author: JUDE G. GRAVOIS, Judge.

text:
    INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS AND ALLIED WORKERS LOCAL UNION NO. 53 v. Dominick PATERNOSTRO.
    No. 13-CA-1006.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      Robert H. Urann, Louis L. Robein, Jr., Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    David M. McDonald, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    John C. Scully, Attorney at Law, Springfield, Virginia, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

12Pefendant, Dominick Paternostro, appeals a judgment by the First Parish Court of Jefferson Parish, granting summary judgment in favor of plaintiff, International Association of Heat and Frost Insulators and Allied Workers Local Union No. 53 (“the Union”). For the reasons that follow, we reverse the trial court’s grant of summary judgment in favor of the Union, vacate the award of attorney’s fees to the Union, and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Defendant became a member of the Union in 1979. In the late 1980’s, defendant began working for Eagle Insulation (“Eagle”), a “union company.” In the mid-1990’s, Eagle was awarded a maintenance contract for the ExxonMobil refinery in Chalmette, Louisiana. And, in 1998, defendant was promoted to Eagle’s superintendent at this refinery. As a consequence of taking this managerial position, defendant “withdrew” from the Union.

^Approximately twelve years later in 2010, when Eagle’s maintenance contract with ExxonMobil was nearing its expiration, ExxonMobil notified Eagle that it would not be allowed to bid on the new contract. ExxonMobil later awarded the maintenance contract to The Brock Group, a “non-union company.” Around this time, defendant was offered and accepted a supervisory position with Brock, to commence on September 7, 2010. Eagle’s last day at ExxonMobil was September 3, 2010.

Around the time Eagle learned that its contract with ExxonMobil would not be renewed, Juan Perez, an Eagle employee at ExxonMobil under defendant, testified that defendant offered to help him in locating a job and told him that if he wanted to stay at ExxonMobil, he would have to work for Brock. According to Mr. Perez, defendant encouraged him to work for Brock. Fredal Riecke, another Eagle employee, also testified that defendant approached him about remaining at Exxon-Mobil.

In a letter dated August 31, 2010, Leo Damaris, the Union’s business manager, informed defendant that charges were being filed against him by the Union “for violation of the International Association of Heat and Frost Insulators and Allied Workers [sic] Constitution and Bylaws under Article XXIV by accepting employment with Brock Group at the Exxon/Mobile [sic] refinery in Chalmette Louisiana, and by actively recruiting fellow members of [L]ocal # 53 to leave employment with a Local # 53 signatory and seek employment with the non-signatory Brock Group.” This letter delineated six provisions (listed infra) of the Union’s Constitution and Bylaws (“the Constitution”) that defendant’s conduct was alleged to have violated.

^Defendant responded to Mr. Damaris in a letter dated September 7, 2010, stating:

Approximately 10 years ago when I took a management position for Eagle Insula-tions, I never knew I was a member of Asbestos Workers [L]ocal # 53 union. At Eagle Insulations and at Brock I have been in a management position so I could not be a union member and the union has no jurisdiction over me. If you do not have a copy of my resignation, just to make it clear, I am not a member of the Asbestos Workers Local 53 union.

Mr. Damaris responded to defendant in a letter dated September 21, 2010, informing him that a hearing on the charges had been set for October 10, 2010. Defendant responded in an undated letter, informing the Union that he would not attend the hearing since, as a non-member, the Union did not have jurisdiction over him. Then, in an October 11, 2010 letter, defendant was informed that his hearing had been rescheduled for November 12, 2010. The hearing was held that day, defendant did not attend, and in his absence, the Union’s executive board unanimously found him “guilty” on all six counts. Pursuant to the Constitution, the president of Local 53, James Pratt, presided as judge at the hearing, but did not participate in the determination of guilt or innocence. After the hearing, Mr. Pratt, as judge, determined that defendant had caused $7,500.00 in damages to the Union, based upon the dues lost from five individuals who defendant allegedly successfully recruited for employment with a non-union company, as well as previously paid expenses for the training of those individuals. As a result, defendant was fined $7,500.00 by the Union.

Defendant did not pay this fine, and on January 14, 2011, the Union instituted this breach of contract action against him to recover the fine. Defendant responded by filing an unfair labor practice charge against the Union, which he subsequently withdrew. Thereafter, the Union and defendant filed cross motions |sfor summary judgment. Following a hearing on the parties’ motions, the trial court granted the Union’s motion for summary judgment, ruling as follows:

I tell you what, Pm going to grant the [Ujnion’s Motion for Summary Judgment. I find by him not showing up at the hearing, he acquiesced to everything that they did.
He was paying what you call withdrawal dues. He was paying them something. He was paying them something every year, so he was paying the [Ujnion something.

The court ordered defendant to pay the fine of $7,500.00 and granted the Union’s request for attorney’s fees, to be determined at a later date. At a hearing held on October 15, 2013, the trial court awarded attorney’s fees to the Union in the stipulated amount of $12,500.00.

LAW AND ANALYSIS

By this appeal, defendant seeks review of the trial court’s granting the Union’s motion for summary judgment in its breach of contract action. A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Zeringue v. O’Brien Transp., Inc., 05-760 (La.App. 5 Cir. 4/11/06), 931 So.2d 377, 379, writ denied, 06-1107 (La.9/1/06), 936 So.2d 205. Summary judgments are favored in the law and the rules should be liberally applied. Id. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. Id.

Appellate courts review a judgment granting a motion for summary judgment on a de novo basis. Gutierrez v. State Farm Fire & Cas. Ins. Co., 13-341 (La.App. 5 Cir. 10/30/13), 128 So.3d 509, 511. Thus, this Court uses the same criteria as the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id.

| fiProcedurally, the court’s first task on a motion for summary judgment is determining whether the moving party’s supporting documents — pleadings, depositions, answers to interrogatories, admissions and affidavits — are sufficient to resolve all material factual issues. Murphy v. L & L Marine Transp., Inc., 97-33 (La.App. 5 Cir. 5/28/97), 695 So.2d 1045, 1047 (citing LSA-C.C.P. Art. 966(B)). To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. Id. In making this determination, the mover’s supporting documents must be closely scrutinized and the non-mover’s indulgently treated. Id. Since the moving party bears the burden of proving the lack of a material issue of fact, inferences to be drawn from the underlying facts before the court must be viewed in light most favorable to the non-moving party. Id.

If the court determines that the moving party has met this onerous burden, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Murphy, supra. Louisiana Code of Civil Procedure article 967 outlines the non-moving party’s burden of production as follows:

When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Summary judgment is appropriate when all the relevant facts are marshalled before the court, the marshalled facts are undisputed, and the only issue is the ultimate conclusion to be drawn from those facts. Id.

With these precepts in mind, we now turn to the case at hand.

17This Court has recognized that unions are not prohibited from fining their members for offenses committed while they are members, if the member has been afforded due process and the fines are reasonable. Int’l Bhd. of Elec. Workers Local Union v. Jouandot, 05-269 (La.App. 5 Cir. 1/17/06), 921 So.2d 1054, 1057 (citing 29 U.S.C. § 411(a)(5)). Therefore, defendant’s adjudication and fine were proper if the following factors were appropriately satisfied: (1) defendant, while a member of the union, violated the Constitution; (2) he was afforded due process; and (3) the fine is reasonable.

Because we conclude infra that genuine issues of material fact remain with respect to whether defendant was afforded due process (the second factor), and the reasonableness of the fine imposed (the third factor), due to the limited nature of the record before us and in order to permit the trial court to conduct a full adjudication on the merits of all issues involved in this matter, we decline to make a determination at this stage of the proceeding as to whether genuine issues of material fact remain with respect to any of the other factors to be considered and whether the Union is entitled to judgment as a matter of law. We nonetheless include an analysis of each factor as part of our comprehensive review of this matter.

Factor 1 — Violation of Constitution by Union Member

Union Membership

Defendant argues that he was not a member of the Union at the time of the alleged violations because his membership ceased in 1998 when he was promoted to a managerial position, i.e., superintendent, with Eagle. The Union, by contrast, | Sargues that at the time of the alleged violations, defendant was a member on “withdrawal status” and so was still subject to charges and trial under the Constitution.

Whether defendant was a union member at the time of the alleged violations is governed by the Union’s Constitution. Article XVI, Sec. 2 of the Constitution provides that union members “who become employers, superintendents, estimators, salesmen, insulation inspectors, employers’ representatives or agents in the trade” are entitled to “withdrawal cards.” While Article XVI, Sec. 2 prohibits members with withdrawal cards from voting or attending local union meetings, Article XXIV, Sec. 2 provides that “[a]ny member, including those on withdrawal card, shall be subject to charges and trial.”- Indeed, the Union’s business manager, Mr. Damaris, testified at his deposition that “[t]he [Constitution and bylaws applies to all members regardless of your status, whether you be active, on withdrawal, or retired. [As] [l]ong as you’re a member of the [UJnion, the [Constitution and bylaws applies [sic] to everyone.”

To maintain withdrawal status, Article XVI, Sec. 8 mandates that “[a] fee of fifty dollars ($50) shall be charged for the issuance and each renewal of a withdrawal card.... Withdrawal cards must be renewed not later than every twelve (12) months after date of issuance by the holders thereof....”

The record reflects that at the time of defendant’s promotion to superintendent with Eagle in 1998, he commenced paying his annual withdrawal renewal fees from that time until he left to work for Brock in 2010.

On remand, the trial court will be required to determine whether defendant was in fact a member of the Union at the time he is alleged to have violated the Constitution.

| aViolation of Union Constitution

Although the Union did not submit argument regarding the merits of defendant’s convictions in its motion for summary judgment, defendant did, arguing there was no evidence to support his convictions. At the motion hearing, the trial court did not consider the merits of defendant’s convictions. Thus, on appeal, defendant argues that the trial court erred in deferring to the executive board’s factual findings and determination of guilt at the disciplinary hearing. He requests that this Court consider the merits of his convictions. In support of this position, he cites Jouandot, supra, and Int’l Bhd. of Elec. Workers v. Bunting, 97-1052 (La.App. 3 Cir. 2/11/98), 707 So.2d 132, in which this Court and the Third Circuit, respectively, considered the merits of the charges against those defendants. We find these cases to be distinguishable from the instant case: trials on the merits were conducted in both Jouan-dot and Bunting, whereas, in the instant case, the matter was resolved without a trial on the merits and the trial court did not consider the merits of the charges.

In a case with a similar procedural posture to that here, the United States Third Circuit Court of Appeals declined to consider the merits of the charges against a union member. In Goodman v. Laborers’ Int’l Union of N. Am., 742 F.2d 780, 782 (3d Cir.1984), the plaintiff, a union member, had been found guilty at an internal union hearing of union violations and was barred from holding any elected union office for five years. After a series of internal hearings and appeals, he filed an action for damages and injunctive relief pursuant to 29 U.S.C. § 412, in which he alleged that he had been denied a “full and fair hearing” in violation of 29 |inU.S.C. § 411(a)(5). Goodman, 742 F.2d at 781-82. Upon cross motions for summary judgment, the district court granted the union’s motion and dismissed the plaintiffs complaint. Id., 742 F.2d at 782. On appeal, the plaintiff sought review of the court’s conclusion that he had received a full and fair hearing. Id.

The federal appellate court declined to consider the substance of the charges against the plaintiff in light of the Congressional policy expressed in the Labor-Management Reporting and Disclosure Act (29 U.S.C. § 401, et seq.) that courts should respect the autonomy of unions in determining punishable offenses and in disciplining their members. Goodman, 742 F.2d at 783 (citing Int’l Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 244, 91 S.Ct. 609, 616, 28 L.Ed.2d 10 (1971)); see also Hinchman v. Local Union No. 130 Int’l Bhd. of Elec. Workers, 299 So.2d 818, 824 (La.App. 4 Cir.1974), writ denied, 302 So.2d 618 (La.1974), cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104 (1975) (“The jurisprudence interpreting the Labor Management Reporting <& Disclosure Act (LMRDA) has declared that the interpretation of union rules and by-laws to determine whether particular conduct of a member may result in disciplinary action should be left to the union itself, and their interpretation is not proper for judicial scrutiny.”). Instead, the court focused its inquiry into the fairness of the disciplinary proceedings, considering whether the plaintiff had been afforded the procedures required by 29 U.S.C. § 411(a)(5). Goodman, 742 F.2d at 783. The court ultimately reversed the district court’s granting of summary judgment, finding there was a genuine issue of material fact as to whether the defendant had been afforded a “full and fair hearing.” Id. at 785.

Similarly in the instant ease, the trial court apparently did not consider the merits of the charges or the fairness of the hearing, but rather apparently granted the Union’s motion for summary judgment simply because “by [defendant] not [^showing up at the hearing, he acquiesced to everything that they did.” In keeping with the recognized policy that courts should respect the autonomy of unions in determining punishable offenses and in disciplining their members, we decline to address the merits of defendant’s convictions, but instead consider the fairness of the proceedings against him.

Factor 2 — Due Process

Pursuant to 29 U.S.C. § 411(a)(5), no member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; and (C) afforded a full and fair hearing.

Written Specific Charges

In an August 31, 2010 letter, defendant was informed of the charges against him. The letter declared that charges were being filed against defendant “for violation of the International Association of Heat and Frost Insulators and Allied Workers [sic] Constitution and Bylaws under Article XXIV by accepting employment with Brock Group at the Exxon/Mobile [sic] refinery in Chalmette Louisiana, and by actively recruiting fellow members of [L]o-cal # 58 to leave employment with a Local # 53 signatory and seek employment with the non-signatory Brock Group.” The letter enumerated the following six provisions of Article XXIV, Section 1 of the Constitution that defendant was alleged to have violated, to-wit:

(a) Violation of any provision of the Constitution and Bylaws of the International Association, and the rules thereunder, or of the bylaws, trade agreements or rules of a local union.
|12(d) Engaging in activities designed to bring about secession or withdrawal from the International Association of any member or group of members of a local union.
(e) Wronging a member of the International Association by any acts or acts (other than the expression of views or opinions) causing him physical economic harm.
(g) Working for, or on behalf of, any employer, employer-supported organization or other union or organization, or the representative of any of the foregoing, whose position is adverse or detrimental to the International Association.
(i) Making known the business of the International Association or any of its local unions to any employer, employer-supported organization, or other union or organizations, or to the representatives of any of the foregoing.
(n) Engaging in any act or acts which are contrary to the member’s responsibility toward the International Association or any of its local unions as an institution, or which interfere with the performance by the International Association or a local union of its legal or contractual obligations.

After notifying defendant of the allegations against him, in accordance with the Constitution, a September 21, 2010 letter informed defendant that his hearing had been set for October 10, 2010. The certified mail receipt indicates that defendant received this letter on September 24, 2010. Included in this letter was a recitation of Article XXV, Section 2, which provides in pertinent part: “If the accused fails to appear at the scheduled time and place, or otherwise attempts to evade trial, the trial board shall proceed to hear and determine the case just as though the accused were present.”

Thereafter, in an October 11, 2010 letter, defendant was informed that his hearing had been rescheduled for November 12, 2010. The certified mail receipt reflects that defendant received this letter on October 16, 2010. On November 12, 2010, in defendant’s absence, the executive board convened, heard testimony | ^regarding the allegations against defendant, and found him guilty on each of the six counts.

On remand, the trial court will be required to determine whether defendant was in fact served with sufficient written specific charges of the provisions of the Constitution which he is alleged to have violated.

Reasonable Time to Prepare a Defense

Courts have determined what constitutes a reasonable time to prepare a defense on a case-by-case basis. See, e.g., Schrader v. Sheet Metal Workers Int’l Ass’n Local Union No. 20, 656 F.Supp. 1487, 1494 (N.D.Ind.1987) (forty-one days reasonable time to prepare a defense); Falcone v. Dantinne, 288 F.Supp. 719, 727 (E.D.Pa.1968), rev’d on other grounds, 420 F.2d 1157 (3d Cir.1969) (twenty-three days reasonable time to prepare a defense); Vars v. Int’l Bhd. of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, 215 F.Supp. 943, 947-48 (D.Conn.1963), aff'd, 320 F.2d 576 (2d Cir.1963) (seventeen days reasonable time to prepare a defense).

In the present case, Article XXIV, Sec. 2 of the Constitution mandates that “trial shall not be held less than ten (10) days from the time the charges are served upon the accused.” Defendant was first informed of the charges against him by letter dated August 31, 2010. Though a certified mail receipt is not included with this letter, the record reflects that defendant responded to this letter on September 7, 2010. Therefore, since defendant learned of the charges against him no later than September 7, 2010, and his disciplinary hearing was held on November 12, 2010, it appears that he had at least sixty-five days to prepare his defense.

On remand, the trial court will be required to determine whether defendant was in fact provided with a reasonable amount of time to prepare a defense to the charges against him.

1 uFull and Fair Hearing

The United States Supreme Court has recognized that a “full and fair hearing,” as mandated by 29 U.S.C. § 411(a)(5)(C), “requires the charging party to provide some evidence at the disciplinary hearing to support the charges made[,]” and that “[t]his is the proper standard of judicial review.” Hardeman, supra, 401 U.S. at 245-46, 91 S.Ct. at 617 (Emphasis added.) Therefore, in determining whether defendant was afforded a “full and fair hearing,” we must consider whether the Union provided “some evidence” at the disciplinary hearing to support the charges against defendant.

The record before us contains only the minutes of the disciplinary hearing held on November 12, 2010. Those minutes reflect that the evidence offered against defendant consisted of testimony from Union members Fredal Riecke and Juan Perez.

According to the minutes, Mr. Riecke testified that on or about August 23, 2010, he, Raul Hernandez, and Luis Hernandez were approached by defendant, who informed them that Brock would be taking over the maintenance contract at Exxon-Mobil, that he was taking the position of superintendent at Brock, and that they too could obtain employment with Brock. Mr. Riecke also testified that he had observed defendant targeting people about working for Brock.

Also according to the minutes, Mr. Perez testified that defendant offered him employment with Brock, that defendant had dispatched Luis Hernandez to speak to other people about working for Brock, and that on August 26, 2010, Luis Hernandez approached him about working for Brock.

11SAfter the testimony of Mr. Riecke and Mr. Perez, the minutes reflect that Mr. Damaris gave a closing statement in which he summarized the charges against defendant. He stated that defendant recruited four mechanics and one apprentice from the Union. He did not identify these five individuals, nor did he present evidence that five members had in fact taken employment with Brock.

Upon our de novo review, we find it troubling that the minutes of defendant’s disciplinary hearing do not identify the five members defendant was convicted of (and fined for) causing to defect to Brock. Other than Mr. Damaris’ assertion in his closing statement that defendant recruited five members for Brock, the record before us does not indicate that evidence was presented at defendant’s disciplinary hearing showing that five members defected to Brock as a result of defendant’s recruiting efforts.

In its brief to this Court, the Union argues that by causing several Union members to defect to Brock, defendant violated subsection (e), which proscribes “[w]ronging a member of the International Association by any acts or acts (other than the expression of views or opinions) causing him physical economic harm.” The Union contends that the secession of the Union members economically harmed the general membership.

Upon review, we find this argument is not supported by the evidence introduced at the disciplinary hearing (as reflected in the minutes of the hearing), which, as noted above, indicates only that defendant approached four members about employment with Brock (¿e., Fredal Riecke, Juan Perez, Raul Hernandez, and Luis Hernandez). The minutes do not reflect that evidence was introduced showing whether any or all of those four members in fact left for Brock. In the absence of such evidence, we find that genuine issues of material fact remain as to whether there was “some evidence” presented at defendant’s disciplinary hearing 116showing that he violated subsection (e) by recruiting five members to defect to Brock.

We also find genuine issues of material fact remain as to whether “some evidence” was presented supporting the charge that defendant violated subsection (i). That subsection proscribes “[m]aking known the business of the International Association or any of its local unions to any employer, employer-supported organization, or other union or organizations, or to the representatives of any of the foregoing.” The Union argues that “the Union’s ‘business’ includes the relative skill of its members and the hiring practices of its hiring hall.” Therefore, the Union contends that defendant made known the Union’s business to Brock when he “handpicked members to defect to Brock, signaling to Brock the members with an acceptable skill level who were likely to defect.”

Even if it is assumed that defendant “handpicked” members for employment at Brock, it is not clear to us from the record how this constitutes a “signal” to Brock of members with an acceptable skill level who were likely to defect. The minutes do not reflect that evidence was presented showing defendant conveyed any information to Brock or a representative thereof. The evidence presented showed only that defendant discussed employment opportunities at Brock with four members. In the absence of evidence that defendant “ma[de] known the business” of the Union “to any employer, employer-supported organization, or other union or organizations, or to the representatives of any of the foregoing,” we find genuine issues of material fact remain as to whether there was “some evidence” presented at defendant’s disciplinary hearing showing he violated subsection (i).

Consequently, where the record before us suggests that defendant was found guilty of two violations without “some” supporting evidence, we find that genuine | ^issues of material fact remain as to whether defendant was afforded a full and fair hearing.

Further, on remand, the trial court will be required to determine whether there was “some evidence” presented at defendant’s disciplinary hearing showing that he violated any of the other noted subsections of the Constitution.

Factor 3 — Reasonableness of Fine

The United States Supreme Court has held that “[i]ssues as to the reasonableness or unreasonableness of [union fines against its members] must be decided upon the basis of the law of contracts, voluntary associations, or such other principles of law as may be applied in a forum competent to adjudicate the issue.” NLRB v. The Boeing Co., 412 U.S. 67, 74, 93 S.Ct. 1952, 1956-57, 36 L.Ed.2d 752 (1973). This Court has found that in determining the reasonableness of fines in this context, the law of conventional obligations applies since the members of a union are bound by the constitution and bylaws of the union, which constitutes the contract between them. Jouandot, 921 So.2d at 1057.

In the instant case, since the sums to be recovered for violations of the Constitution were not set forth in the Constitution (ie., stipulated damages), the Union was required to prove actual damages suffered by it as a result of defendant’s violations. See Jouandot, 921 So.2d at 1058 (citing La. C.C. art. 1995). If the amount of damages is “insusceptible of precise measurement” the amount to be awarded is left to the discretion of the court. Id. (citing La. C.C.1999).

President Pratt explained that the $7,500.00 fine assessed against defendant represented the dues lost from five members who left Eagle for Brock at defendant’s encouragement, as well as the previously paid expenses for the h straining of those members. However, as noted above, the minutes of the disciplinary hearing appears to be devoid of evidence showing that five members left Eagle for Brock as a result of defendant’s solicitation. Since the president’s calculation of the fine was apparently based on an assessment of damages without supporting evidence, we find that genuine issues of material fact remain as to the actual damages sustained by the Union, and therefore, as to the reasonableness of the fine.

AWARD OF ATTORNEY’S FEES

In consideration of our above findings that genuine issues of material fact remain which preclude the granting of summary judgment in this matter at this time, we find that an award of attorney’s fees to the Union is premature at this juncture in the proceedings. Accordingly, we vacate the trial court’s award of attorney’s fees to the Union.

CONCLUSION

Upon our de novo review, we find that genuine issues of material fact remain which preclude the granting of summary judgment in this matter at this time. In light of this conclusion, we correspondingly conclude that the award of attorney’s fees to the Union is premature at this time. Accordingly, for the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of the Union, vacate the award of attorney’s fees to the Union, and remand the matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The record reflects that a company is considered a "union company” if it has contractually agreed to hire union members; likewise, a "non-union company” has not contractually agreed to hire union members.

      . Portions of Mr. Perez’s and Mr. Riecke’s deposition testimonies were attached as exhibits to the memorandums filed in support of the Union’s and defendant’s cross motions for summary judgment.

      . 29 U.S.C. § 411(a)(5) provides:
      No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

      . Copies of defendant’s personal checks and copies of the Union's ledger reflect that defendant paid his first withdrawal renewal fee of $50.00 in June of 1998 and paid his last withdrawal renewal fee in June of 2010.

      . 29 U.S.C. § 412 provides:
      Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.

      . In addition, federal circuit courts have held that the full and fair hearing clause of 29 U.S.C. § 411(a)(5)(C) mandates trial by an “unbiased tribunal.” See Wildberger v. Am. Fed'n of Gov’t Employees, AFL-CIO, 86 F.3d 1188, 1193 (D.C.Cir.1996); Goodman, supra at 783-84.

      . On account of our determination that defendant was convicted of charges in the absence of "some" supporting evidence, we pretermit discussion of the bias of the tribunal.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Willie FRANKLIN.
    No. 13-KA-723.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Shannon K. Swaim, Emily E. Booth, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

| ^Defendant, Willie Franklin, appeals his convictions and sentences for armed robbery and possession of a stolen thing on the basis of insufficient evidence regarding his identity as the perpetrator of the crime, failure of the trial court to give a special jury instruction regarding lost evidence, and the excessiveness of his consecutive sentences. For the reasons that follow, we affirm his convictions and sentences for armed robbery and vacate his conviction and sentence for illegal possession of a stolen thing.

Defendant was charged in a bill of information with two counts of armed robbery in violation of La. R.S. 14:64 and one count of illegal possession of a stolen thing valued over $500.00 in violation of La. R.S. 14:69. He pled not guilty and filed several pre-trial motions, including motions to suppress identification and |shis statements, which were denied after a hearing. Defendant proceeded to trial on April 10, 2013. After a three-day trial, a 12-person jury found him guilty as charged on all three counts. The trial court subsequently sentenced Defendant to 50 years imprisonment without the benefit of parole, probation or suspension of sentence on each of the two armed robbery convictions and ten years for his illegal possession of a stolen thing conviction. The trial court ordered the sentences to run consecutively to each other.

FACTS

At approximately 11:00 p.m. on August 17, 2010, Lindsay Conaway returned home after grocery shopping to an apartment complex on Edenborn in Metairie where she lived with her father. As she was getting things off the passenger seat of her Pontiac G-6, she felt something small pointing into the back of her neck and heard, “Give me your money.” She turned around and saw two men in front of her, one of whom was pointing a revolver at her. When Ms. Conaway stated that she had no money, the man with the gun took her cell phone and the other man, who Ms. Conaway later identified as Defendant, got into her car and tried to back it up. Ms. Conaway’s father, whom she had previously identified to the perpetrators as a police officer, started coming down the apartment stairs at which time the man with the gun ran away with Ms. Conaway’s cell phone and a grocery bag while Defendant exited the vehicle and ran in the opposite direction. Ms. Conaway’s father immediately called 911 and reported the robbery.

A few minutes later, at approximately 11:13 p.m., Deputy Anthony Buttone, with the Jefferson Parish Sheriffs Office, responded to the 911 call. He spoke to Ms. Conaway, who gave a description of the two men. She described the gunman as being 5'6", 165 pounds, wearing all black and a white baseball cap, and the man [4who got into her car as being 6'0" to 6'2" with a bald or shaved head, weighing approximately 265 pounds, and wearing black shorts and a black t-shirt.

About ten minutes later, at 11:23 p.m., Defendant was stopped by a police officer nearby on Division St. as a suspicious person because he matched the description of one of the armed robbery suspects, which was an older black male wearing dark colored clothing. Defendant was wearing black jeans and a black t-shirt when he was stopped. The officer completed a field interview card but did not detain Defendant because he was very calm, lived in the area, and explained that he was walking back to his residence from a nearby convenience store.

Approximately two hours later, around 1:15 a.m., Kelly Barrera arrived home to her apartment complex on Division St., two blocks away from Edenborn. When she exited her car, a man walked up to her and put a gun to her forehead. The man demanded everything she had and threatened to kill her. Ms. Barrera put everything she had on a car, after which the man ordered her to lie flat on the ground. Ms. Barrera saw the man’s feet walk away and towards her car, a 2002 Toyota Canary. She then heard her car start and saw the brake lights of her car as it disappeared. Ms. Barrera waited a few seconds, ran upstairs to her apartment, and told her fiancée what happened. Her fian-cée then called 911 and relayed a description of the perpetrator.

Throughout the entire ordeal, Ms. Barrera only saw one person, whom she later identified in a photographic lineup as co-defendant, Manuel Clark. She explained at trial that she subsequently learned two people had been arrested for the robbery, one of whom was Defendant. Ms. Barrera testified that she knew Defendant because he lived near her for the past two years in the same apartment complex. Ms. Barrera stated that she did not see Defendant on the night she was robbed.

|¡iOn the afternoon of the robbery, at approximately 5:30 p.m., Ms. Barrera’s fi-ancée, Stephan Howard, was on his way to work when he saw Ms. Barrera’s Camry. He called 911 and proceeded to follow the vehicle. While following the car, Mr. Howard saw a police unit and told the officer that the car had been stolen. The officer stopped the vehicle and detained the driver, whom Mr. Howard recognized and later identified as Defendant. Defendant told the officer that a white girl had given him the car; however, shortly thereafter, the officer received information via radio that the car was involved in a carjacking at which time he placed Defendant under arrest.

Meanwhile, Detective Cedric Gray had been investigating the first armed robbery of Ms. Conaway on Edenborn. Shortly after the robbery, he met with Ms. Cona-way at the scene. Detective Gray developed Defendant as a suspect in the first armed robbery after he learned Defendant had been stopped in the area right after the robbery because he matched the description of one of the perpetrators. Detective Gray prepared a photographic lineup with Defendant’s photograph and showed it to Ms. Conaway the next afternoon at 5:30 p.m. Ms. Conaway immediately identified Defendant as the man who entered her car. Thereafter, Detective Gray obtained an arrest warrant for Defendant and a search warrant for his residence. Execution of the search warrant yielded a black t-shirt and black pants.

After his arrest, Defendant gave three statements after being advised of and waiving his rights. He gave his first statement at 8:18 p.m., specifically in reference to the second armed robbery on Division St. Defendant stated that Manuel Clark came to his apartment around 9:30 p.m. the previous night to hang out. The two walked to a nearby Circle K convenience store and then returned to the parking lot of Defendant’s apartment complex. According to Defendant, Clark |fileft while Defendant went inside his apartment. Clark later called Defendant’s cell phone and told him to come outside where Clark was driving a dark colored car that Clark indicated belonged to his girl. The two then drove around the city. Defendant explained that at some point, Clark told Defendant he could take the car, which he did and was later stopped by the police.

Defendant gave a second statement at 9:53 p.m., which was specifically in reference to the first armed robbery on Eden-born. In his second statement, Defendant admitted being with Clark on Edenborn at 11:10 p.m. when Clark pulled a pistol on a girl and tried to rob her, but Defendant said he had nothing to do with it. He denied saying anything to the victim, taking anything from her, or getting inside her car. Defendant explained Clark ran while he walked away when the girl’s father came down the stairs.

Defendant gave a final statement at 11:48 p.m., in reference to the second armed robbery on Division St. In this third statement, Defendant admitted being with Clark at the Division St. apartment complex when Clark robbed a lady of her car while armed with a pistol, but claimed he did not know Clark was going rob anyone. Defendant explained he was 10-15 feet away from Clark when Clark walked up to the lady and pointed a gun at her, at which time she gave Clark the keys to the car. Defendant watched Clark get into the car and drive away. Defendant met up with Clark 20 minutes later when Clark came back to the complex and Defendant got into the stolen car, and the two drove around the city.

\ .DISCUSSION

Sufficiency of Evidence

Defendant challenges his conviction for the armed robbery of Kelley Barrera on Division St., claiming the evidence was insufficient to prove his identity as the perpetrator of the offense. Specifically, Defendant argues Ms. Barrera only saw one robber and identified that person as Manuel Clark. Defendant further asserts that he did not know Clark was going to rob anyone and that once Clark drove away in the car, he walked away.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing all evidence, both direct and circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97); 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

Armed robbery is defined as (1) a taking, (2) of anything of value, (3) from the person of or in the immediate control of another, (4) by use of force or intimidation, (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Hernandez-Zuniga, 11-378 (La.App. 5 Cir. 12/13/11); 81 So.3d 129, 132, writ denied, 12-28 (La.4/20/12); 85 So.3d 1268. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove a defendant’s identity as the perpetrator. State v. Draughn, 05-1825 (La. 1/17/07); 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

La. R.S. 14:24 provides that all persons concerned in the commission of a crime, whether present or absent, and whether he directly commits the offense, aids and abets in its commission, or directly or indirectly counsels or procures another |sto commit the crime, are principals. A principal is liable just as the person who directly commits the crime. State v. Falkins, 04-250 (La.App. 5 Cir. 7/27/04); 880 So.2d 903, 913, writ denied, 04-2220 (La.1/14/05); 889 So.2d 266, and writ denied sub nom. State ex rel. Simms v. State, 04-2171 (La.5/20/05); 902 So.2d 1045.

Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state, and the mental state of one defendant may not be imputed to another defendant. Thus, mere presence at the scene of a crime does not make one a principal to the crime. However, it is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention. State v. Petty, 12-278 (La.App. 5 Cir. 10/30/12); 103 So.3d 616, 623. Though intent is a question of fact, it may be inferred from the circumstances. Falkins, supra.

Armed robbery is a general intent crime. General intent is sufficient and is present “when circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). An offender has the requisite intent when “from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result.” State v. Smith, 07-2028 (La.10/20/09); 23 So.3d 291, 297-98.

The state may prove a defendant guilty by showing that he served as a principal to the crime by aiding another. Under this theory, the defendant need not factually take anything to be found guilty of the crime of armed robbery. State v. Womack, 47,639 (La.App. 2 Cir. 1/16/13); 109 So.3d 418, 424, writ denied, 13-304 (La.9/20/13); 123 So.3d 163. Additionally, a defendant convicted as a principal to armed robbery need not have personally held a weapon to be guilty. Id.

Defendant first argues that the State failed to prove his identity as the perpetrator of the armed robbery of Ms. Barrera because she testified that there was only one perpetrator, whom she identified as Clark. However, Defendant admitted in his own statement that he was present with Clark, standing only 10-15 feet away, at the time Clark robbed Ms. Barrera of her car.

Defendant next argues that he had no knowledge that Clark was going to rob Ms. Barrera and that his mere presence at the scene is insufficient to make him a principal to the armed robbery. We find the record sufficiently shows that the fact finders could have reasonably believed that Defendant knew Clark was going to rob Ms. Barrera and that Defendant sufficiently participated in the offense so as to be guilty as a principal.

In State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01); 802 So.2d 937, writ denied, 01-3406 (La. 10/4/02); 826 So.2d 1122, this Court upheld the defendant’s armed robbery conviction as a principal when he took no actions to prevent the robbery, which occurred in his presence, and he did not leave the scene until his accomplice was safely back in the car. This Court explained that the jury could have reasonably inferred the defendant had the requisite intent to commit the crime in that he aided in its commission by acting as the lookout and driver of the get-away car.

In the present case, the record shows Defendant participated in an armed robbery with Clark only two hours before the robbery of Ms. Barrera. In the first | inrobbery, Defendant unsuccessfully attempted to take the victim’s car after Clark held the victim at gunpoint. During the robbery of Ms. Barrera, Defendant admitted he was only 10-15 feet away from Clark when Clark approached the victim and pointed a gun at her. Defendant stood by while Clark obtained the victim’s keys at gunpoint. He waited until Clark drove away before he walked away from the scene. He then joined Clark in the stolen vehicle 20 minutes later and the two drove around the city. After dropping Clark off, Defendant continued to drive Ms. Barrera’s vehicle until he was apprehended by Kenner police.

We find this evidence was sufficient for the jury to reasonably infer that Defendant had the requisite intent to commit armed robbery and aided in its commission by standing by and acting as a lookout. Defendant had been with Clark for several hours prior to the robbery of Ms. Barrera and had participated in the armed robbery of another victim two hours earlier. He stood by during the robbery of Ms. Barrera and did nothing to prevent it. He did not leave the scene until Clark had successfully obtained the victim’s car, and instead of attempting to call the police or aid the victim, he joined Clark in the stolen car within a few minutes of the robbery.

Accordingly, we find the evidence, when considered in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Defendant was guilty of being a principal to armed robbery.

Special Jury Charge

Defendant argues the trial court erred in failing to give the jury a special jury charge regarding the lost audio tape of his second recorded statement. Defendant contends the jury should have been instructed that there is a presumption that any |nevidence lost or destroyed while in the State’s control would be beneficial to the defendant.

During trial, several State witnesses testified that the microcassette tape of Defendant’s second recorded statement, taken by Detective Cedric Gray on August 18, 2010, could not be located. Detective Gray testified that after taking Defendant’s statement, he placed the tape on the secretary’s desk for transcription. Lyndi Kim-ble, a transcription secretary with the Jefferson Parish Sheriffs Office, testified that she transcribed the statement at issue. Detective Gray stated that he reviewed the transcript for inaccuracies and found none. He testified that State’s Exhibit 89 was an accurate reflection of what was on the tape.

During trial, Defendant filed a written motion for special jury instructions pursuant to La.C.Cr.P. art. 807, seeking to have the trial court charge the jury with the following:

DESTRUCTION OR FAILURE TO PRESERVE EVIDENCE.

When evidence is under the control of the State of Louisiana and is destroyed, not preserved or not otherwise made available for production to the defendant, it should be presumed that said evidence would have been favorable to the defendant. Thus, if you find that certain evidence was under the control of the Jefferson Parish Sheriffs Department or the Jefferson Parish District Attorney and that said evidence was destroyed, not preserved or not otherwise made available for production to the defendant, you should presume that said evidence would have been favorable to the defendant in this case.

At a charge conference before closing arguments, the trial court denied the motion. The trial court noted that the missing tape was transcribed in the normal course and scope of the investigation and that the transcriptionist and investigating officer found no inaccuracies after checking the transcript against the tape. The trial court further noted that the accuracy of the transcript of the missing microcassette tape was not in question. The trial court concluded that Defendant was not entitled to the presumption he sought. It further found the proposed instruction would only | ^confuse the jury by suggesting the transcript of the tape was inaccurate when two witnesses testified as to its accuracy.

The trial court is required to charge the jury as to the law applicable to the case. La.C.Cr.P. art. 802. Under La. C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. The special charge need not be given if it is included in the general charge or in another special charge to be given. State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10); 54 So.3d 678, 686, writs denied, 10-2758 (La.4/25/11); 62 So.3d 89 and 10-2752 (La.5/20/11); 63 So.3d 974. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. Id.

We find no error in the trial court’s refusal to give the requested special charge because it was not wholly correct or pertinent in the present case. Defendant’s special jury request was based on the theory of spoliation of evidence, which is the intentional destruction of evidence for the purpose of depriving the opposing party of its use. As explained in State v. Goosby, 47,772 (La.App. 2 Cir. 3/6/13); 111 So.3d 494, 503, writ denied, 13-760 (La.11/1/13); 125 So.3d 418,

Spoliation creates a presumption that the evidence was destroyed because it would have been detrimental to one’s case. The presumption of spoliation is not applicable when failure to produce the evidence is adequately explained. It is generally utilized in civil litigation. In criminal cases, a defendant is not deprived of his due process rights based on the state’s failure to preserve potentially exculpatory evidentiary material unless bad faith is demonstrated. To receive the adverse inference, both destruction of evidence and bad faith is required. [Internal citation omitted.]

Defendant does not claim the microcas-sette tape contained exculpatory evidence or that it contained any statements other than those that appear in the transcript of the audio tape. Further, the State explained that the tape was not [ ^produced at trial because it had been lost; however, the tape had been transcribed before it was lost, and the State offered two witnesses to show the accuracy of the transcription. Defendant does not deny that he gave a statement to Detective Gray in which he implicated himself in the armed robbery of Ms. Conaway. Thus, we find the requested jury charge was not wholly correct or applicable to Defendant’s case, and that the trial court properly denied Defendant’s request to give it.

Excessiveness of Consecutive Sentences

Defendant contends the trial court erred in imposing consecutive sentences, which total 110 years imprisonment, without specifying reasons. Defendant argues that the consecutive nature of his sentences render them unconstitutionally excessive.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Jones, 12-750 (La.App. 5 Cir. 5/16/13); 119 So.3d 250, 258. Further, when the consecutive nature of sentences is not specifically raised in the trial court, the issue is not included in the bare constitutional excessiveness review, and the defendant is precluded from raising the issue on appeal. Id.

The record reflects thát Defendant orally objected to his sentences, but failed to state any grounds for his objection. Further, although he indicated at the time of his objection that he would file a motion to reconsider sentence, he never did so. At no time did Defendant object to his sentences in the trial court on the basis of their consecutive nature. Accordingly, Defendant is not entitled to a review of the consecutive nature of his sentences on appeal, but is limited to a review of his sentences for constitutional excessiveness. Jones, supra.

114The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03); 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent an abuse of that discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Hernandez-Zuniga, 81 So.3d at 134.

Defendant was sentenced to 50 years on each of his armed robbery convictions. The sentencing range for armed robbery is ten to 99 years; thus, Defendant received a mid-range sentence on each conviction. La. R.S. 14:64(B). We do not find Defendant’s sentences grossly disproportionate to the crimes committed, and the sentences do not shock our sense of justice.

We note that similar sentences for armed robbery convictions where the defendant is convicted as principal range from 35 to 50 years. In State v. Hernandez-Zuniga, 81 So.3d at 135, this Court found the defendant’s 35-year sentence for being a principal to armed robbery was not constitutionally excessive. In State v. Womack, 47,639 (La.App. 2 Cir. 1/16/13); 109 So.3d 418, 426, writ denied, 13-304 (La.9/20/13); 123 So.3d 163, the Second Circuit held that the defendant’s 50-year sentence for being a principal to armed robbery was not | ^constitutionally excessive. Additionally, in State v. Bridges, 09-886 (La.App. 1 Cir. 10/27/09), [2009 WL 3447424] (unpublished opinion), writ denied, 09-2490 (La.4/23/10), 34 So.3d 269, the First Circuit concluded that a 50-year sentence for being a principal to armed robbery was not constitutionally excessive.

Based on the foregoing, we do not find Defendant’s 50-year sentences on each of his armed robbery convictions to be constitutionally excessive nor can we say the trial court abused its wide discretion in imposing such sentences.

ERRORS PATENT

Pursuant 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), we conducted an error patent review of the record and find Defendant’s convictions for both armed robbery (count two) and possession of the thing stolen during the robbery (count three) violate his right against double jeopardy.

The Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense, but also protect against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Murray, 00-1258 (La.9/18/01); 799 So.2d 453, 455.

A defendant may be charged in the same indictment for theft, or a crime of which theft is an essential element, and for receiving stolen things; however, a defendant may only be found guilty of either of the offenses charged. The State is not required to choose between the two offenses charged, but a defendant cannot be found guilty of both offenses. La.C.Cr.P. art. 482(A); State v. Robertson, 386 So.2d 906, 908 (La.1980).

|1fiIn the present case, the trial judge failed to instruct the jury that it could only convict Defendant of either the armed robbery of Ms. Barrera or illegal possession of a stolen thing, but not both. Defendant was ultimately convicted of both offenses, thereby violating his right against double jeopardy, a fact to which the State concedes in its appellee brief. See State v. Peden, 04-71 (La.App. 5 Cir. 5/26/04); 875 So.2d 934, 948-49, where this Court recognized in an error patent review that the defendant’s convictions for armed robbery and possession of the car taken in the robbery constituted a double jeopardy violation.

Where multiple punishments have been imposed in violation of double jeopardy, the remedy is for the reviewing court to vacate the conviction and sentence of the less severely punishable offense and affirm the conviction and sentence for the more severely punishable offense. State v. Dixon, 96-407 (La.App. 5 Cir. 11/26/96); 685 So.2d 310, 313. Accordingly, we vacate Defendant’s conviction and sentence for illegal possession of a stolen thing, which is the less severely punishable offense.

Additionally, we find the trial court failed to advise Defendant of the two-year time period for filing an application for post-conviction relief as required by La.C.Cr.P. art. 930.8. Although the commitment indicates the trial court advised Defendant of the prescriptive period for seeking post-conviction relief, the transcript is completely devoid of any such advisal. Where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). As such, we advise Defendant, by this opinion, that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922. See State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13); 113 So.3d 1129,1143.

\ ^DECREE

Defendant’s convictions and sentences for his two armed robbery convictions are affirmed. His conviction and sentence for illegal possession of a stolen thing are vacated because they violate Defendant’s right against double jeopardy.

ARMED ROBBERY CONVICTIONS AND SENTENCES AFFIRMED; CONVICTION AND SENTENCE FOR ILLEGAL POSSESSION OF A STOLEN THING VACATED.

      . The bill of information also charged co-defendant Manuel Clark with two counts of armed robbery. Defendants were severed for purposes of trial.

      . On the same day Defendant was sentenced, the State filed a multiple offender bill of information alleging Defendant to be a second felony offender, but later dismissed it.

      . Because we must vacate Defendant's conviction for illegal possession of a stolen thing, as discussed infra in our errors patent review, we need not review Defendant’s 10-year sentence for said conviction for excessiveness.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Justin BUTLER.
    No. 13-KA-850.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for plaintiffiappel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

|2Defendant, Justin Butler, appeals his conviction and sentence for illegal possession of stolen firearms, a violation of La. R.S. 14:69.1, contending the trial court erred in denying his motion to suppress the evidence and statement. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 25, 2012, the St. Charles Parish District Attorney filed a bill of information charging defendant, Justin Butler, with illegal possession of stolen firearms in violation of La. R.S. 14:69.1 (count one); convicted felon possessing a firearm or carrying a concealed weapon in violation of La. R.S. 14:95.1 (count two); and possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E) (count three). On that same date, defendant was arraigned and pled not guilty. Defendant’s motion to suppress was denied on February 5, 2013.

|sOn March 4, 2013, the prosecutor advised the trial judge that the State would proceed to trial on count one only. The next day, the case was tried before a six-person jury that found defendant guilty as charged on count one. Defendant subsequently filed a Motion for Post-Verdict Judgment of Acquittal and/or Motion for New Trial on March 11, 2013, that was denied. On July 9, 2013, the trial judge sentenced defendant to five years in the Department of Corrections, and the State nolle prossed counts two and three. On that same date, defendant filed a timely motion for appeal that was granted.

FACTS

At trial, Trooper Gustave Bethea, of the Louisiana State Police, testified that on July 29, 2012 at around 7:30 a.m., he was monitoring traffic on Interstate 310 when he observed a speeding vehicle, a two-door Ford Mustang, traveling southbound from behind him. Using radar, Trooper Bethea determined that the vehicle was going 82 miles per hour. The trooper got behind the vehicle and activated his emergency lights in order to make a traffic stop. In response, the driver of the vehicle pulled over to the right shoulder on the elevated portion of the roadway. Trooper Bethea signaled and ordered the driver to exit his vehicle, but the driver did not comply immediately. As such, the trooper approached the vehicle and again asked the driver to exit his vehicle. The driver now complied with the trooper’s command and exited the vehicle.

Afterward, Trooper Bethea asked to see his driver’s license. The driver reached into his pocket, pulled out his driver’s license, and handed it to the trooper. When he did so, Trooper Bethea saw that the driver’s hand was trembling more excessively than what he normally sees as a result of a traffic stop. In response to the trooper’s generic questions, the driver initially maintained eye contact with him and answered the questions calmly and confidently. Trooper Bethea then asked the 14driver if there were any weapons in the vehicle, and the driver broke eye contact and said “no” in a less audible voice.

Trooper Bethea testified that those observations of the driver raised “red flags” for him and had him concerned about officer safety. Since the trooper was by himself and he could see there were three passengers in the vehicle, he conducted a pat down of the driver for officer safety but did not feel anything. Afterward, he had the driver sit down by the front of the police vehicle on the shoulder and lean his back against the bridge rail. Next, Trooper Bethea approached the vehicle and asked the front-seat passenger to exit the vehicle, and he complied. He then asked the front-seat passenger if he had any weapons in the vehicle, and the front-seat passenger said, “No.” Trooper Bethea conducted a pat down of the front-seat passenger for weapons but did not find any. Afterward, the trooper had the front-seat passenger walk to the front bumper of the vehicle.

Next, Trooper Bethea made contact with the “right” rear-seat passenger, who was later identified as defendant, Justin Butler. The trooper observed that defendant was not wearing a seat belt and that his hands were in between his legs below the seat line. The vehicle was dark inside and the trooper could not clearly see defendant’s hands. Therefore, Trooper Bethea asked defendant to place his hands on top of the front-passenger head rest, and defendant complied with that request. Afterward, the trooper asked defendant to step out of the vehicle, and defendant complied with that request as well. Trooper Bethea then asked defendant if he had any weapons, and defendant said, “Who me?” The trooper repeated the question, and defendant then responded, “Not that I know of.”

Trooper Bethea thought defendant’s responses were odd, especially in conjunction with the driver’s response. Therefore, the trooper conducted a pat-down of defendant but did not find anything. Trooper Bethea testified that while |fistanding next to defendant, he could smell the odor of marijuana coming off of defendant’s clothing. He also noted that defendant was very nervous, and he could feel defendant’s heart pounding, much more so than the other passengers he had conducted pat-downs on. Trooper Bethea then asked defendant to step to the front bumper near the right front-seat passenger, and defendant complied. Afterward, the trooper asked the “left” rear-seat passenger to step out of the vehicle, and he complied. Trooper Bethea then asked the “left” rear-seat passenger if he had weapons on him, and he said, “No.” The trooper patted down that passenger but did not find anything. The trooper got no overt indications of nervousness from him. He had that passenger step out of the vehicle and sit next to the driver.

Trooper Bethea testified that he still felt uncomfortable, since there were four individuals outside the vehicle, and he was by himself. Therefore, he felt it necessary to conduct a protective sweep of the vehicle to make sure there were no weapons inside, in the event one of the passengers went back to the vehicle. Trooper Bethea went to the front driver’s side of the vehicle. As soon as he stuck his head inside he could smell unburned, fresh marijuana. The trooper looked under the driver’s seat but saw no weapons. He looked in the “left” rear side and did not see any weapons. Trooper Bethea moved to the right front passenger-side and looked under the seat but did not see any weapons. He opened the center console, smelled an “overwhelming” odor of marijuana, and saw a clear baggy with green vegetable matter sitting on top of the interior of the console.

The trooper then looked in the “right” rear side. He noticed that the seat was pulled up a little bit creating a small void. Trooper Bethea subsequently looked under the seat and could see the butt of a pistol facing right and ready for a “right handed draw.” He removed the pistol, a 9 mm semiautomatic Glock, called the dispatcher, and asked him to check the serial number — PFG 197. The dispatcher |fidid so and advised that the weapon was listed as stolen. Trooper Bethea testified that there were ten rounds in the magazine and one round in the chamber. At that point, the trooper called for assistance. The trooper then handcuffed all the occupants and was assisted in handcuffing the last one or two by another trooper. Trooper Bethea advised the driver and three passengers of their rights while they were all seated outside the vehicle.

Afterward, defendant told Trooper Be-thea that the weapon was his and that he acquired it for protection because he feared for his life. The driver subsequently admitted that the marijuana was his. The other two passengers said they did not know about the weapon or the marijuana, which Trooper Bethea believed after more questioning. Trooper Bethea then arrested defendant and the driver and transported them to the St. Charles Parish lockup. While at lockup, Trooper Bethea presented a rights form to defendant who signed the form and indicated that he understood his rights, was willing to answer questions at that time, and that no pressure or promises had been made for him to give a statement.

Defendant told him that his life had been threatened, that he had not called the police, and that his mother was supposed to call them but.did not. Trooper Bethea told defendant he could have a deputy take a report for him but defendant declined. He asked defendant if he could provide the name of the person who gave him the weapon; however, defendant stated he did not feel comfortable giving him that name. Trooper Bethea asked defendant if he would give a written statement, and his reply was, “Yes, but not now.” The trooper also presented a property receipt form to defendant which indicated that the weapon was being seized from him and the trooper was taking it as evidence. Defendant signed that form. Afterward, he turned defendant over to the sheriffs office and did not see or talk to him again or obtain a written statement from him. Trooper Bethea subsequently 17located the owner of the stolen weapon and returned it. He also testified that part of the stop was captured on videotape, which was shown to the jury.

Jeremy Blouin testified that he owned a Glock 19, 9 mm semiautomatic pistol with serial number PFG 197. He further testified that on June 10, 2012, his pistol was stolen from his vehicle while he and his father attended an LSU baseball game. The weapon was inside his vehicle, when the vehicle was stolen. Mr. Blouin explained that he reported the theft to the LSU police and that they made a report. He asserted that on July 29, 2012, he received a call from the State Police telling him that they had recovered his gun and that he could come and retrieve it, which he subsequently did. Mr. Blouin testified that he had never seen defendant before and that defendant did not have his permission to be in possession of his gun. It was never determined who stole his vehicle.

Defendant disputed Trooper Bethea’s version of events. He testified that on July 29, 2012, he got into the back seat of the vehicle in question with the driver and two other passengers. The vehicle was traveling down Interstate 310, and he fell asleep. He recalled that when he woke up, the driver was speeding. Defendant heard sirens, and a state trooper pulled them over. The trooper approached them and told the driver to exit the vehicle. Defendant claimed that the trooper was aggressive in his questioning and accused them of having a gun in the vehicle. The trooper subsequently positioned the driver in front of the bumper of the trooper’s vehicle and sat him down with his back “against the barrier wall.”

Afterward, the trooper returned to the vehicle and asked the front-seat passenger to exit the vehicle, which he did. The trooper questioned that passenger and then had him step to the back bumper along the right-side rear tire. Defendant contended the trooper put handcuffs on that passenger and had him sit against the bridge. He admitted that he could not hear what the trooper was saying to the other | ¡^individuals. Next, the trooper came to the vehicle and told him to exit the vehicle, and he did. Defendant asserted that when the trooper approached the vehicle, his (defendant’s) hands were on top of his lap and not near the floorboard of the vehicle.

The trooper then told defendant to put his hands on top of the ear, after which the trooper patted him down. The trooper asked him if he had anything on his person, and he said, “No.” The trooper also asked defendant if he had knowledge of any drugs or weapons in the vehicle, and he said, “No.” Defendant also remembered that the trooper asked if there were weapons in the vehicle and that he answered, “Not to my knowledge.” Defendant denied responding to the trooper “Who me?” when the trooper asked him about the gun. The trooper subsequently told defendant to step in front of the vehicle away from the front passenger and the driver.

Defendant testified that eventually, the driver and the three passengers were in locations outside and away from the vehicle. Afterward, the trooper searched the vehicle but defendant could not see exactly what he was doing. He did not see what the trooper found or where he found it. When the trooper exited the vehicle, he told them that they had lied to him. Defendant testified that the trooper did not come to him and ask him about the weapon he found. He claimed that the trooper loudly asked all of them who it belonged to and that if nobody told him he would take all of them to jail. Defendant testified that the trooper asked him where he had been seated and that he told the trooper he was sitting in the rear-passenger seat. The trooper then put handcuffs on defendant and brought him back to the police vehicle.

Defendant claimed that the trooper did not read him his rights before handcuffing him. He also claimed that he did not make a statement to the trooper 1^acknowledging possession of the weapon. Defendant testified that he did not know who the gun belonged to and that he did not have any knowledge that there were drugs or weapons inside the vehicle. He explained that he was getting a ride home with the driver and that he had not been in the vehicle with the driver the day before or the evening prior to the incident. Defendant denied telling the trooper that he had the gun for protection because someone had threatened his life. He claimed that the trooper suggested that answer to him. Defendant also denied telling the trooper that he would make a written statement that the gun belonged to him.

Defendant further testified that the trooper never collectively read them their rights before any questioning, nor did the trooper read defendant his rights prior to his reaching the jail. He asserted that he was left-handed and that the trooper never asked him if he was right or left-handed. Defendant claimed that he did not understand the rights form that was presented to him and that he only signed it because the trooper confused him. He stated that he did not read the rights form and that the trooper did not go over the rights form with him. Defendant also claimed that he did not read the property receipt he signed and that it was not his understanding that he was acknowledging ownership or possession of the weapon when he signed it. He further testified that although he was seated right on top of the weapon, the ride in the vehicle was “regular and comfortable.”

DISCUSSION

Defendant argues in his single assignment of error that the trial judge erred in denying the motion to suppress evidence. He contends that the officer conducted a full and unwarranted search of the vehicle for evidence unrelated to speeding, and that it was not just a protective sweep since all four occupants were removed from the car and away from the reach of anything inside the vehicle. The l1flState responds that the trial judge did not err in denying the motion. It argues that Trooper Bethea was reasonably concerned for his safety and justified in searching the vehicle for weapons since he observed the driver and defendant show signs of extreme anxiety and odd behavior, and he smelled the odor of marijuana emanating from defendant and the interior of the vehicle.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. War-rantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Wolff, 09-508, pp. 4-5 (La.App. 5 Cir. 12/29/09), 30 So.3d 897, 901.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Lewis, 12-902, p. 6 (La.App. 5 Cir. 6/27/13), 121 So.3d 128, writ denied, 13-1921 (La.4/17/14), 138 So.3d 618. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Lewis, supra. In determining whether the ruling on a motion to suppress was correct, the court is not limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at trial. State v. Washington, 00-1542, p. 12 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 01-940 (La.2/8/02), 807 So.2d 859.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983),11 cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. State v. Waters, 00-356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056 (per curiam).

Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passengers out of the vehicle pending completion of the stop. State v. Brown, 09-209, p. 5 (La.App. 5 Cir. 12/29/09), 30 So.3d 907, 911. Additionally, an officer conducting a traffic stop may perform a pat-down search of a driver and passengers upon reasonable suspicion that they may be armed and dangerous. Id. The Louisiana Supreme Court has recognized there is potential danger for an officer even during a routine traffic stop:

A police officer’s stopping a vehicle for a routine traffic violation sets up the possibility of a significant confrontational situation. The motorist may be driving a stolen vehicle, may be transporting contraband, may be in possession of illegal weapons, or may be involved in other criminal activity. The likelihood of danger may also be greater during darkness and in early morning hours, or when there are a number of occupants. A police officer who stops a vehicle for a routine traffic offense may be exposed, according to the circumstances, to a significant risk of attack, and concern for the safety of the officer may be a legitimate and weighty justification for reasonable intrusions into the privacy interests of the occupants of the stopped vehicle.

State v. Landry, 588 So.2d 345, 347 (La.1991).

In Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983), the Supreme Court recognized that a limited protective warrantless search of the passenger compartment of a vehicle during a Terry stop may be justified if the officer has “specific and articula-ble facts which, taken 112together with the rational inferences from those facts, reasonably warrant [his belief] that the suspect is dangerous and the suspect may gain immediate control of weapons.” Under these circumstances, the officer may conduct a search of the passenger compartment of the automobile, limited to those areas in which a weapon may be placed or hidden. State v. Duhe, 12-2677, p. 10 (La.12/10/13), 130 So.3d 880, 887.

This Court has recognized that since police officers should not be required to take unnecessary risks in the performance of their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. State v. Morton, 08-164, p. 8 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657 (citing State v. Porche, 06-312 (La.11/29/06), 943 So.2d 335, 339).

In the instant case, we find that Trooper Bethea was justified in conducting a limited protective sweep of the vehicle to look for weapons. Trooper Bethea, who had twelve years of law enforcement experience, testified that when the driver handed him his driver’s license, the driver’s hand was trembling more excessively than what he normally sees in a traffic stop. He further testified that the driver made eye contact and answered generic questions calmly and confidently, but when he asked the driver if there were any weapons in the vehicle, the driver broke eye contact and answered “no” in a less audible voice.

Also, when Trooper Bethea approached the vehicle a third time, he observed that defendant’s hands were in between his legs below the seat line. It was dark inside the vehicle and the trooper could not see defendant’s hands clearly. Trooper |13Bethea testified that when he asked defendant if he had any weapons, defendant responded, “Who me?” and that when he repeated the question, defendant replied, “Not that I know of.” Trooper Bethea thought those responses were odd, especially in conjunction with the driver’s response. Further, the trooper noticed that defendant was very nervous, and he could feel defendant’s heart pounding, his entire body trembling, and his hands sweating. When defendant exited the vehicle, Trooper Bethea could smell marijuana coming from defendant’s clothing.

Trooper Bethea testified that after all four occupants had been removed from the vehicle, he still felt uncomfortable because he was by himself and outnumbered. He explained that although all four occupants were outside the vehicle, the area where they all were located was small. He felt that it was necessary to conduct a protective sweep of the vehicle to ensure that no weapons were inside of it in the event one of the occupants went back to the vehicle. Also, the occupants were not handcuffed at that time.

For these reasons, we find that Trooper Bethea had a particularized concern for his safety sufficient to justify a protective sweep of the vehicle for weapons. As such, we further find that the trial judge did not err in denying the motion to suppress. This assignment of error lacks merit.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with 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 5 Cir.1990), regardless of whether defendant makes such a request. The review reveals no errors patent in this case.

DECREE

For the reasons stated above, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . It is noted that the motion is not contained in the record; however, a suppression hearing was held.

      . The jurisprudence indicates that if an officer has reasonable suspicion to stop a vehicle, and an occupant of the vehicle makes a movement during the stop as if attempting to hide an object, the officer has the right to conduct a limited protective sweep of the vehicle. See State v. Wilder, 07-960 (La.App. 5 Cir. 3/25/08), 983 So.2d 124, writ denied, 08-821 (La.10/31/08), 994 So.2d 532; State v. Carver, 531 So.2d 551 (La.App. 5 Cir.1988) (per curiam); State v. Davis, 612 So.2d 256 (La.App. 4 Cir.1992); State v. Archie, 477 So.2d 864 (La.App. 4 Cir.1985). In the instant case, although the trooper did not see defendant make any movement in the vehicle during the stop, he did see defendant's hands below the seat line where the gun was ultimately found.

      . This Court has recognized that because drugs, guns, and violence often go together, this may be a factor tending to support an officer's claim of reasonableness. State v. Thomas, 08-521, p. 9 (La.App. 5 Cir. 1/27/09), 8 So.3d 646, 653, writ denied, 09-391 (La.12/18/09), 23 So.3d 928.

      . See State v. Duhe, 12-2677 (La.12/10/13), 130 So.3d 880. In that case, the Louisiana Supreme Court found that the officer had a particularized concern for his and his partner’s safety sufficient to justify a protective search of the vehicle, noting that it appeared that three of the four suspects were unrestrained and free to reach into the car. Moreover, the supreme court noted that the officer, who was conducting an investigation into drug trafficking, testified that he chose to search the car for weapons because he understood the link between drugs and firearms. Id., 12-2677 at 10-11, 130 So.3d at 887.