement and promissory note in the principal amount of $121,099.00, plus interest at 7.5%, a loan made for the acquisition of immovable property located at 2814 Newton Street in Gretna, Louisiana. The mortgage and note were subsequently transferred and assigned to Wells Fargo Bank, N.A. (“Wells Fargo”). Under the terms of the note, Thompson was required to repay the principal indebtedness, with interest, over thirty years through monthly installment payments of $846.74. A certified copy of the mortgage was recorded in Jefferson Parish on July 11, 2007.

|3On July 24, 2007, Wells Fargo filed a petition for executory process against Thompson, alleging that she was in default under the terms of her mortgage due to her failure to make the monthly payments for the prior six months. In the petition, Wells Fargo sought a writ of seizure and sale directing the sheriff to sell the property to satisfy the principal sum of $115,551.97, plus 7.5% interest, from December 1, 2006 until paid.

On or about October 5, 2007, the parties entered into a Special Forbearance Agreement, wherein Thompson acknowledged that her loan was then past due for nine monthly payments and agreed to make a series of scheduled payments over the next four months. However, after Thompson made only the first of the four scheduled payments under the Special Forbearance Agreement, Wells Fargo resumed its foreclosure action in December of 2007. On December 11, 2007, Wells Fargo filed a supplemental and amended petition, alleging that Thompson failed to comply with the terms of the Special Forbearance Agreement. After applying the payment received from Thompson, Wells Fargo alleged that the principal balance was $115,427.48, plus 7.5% interest, from January 1, 2007 until paid.

In March of 2008, Thompson filed a Chapter 13 bankruptcy action in the U.S. Bankruptcy Court for the Eastern District of Louisiana, which was subsequently dismissed on June 17, 2008. Following the dismissal of Thompson’s bankruptcy action, Wells Fargo and Thompson entered into a Loan Modification Agreement on October 21, 2008. In the Loan Modification Agreement, Thompson acknowledged that as of January 1, 2009, the unpaid principal balance under the mortgage and note would be $147,061.72 and agreed to pay that balance through monthly payments of $898.56, plus 6.125% interest, beginning on January 1, 2009.

14After Thompson failed to comply with the terms of the Loan Modification Agreement, Wells Fargo proceeded with its foreclosure action, and the property was sold to Wells Fargo in a sheriffs sale on July 21, 2010. At no time did Wells Fargo file a second supplemental and amended petition alleging the terms of the Loan Modification Agreement. On August 1, 2010, the sheriffs deed evidencing the sale of the property was recorded in the Jefferson Parish mortgage and conveyance records.

Thompson filed suit against Wells Fargo on May 18, 2011, seeking to annul the sheriffs sale of the property seized and sold through executory process. On August 9, 2013, Wells Fargo filed a motion for summary judgment, asserting that there was no genuine issue of material fact. On August 30, 2013, Thompson filed an opposition and cross-motion for summary judgment. After a hearing, the trial court granted Wells Fargo’s motion for summary judgment, denied Thompson’s cross-motion for summary judgment, and dismissed all of Thompson’s claims against Wells Fargo with prejudice. Thompson now appeals.

STANDARD OF REVIEW

A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law.” Marengo v. Harding, 13-47 (La.App. 5 Cir. 5/16/13), 118 So.3d 1200, 1202 (citing La. C.C.P. art. 966(B)). It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Garrison v. Tanenbaum, 02-1181 (La.App. 5 Cir. 4/8/03); 846 So.2d 40, 42; (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750). Therefore, this court must consider | .¡whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

LAW AND ANALYSIS

In her sole assignment of error, Thompson contends that the trial court erred in granting summary judgment in favor of Wells Fargo, and in denying her cross-motion for summary judgment, because Wells Fargo’s failure to amend its petition for executory process to allege the terms of the October 21, 2008 Loan Modification Agreement constituted a substantive defect, rendering the sale of the property null. Thompson asserts that after she failed to comply with the terms of the October 5, 2007 Special Forbearance Agreement, Wells Fargo filed a supplemental and amended petition reflecting the change in the principal balance and her breach thereof. However, she contends that before proceeding with the sale of her property, Wells Fargo failed to similarly supplement and amend its petition to reflect the terms of the October 21, 2008 Loan Modification Agreement, which included changes in the principal balance, interest rate and monthly installment amount. Thompson alleges that this failure constitutes a substantive defect sufficient to annul the sale of the property.

Conversely, Wells Fargo contends that Thompson’s argument is purely procedural and not substantive. Wells Fargo contends that Thompson failed to timely seek an injunction to arrest the seizure and sale of the property, or a timely suspensive appeal from the order of seizure pursuant to La. C.C.P. art. 2642, nor did she seek any other relief related to the sale of the property until nearly ten months after the recordation of the sheriffs deed of sale. As a result, Wells Fargo argues that Thompson has waived any and all defenses, evidentiary errors or objections regarding the foreclosure action.

LThe general rule is that defenses and procedural objections to a proceeding by executory process may be asserted only (1) through an injunction to arrest the seizure and sale, or (2) by a suspensive appeal from the order directing the issuance of a writ of seizure and sale, or both. American Thrift & Finance Plan Inc. v. Richardson, 07-640 (La.App. 5 Cir. 1/22/08), 977 So.2d 105, 108. Our courts, however, have recognized an exception to the above general rule. Id. Louisiana law provides that a debtor who fails to exercise the right to take a suspensive appeal or to enjoin the sale may, under limited circumstances, attempt to nullify the completed sheriffs sale. Gulf Coast Bank & Trust Co. v. Warren, 12-1570 (La.App. 4 Cir. 9/18/13), 125 So.3d 1211, 1217 (citing First Guaranty Bank, Hammond, La. v. Baton Rouge Petroleum Center, Inc., 529 So.2d 834, 841 (La.1988)). If the creditor is the adjudicatee at the sale, the debtor may attack the sale as a nullity, even though the debtor failed to exercise his right to take a suspensive appeal or enjoin the sale, based solely on substantive defects in the executory proceeding, such as fraud, lack of notice, or ill practices by the creditor. Id.; American Thrift & Finance Plan Inc., 977 So.2d at 108.

Defects in the proceedings that are substantive in character and that strike at the foundation of the executory proceeding, as opposed to defects of form, may be used to invalidate a sale through executory process. Deutsche Bank Nat’l Trust Co. v. Carter, 10-663 (La.App. 5 Cir. 1/25/11), 59 So.3d 1282, 1286; see also First Guar. Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., Inc., 529 So.2d 834, 840-41 (La.1987); Reed v. Meaux, 292 So.2d 557, 574-75 (La.1973).

In 1975, the legislature added La. R.S. 13:4112 prohibiting actions to annul completed judicial sales of immovable property by executory process by reason of any objection to form or procedure or lack of authentic evidence in the executory proceeding, which provides, in pertinent part, as follows:

17No action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the process verbal of the sale or filed the sale for recordation in the conveyance records of the parish ...

Therefore, objections as to the lack of authentic evidence or as to defects of form or procedure may not be used as grounds for an action to annul a judicial sale of immovable property by executory process after recordation. First Guar. Bank, Hammond, La., 529 So.2d at 841; Gulf Coast Bank & Trust Co., 125 So.3d at 1217. In enacting La. R.S. 13:4112, the legislature mirrored the principle of Louisiana’s public records doctrine, which entitles third party purchasers to rely on the ownership status of real property as reflected on the face of the public record, absent evidence of fraud, error or mistake. Schudmak v. Prince Phillip P’ship, 573 So.2d 547, 550 (La.App. 5 Cir.1991); La. R.S. 9:2721.

In this case, Thompson did not timely seek an injunction or exercise her right to take a suspensive appeal based on the grounds asserted in her petition to annul. The sheriffs deed evidencing the sale of the property to Wells Fargo was recorded in the Jefferson Parish public records on August 1, 2010, and Thompson filed her petition to annul the sale on May 18, 2011. However, because the property remains in the hands of the foreclosing creditor, Wells Fargo, Thompson could arguably annul the sale of the property only upon proof of a substantive defect in the executory proceeding, such as fraud, lack of notice, or ill practices by Wells Fargo.

Here, Thompson asserts that Wells Fargo’s original and supplemental petitions allege principal balances of $121,099.00 and $115,427.48, respectively, plus an interest rate of 7.5% interest. At the time that the parties entered into the October 21, 2008 Loan Modification Agreement, the arrearages noted in the 1 ^original and supplemental petitions were added to the principal balance. The amount of the principal balance increased to $147,061.72, and the interest rate was reduced to 6.125%. Thompson alleges that proceeding with the foreclosure and sale of the property without first amending the petition to include these changes constitutes a substantive defect.

After reviewing the record de novo, we find that Thompson has failed to show that there is any genuine issue of material fact evidencing a substantive defect sufficient to annul the sale of the property. We find that Wells Fargo’s failure to amend its petition to allege the change in principal balance and interest rate reflected in the Loan Modification Agreement does not constitute a defect that is substantive in character or that strikes at the foundation of the executory proceeding. See Deutsche Bank Nat’l Trust Co., 59 So.3d at 1286. Thompson does not allege that her mortgage was not in default or that the principal balance reflected in Wells Fargo’s foreclosure and sale of her property are inaccurate, only that Wells Fargo failed to follow the proper procedure before proceeding to the foreclosure and sale of the property when it failed to amend the principal balance and interest rate. We find that such claims do not rise to the level of substantive defects sufficient to invalidate a sale through exec-utory process, such as fraud, lack of notice, or ill practices by the creditor.

Rather, we find Thompson’s claim to be in the nature of a “defect of form” or a procedural objection. First Guar. Bank, Hammond, La., 529 So.2d at 841. As such, Thompson was required to raise this defense to the executory process proceeding through an injunction to arrest the seizure and sale, or by a suspensive appeal from the order directing the issuance of a writ of seizure and sale, or both. Id. Because she failed to do so, or to seek any relief related to the sale of her property until nearly ten months after the recordation of the sheriffs deed, ^Thompson is prohibited under La. 13:4112 from seeking to annul the completed judicial sale of the property on the grounds asserted in her appeal.

Therefore, we find that there is no genuine issue of material fact as to whether Wells Fargo’s failure to amend its petition for executory process to allege the terms of the October 21, 2008 Loan Modification Agreement constituted a substantive defect, rendering the sale of the property null.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Wells Fargo’s motion for summary judgment and denying Thompson’s cross-motion for summary judgment, dismissing her claims against Wells Fargo with prejudice, is affirmed.

AFFIRMED.