author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Sederrius COLEMAN, Appellant.
    No. 49,000-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.
    Teresa C. Carroll, Jonesboro, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Neal G. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, LOLLEY and GARRETT, JJ.
   WILLIAMS, J.

_JjThe defendant, Sederrius Coleman, was charged by amended bill of information with two counts of armed robbery, in violation of LSA-R.S. 14:64. Pursuant to a plea agreement, the defendant pled guilty to one count of first degree robbery, a violation of LSA-R.S. 14:64.1, and the state agreed to dismiss the remaining armed robbery charge. The district court sentenced defendant to serve 25 years at hard labor, without the benefit of parole, probation, or suspension of sentence, in conformity with an agreed-upon sentencing cap. The defendant then appealed his sentence. The defendant’s appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no non-frivolous issues to raise on appeal. For the reasons stated herein, the motion to withdraw is granted and the defendant’s conviction and sentence are affirmed.

DISCUSSION

The record shows that in December 2010, the defendant and another individual went to the Dollar Tree store on Louisville Avenue in Monroe, Louisiana, with plans to commit a robbery. The men followed the two victims, a 77-year-old woman and her 55-year-old daughter, into the parking lot. As the women were getting into their car, the defendant pointed a handgun at one of the women, took their purses and fled the scene. The defendant was arrested and charged with two counts of armed robbery.

During the guilty plea hearing, the district court informed the defendant of his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and the defendant stated Lthat he understood and wished to waive his rights. The defendant acknowledged that he understood the plea agreement and the sentence cap. Also, the defendant stated that he understood that by pleading guilty with an agreed-upon sentencing cap, he was waiving his right to appeal both his conviction and sentence. The trial court accepted the plea and ordered a presentence investigation (“PSI”).

Prior to imposing sentence, the district court reviewed the facts of this case, the PSI report and the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. As aggravating factors, the court found that defendant was aware the victim was particularly vulnerable because of her advanced age and that in committing the offense, defendant knowingly created a risk of death or great bodily harm to more than one person. In mitigation, the court noted that defendant was 17 years old at the time of the instant offense. However, the court also considered the defendant’s multiple acts of delinquency as a juvenile, noting that the defendant had been involved in serious criminal activity since the age of twelve. The court noted that the state had originally charged defendant with two counts of armed robbery and the facts showed he had committed those offenses. Thus, the court found that defendant had substantially benefitted from the plea agreement and the reduced sentence exposure.

On appeal, the defendant’s appellate counsel has filed a motion to withdraw with an Anders brief, which alleges that she could find no non-frivolous issues to raise on appeal. Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App.3 4th Cir.1990). The brief outlines the procedural history and facts of the case and the agreement under which the defendant’s guilty plea was entered. Defense counsel verified that copies of the motion to withdraw and the appellate brief were mailed to the defendant, in accordance with Anders, Jyles, Mouton, and Benjamin, supra.

On December 3, 2013, this Court issued an order, holding the motion to withdraw in abeyance and notifying the defendant that he could file a brief in this appeal within 30 days of the date of the order and file a request to view the appellate record within 10 days of the date of the order. The defendant was further advised that if no brief was timely filed, the appellate record would be reviewed only for error patent. Upon defendant’s timely request, a copy of the appellate record was sent to the records custodian of the correctional facility where the defendant is incarcerated. However, the defendant did not file an appellate brief with this court.

Accordingly, we have reviewed the record for error patent and found none. The record shows that prior to entering his guilty plea, the defendant was properly advised of his Boykin rights, understood the plea agreement, and voluntarily pled guilty. Further, we note that defendant is precluded from seeking review of his sentence, which was imposed in conformity with a plea agreement set forth in the record at the time of the plea. LSA-C.Cr.P. art. 881.2; State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND | ¿SENTENCE AFFIRMED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Christopher Brian COPE, Appellant.
    No. 48,739-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    Charles R. Scott II, District Attorney, Dale G. Cox, Brady D. O’Callaghan, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

hOn October 30, 2012, a unanimous jury found Christopher Brian Cope guilty of one count of first degree murder of a police officer in violation of La. R.S. 14:30. After the jury deadlocked on the sentencing portion of the proceedings, the court imposed a life sentence at hard labor without benefits. Cope appeals his conviction raising three trial errors. We affirm.

Facts

While on duty in the early morning hours of October 24, 2010, Shreveport Police Sergeant Timothy Prunty made a routine stop at a west Shreveport convenience store to check on the employees who worked the night shift. While there, he spoke with his friend and shift clerk, Carey Sonnier. At approximately 3:24 a.m., Sergeant Prunty and Sonnier stood outside the store talking. Sonnier leaned on a grey pole located in front of Sergeant Prunty’s vehicle, and Sergeant Prunty leaned on the hood of his car. Shortly thereafter, the two saw the approach of a red Camaro with very loud exhaust pipes. The driver pulled into the parking lot and stopped three spaces to the left (west) and slightly behind Sergeant Prunty’s car. Thinking she had a customer, Sonnier moved to go back into the store. As she did so, Sonnier heard several popping sounds, saw the flame from a gun and felt Sergeant Prunty shove her as he told her to run. Sonnier ran behind a dumpster and hid behind a fence. She saw the shooter spread his feet and hold the handgun with both hands for stability. Sonnier thought that the shooter was shooting at her as well as Sergeant Prunty. An eyewitness who |j>saw the events from an apartment across the street corroborated Sonnier’s information about the car and the shooter.

Sergeant Prunty returned fire, shattering the glass T-top of the vehicle. The evidence showed that the driver fired 14 rounds from a .40 caliber Smith and Wesson gun and Sergeant Prunty fired 11 times from his Glock .22 police-issued pistol.

From behind the fence Sonnier saw the driver pull away slowly and calmly. She ran back to the front of the building and saw a police car driven by Corporal Naomi Johnson approaching. Johnson was in the area when she heard gunshots and dispatched a shots-fired call. She traveled in the direction of the shots and noticed Son-nier flagging her down. Sonnier directed Johnson to Sergeant Prunty; she noticed blood around his leg area. Johnson made the call for help at approximately 3:33 a.m. From information given to her by Sonnier, Johnson was able to give a description of the driver and his vehicle as well as information that he was traveling west from the convenience store.

In the meantime, Shreveport Police Officer Lacey Durham who was trained as an emergency medical technician, overheard Johnson’s call and traveled to the scene at approximately 3:37 a.m. She recognized Sergeant Prunty and attempted treatment. The Shreveport Fire Department arrived at the store at approximately 3:39 a.m. Lifesaving measures were attempted and Sergeant Prunty was transported to a local hospital where he later succumbed to his injuries. The autopsy indicated that he received five gunshot wounds to both legs and feet; the leg wounds were inflicted from behind. Sergeant Prunty’s cause of death was loss of blood, which resulted | ^largely from a laceration of the popliteal artery in his left upper leg; the bullet also fractured his distal femur and kneecap. A second wound to his upper left leg shattered his left femur and caused blood loss.

After the description of the vehicle and driver was broadcast, several Shreveport police patrol officers began looking for a red Camaro driven by a white, heavyset male with a goatee. Shortly thereafter, several officers saw the vehicle and pursued the driver for eight to ten minutes before the vehicle stopped in a hotel parking lot. Glass particles fell from the Ca-maro’s T-top throughout the chase.

Upon stopping the vehicle at 3:51 a.m., the driver opened his car door, held up a handgun, ejected its magazine and a live cartridge and dropped the weapon onto the pavement before standing up from the car. Upon being ordered to drop to the ground, the driver slowly complied and police eventually handcuffed him. When the driver would not yield his right arm, officers utilized distraction strikes to his hands, back, rib and shoulders. The suspect was advised of his rights and placed in a patrol vehicle. He informed a Shreveport Police Detective that his name was Christopher Cope. Because Cope was actively bleeding from abrasions above the eye and on his cheek, he was provided treatment from the Shreveport Fire Department.

Cope was transported to the Shreveport Police Department, Violent Crimes Bureau, at approximately 5:00 a.m. He was kept separate from other witnesses and made comfortable. His transport officers stayed with him in 1¿the room for approximately 30 minutes to an hour, and Cope made no statements to them other than asking how “he” was.

Cope was interviewed at 7:00 a.m., after being read his rights a second time. In a statement, Cope admitted to being the shooter, but suggested that he wanted the police officer to kill him. Cope indicated that he drank six or seven beers earlier in the evening but was not drunk. He had watched fights at a friend’s house, hung out with a group of friends who had gathered on a local roadway, and visited a girlfriend. It was after he left the friend’s house that he shot at the security guard house of a local subdivision across town with his Smith and Wesson .40 caliber gun. He then stopped at the convenience store intending to get a beer. He claimed that he did not make enough money to support himself, was still living at home, and was in a “funk.” He stated that his mind “went blank” and he “done what [he] done.” He had “no reasonable explanation” for it other than his “stupidity.”

Sonnier was able to identify Cope as the shooter in a photographic lineup. On December 2, 2010, a grand jury indicted Cope for the first degree murder of Sergeant Prunty. Trial began on October 25, 2012. Cope was convicted as charged and sentenced to life imprisonment. He has appealed his conviction.

Discussion

Motion to Suppress

lRIn his first assignment of error Cope argues that the trial court erred in denying a motion to suppress his confession, which was the product of fear, duress and intimidation. On June 16, 2011, Cope asserted these grounds in a pretrial motion to suppress his confession, which was denied. On appeal, Cope contends that his vulnerability was compounded by threats and abuse he experienced during his arrest. Specifically, he argues that he was kicked and punched by officers as he was apprehended. He also contends that the officer (Allgrunn) who read him his rights called for violence against him and that the transporting officer (Hodges) had struck him during his arrest. Those actions allegedly would have caused “a reasonable person in Mr. Cope’s shoes to believe that he had to confess.” Cope also argues that his inability to obtain Shreveport Police Department regulations and guidelines dealing with distraction strikes or the identity of other officers who administered distraction strikes to him, prevented him from developing facts underlying the vol-untariness of the confession.

Before what purports to be a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; State v. Holmes, 06-2988 (La.12/2/08), 5 So.3d 42, cert, denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel a confession of crime. La. R.S. 15:452.

Louisiana Code of Criminal Procedure Article 703 provides, in part:

B. A defendant may move on any constitutional ground to suppress a | ^confession or statement of any nature made by the defendant.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
G. When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.
A ruling made adversely to the defendant prior to trial upon a motion to suppress a confession or statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Collier, 39,650 (La.App.2d Cir.7/27/05), 909 So.2d 23, writ denied, 06-0308 (La.9/1/06), 936 So.2d 196; State v. Collier, 34,774 (La.App.2d Cir.6/20/01), 792 So.2d 793, writ denied, 01-2199 (La.6/7/02), 817 So.2d 1142.

The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his or her Miranda rights. Holmes, supra; Callier, supra. When claims of police misconduct are raised, the State must specifically rebut the allegations. Holmes, supra.

In determining whether a ruling on a motion to suppress is correct, an |7appellate court is not limited to evidence adduced at the hearing on the motion, but also may consider pertinent evidence given at trial. State v. White, 39,681 (La.App.2d Cir.5/11/05), 903 So.2d 580; State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993). A trial judge’s ruling on whether a statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Vigne, 01-2940 (La.6/21/02), 820 So.2d 533.

Low intellect, moderate retardation or diminished mental capacity does not per se and invariably vitiate capacity to make a free and voluntary statement or a knowing and intelligent Miranda waiver. Holmes, supra; State v. Manning, 03-1982 (La.10/19/04), 885 So.2d 1044, cert, denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005); State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272. Any mental incapacity is an important factor to consider in deciding the voluntariness of a confession. State v. King, 41,084 (La.App.2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07), 949 So.2d 411. Voluntariness is determined on a case-by-case basis, under a totality of the circumstances standard. Manning, supra; King, supra.

The fact that an officer used force to subdue an arrestee is certainly an element which the judge should consider on the question of voluntariness. However, other evidence may convince a judge beyond a reasonable doubt that the statement was voluntary. State v. White, 329 So.2d 738 (La.1976). That the force used is neither excessive nor designed to compel a confession |sare factors appropriately considered in the determination of volun-tariness. Id.

At the hearing on the motion to suppress, the defense examined five of the Shreveport Police officers who secured Cope and placed him in custody. Each of these officers also testified at trial.

Officer Jason Allgrunn testified he was one of the six or seven officers who converged upon Cope when he exited his car. Allgrunn read Cope his rights at a distance of approximately six inches from his left ear as he was lying face down. Cope indicated he understood his rights by nodding. Cope softly told Allgrunn that he was not resisting arrest. Allgrunn did not smell alcohol on Cope’s breath.

Allgrunn stated that he never threatened Cope, did not promise anything to him or strike his person. He saw no other officer strike Cope and did not hear anyone threaten him or promise him anything. Allgrunn admitted that he made two statements, which can be heard on his mobile video system (“MVS”). Those included his comments that “I wish you would have pointed that at us,” and “Give this guy some love.”

Sergeant Wiley Lindsey testified that once Cope was on the ground, numerous officers assisted in taking him down. He indicated that “they were trying to place his hands behind his back, and he kept resisting, wouldn’t put both of them behind his back.” Lindsey testified that “distraction strikes” were used in an attempt to get Cope’s hands behind his back for handcuffing. He stated the strikes were performed with fist blows upon Cope’s arms, leg, thigh, and sides until he gave up his hands.

|flLindsey’s MVS was played, and he narrated it. He acknowledged hearing vulgarity on the tape at the time of Cope’s arrest, but did not know who made the statements. He stated that Cope did not respond in any way to the language. He stated that after Cope’s arrest, he was treated by the Shreveport Fire Department for abrasions on his face and arms. Lindsey described the abrasions as being from the pavement because Cope was face down.

Exhibit S-l included the MVS evidence from both Sergeant Lindsey’s and Officer Allgrunn’s vehicles. The exhibit also contained the MVS evidence from Corporals Tabor’s and Hodges’ vehicles, two officers who assisted in Cope’s arrest but did not testify at the hearing.

Notably Sergeant Tabor’s MVS was the only one to depict the details of Cope’s arrest. It showed that upon the officers’ verbal commands to Cope to lie on the ground, he slowly complied, lying face down on the pavement. Thereafter, 9 to 11 officers converged upon Cope. The video shows the securing officers having difficulty in handcuffing Cope’s right hand. In an effort to secure the hand, Officer Hodges administered one. or two strikes to his back, and one unnamed officer kicked him once near his upper body. Another officer administered several fist strikes near his shoulders. Within seconds thereafter, Cope’s hand is secured, and he is handcuffed at approximately 3:32 a.m.

All officers then removed themselves from Cope. He was turned on his back and searched. He was placed face down again where he remained until 4:11 a.m., when he was placed in Officer Hodges’ vehicle. In this interim period, officers are seen standing near Cope. Notably, one officer l^can been seen leaning over Cope and yelling at him. A second officer leaned down near Cope’s ear for a few seconds as if he were whispering to him, although nothing can be heard on the video.

A photograph of Cope was taken at the police station after his arrest. It shows minor abrasions around Cope’s right eye and cheek.

Lieutenant Jimmy Muller testified that in his position as the Detective Bureau Executive Officer, he assigned tasks for the detectives servicing the case. He instructed Officers Hodges and Minor, who transported Cope to the station, to maintain Cope as a suspect separate from any other witnesses. Cope was taken to the property crimes unit and placed in an empty office. Hodges sat with Cope in the room with Minor outside the door. Muller asked Cope if he wanted him to call his father. Cope declined the offer but stated that he was thirsty. He was provided water and allowed to take his handcuffs off while waiting to be interviewed. Restroom facilities were provided for Cope. Muller did not ask Cope anything or threaten or promise anything to him. Cope appeared lucid to Muller. He stated that Cope did not appear to be intoxicated or under the influence of anything.

Sergeant Jody Jones testified that he was in charge of the day shift homicide unit and was on call the weekend of this event. Jones and Detective Lane Smith interviewed Cope, having waited until other witnesses had first been interviewed.

Cope was interviewed at 7:00 a.m. No pre-interview was conducted. In fact, Jones had no contact with Cope prior to the formal interview. An audio recording of the interview was placed in evidence. Jones testified that videotape recorders were never used in his division.

|nJones testified that Cope was read his rights a second time prior to giving a statement. Cope was not upset or emotional. Jones identified a copy of the waiver form signed by Cope. Jones recalled that Cope understood what was being shown to him. He did not appear to be intoxicated, was offered no inducement to sign the document, was not promised any benefit for giving a statement, and was not threatened in any way. Cope was not tested for intoxication. Cope signed the form and verbally acknowledged that he was willing to waive his rights.

Detective Lane Smith had actually spoken to Cope before he was taken to the station and had assigned Officer Hodges and Minor to protect Cope from any hostility of other officers. He confirmed Jones’s testimony concerning Cope’s condition during his statement.

Officer Chris Hodges, who testified at trial, was also present as Cope exited his car and was arrested. He issued commands to Cope to get out of the car. Cope complied. Hodges proceeded to Cope and attempted to handcuff him. He described Cope as “tense.” It was Hodges who “delivered a couple of strikes to his back to gain compliance” and was then able to get him handcuffed. Hodges recalled that it was Cope’s right arm that was not yielding, “up towards the front of his chest area.” He was concerned that Cope had a weapon. When questioned about the video of Cope’s arrest, Hodges admitted that other officers delivered strikes to get Cope into handcuffs.

Hodges explained that a distraction blow is a closed fist strike used to gain compliance, which can be done to the back or ribs in an effort to pull the arm out. Hodges did use his fists and inflicted the blows “in the | i2shoulder area of [Cope’s] back.” After Cope was handcuffed, Hodges rolled him over to his back and conducted a pat-down search for weapons. Hodges did not recall that Cope said anything.

Hodges also testified that at the station he never questioned Cope during the time that he guarded him. Cope never asked for food or for a lawyer or to speak to relatives or to friends. Hodges described Cope as being without emotion. He recalled that Cope asked how “he” was, referring to Sergeant Prunty. Hodges told Cope that he did not know, although he knew the officer was deceased.

Officer Jimmie Minor was called at trial by the defense. Minor first became involved "with Cope as he was taken into custody. He stayed with Cope on the scene and then followed Officer Hodges to the Shreveport Police Department. The room where Cope was guarded was fairly deserted and no other officers came into contact with him. Minor was instructed to stay with Cope until detectives arrived to interview him. He recalled that his time with Cope spanned nearly two hours. Minor was instructed to keep Cope comfortable. He testified that he was not abusive toward Cope, who was quiet and stared at the ground most of the time. Minor recalled that Cope asked him “several times” how the Sergeant was doing.

As a DWI enforcement officer, Minor saw nothing in Cope to cause him to request a breath test. Minor stated that Cope was able to walk to the bathroom on his own, did not request to speak to a lawyer or to his father or any family members or friends. He never used physical force against Cope or threaten him in any way. He and Officer Hodges never promised him anything. Minor recalled that Cope’s eyes were red and moist. Minor saw 11sCope cry on one occasion during his custody, but he never said he was sorry for what he did.

The record before us does not demonstrate error in the trial court’s determination that Cope’s statement was free and voluntary. Eight officers testified about the circumstances leading to Cope’s statement. His recorded statement reveals a coherent, cooperative defendant who responded appropriately to the interrogation. He answered all questions appropriately despite his claims of being “particularly vulnerable” as a 24-year-old dropout. His awareness of his situation is shown by his inquiries about the condition of Sergeant Prunty. It is undisputed that Cope was informed of his rights on two occasions, once immediately prior to his statement. His waiver of those rights was likewise clear, calm and logical. Significantly, Cope was afforded physical comfort in the two hours in which he waited to be interviewed. After the initial scuffle with the officers, his contact with police officers was limited to the two who guarded him and the two who interviewed him.

The record does not support Cope’s claim that the “threats” and “abuse” he received at the arrest scene and during transport defeated the state’s burden of proof. Although the video evidence of Cope’s arrest shows that officers struck Cope several times, it also corroborates the officers’ testimony that the strikes were used during their struggle to obtain Cope’s right hand. The distraction strikes, including the inappropriate kick by one officer, occurred for only seconds, were not excessive and accomplished | utheir purpose quickly. The only noticeable physical injuries Cope received as the result of his arrest were minor abrasions to his face, for which he received immediate treatment.

Likewise, Hodges’ actions during arrest were legitimate methods of subduing Cope, and the video evidence of Cope’s transport reveals no evidence of actual or perceived coercion by Hodges. In fact, that evidence shows that neither Cope nor Hodges made any statements during travel. Ultimately, Hodges never interviewed Cope and answered only one question.

The statements made by officers at the arrest scene, while emotionally charged, were not shown to have been intended to obtain a confession. The video shows that Cope had limited close-up exposure to police at the arrest scene and the statements made to him were one-time events of short duration.

From this evidence it was not unreasonable for the trial court to conclude that statements made by the officers reflected their anger at Cope for shooting a fellow officer rather than coercive efforts to obtain a statement of guilt and that the force used by the officers was designed to subdue Cope and not to compel a confession. Ultimately, with Cope’s confession being given some two hours after any of these events, we find no error in the trial court’s determination that statements made to Cope at his arrest did not render his statement involuntary. For these reasons, this assignment of error has no merit.

| mVenue

Cope next argues that the trial court erred in denying his motion for change of venue based upon the nature and extent of pretrial publicity. He asserts that such publicity affected the jury venire to the extent that Cope could not obtain a fair and impartial jury.

In pretrial proceedings, the State stipulated to its release to the media of video from one of the police vehicles documenting Cope’s arrest. Subsequently, Cope filed a Motion for Change of Venue arguing that the nature and extent of pretrial publicity, which was “encouraged by the direct involvement of the District Attorney’s Office,” was so pervasive as to deprive him of a fair and impartial jury. With the agreement of the defense, the Court deferred ruling on the motion until voir dire of potential jurors. After a jury of 12 was selected and during voir dire for alternates, after each had been examined and challenged on publicity, the defense re-urged its venue challenge.

The defense argued that Cope could not have a fair trial due to the percentage of jurors who indicated exposure to the case and the inflammatory publicity, including the details of the arrest and broadcast of Cope’s photograph. The court denied the defense’s motion pointing out that it had “painstakingly, individually questioned each and every prospective juror on this issue.”

La.C.Cr.P. art. 622 states:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. In deciding whether to grant a change |ifiof venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

The right to an impartial jury and a fair trial is guaranteed to every defendant. See La. Const, art. I, § 16; State v. Magee, 11-0574 (La.9/28/12), 103 So.3d 285, cert, denied, — U.S.—, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013); State v. Sparks, 88-0017 (La.5/11/11), 68 So.3d 435, cert. denied, — U.S.—, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). To effect this guarantee, the law provides for a change of venue when a defendant establishes that he or she will be unable to obtain an impartial jury or a fair trial at the place of original venue. Id.

It is only in exceptional circumstances, such as the presence of a trial atmosphere that is utterly corrupted by press coverage or that is entirely lacking in solemnity and sobriety, that prejudice against a defendant may be presumed. Magee, supra. Otherwise, it is the defendant’s burden to demonstrate actual prejudice. Id.

To meet this burden, a defendant must prove more than mere public general knowledge or familiarity with the facts of the case. He must demonstrate the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case. Magee, supra; State v. Clark, 02-1463 (La.6/27/03), 851 So.2d 1055; cert, denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004); State v. Frank, 99-0553 (La.1/17/01), 803 So.2d 1. A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue simply by showing a general level of public awareness about the crime; rather, he must |17show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. Ma-gee, swpra; Clark, swpra. Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the district court’s sound discretion, which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion. Magee, supra; Sparks, supra.

In State v. Bell, 315 So.2d 307 (La.1975), the Louisiana Supreme Court enumerated several factors to be considered in the change of venue determination. These factors include: (1) the nature of pretrial publicity and the degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community, which either affect or reflect the attitude of the community or individual jurors toward the defendant; and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

In determining whether to change venue, the focus must extend beyond the prejudices and attitudes of individual venire persons. The defendant must be allowed to show that, even if it would be possible to select a jury whose members were not subject to a challenge for cause, prejudice or influences exist within the community at large that would affect the jurors’ answers during voir dire or the witnesses’ testimony, or that for any other reason, a fair and impartial trial could not be obtained in that venue. Ma-gee, supra; Clark, supra; Bell, supra. The district court’s |18ultimate determination must rest on the community’s attitude toward the defendant. Magee, supra; Clark, supra.

In reviewing a denial of change in venue, the primary task of the court is to inquire as to the nature and scope of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial in order to ascertain whether prejudice existed in the minds of the public, which prevented the defendant from receiving a fair trial. Magee, supra; Clark, supra.

In performing this review, courts must distinguish largely factual publicity from that which is invidious or inflammatory, as the two present real differences in the potential for prejudice. Id. While ultimately there is no bright line test for ascertaining the degree of prejudice existing in the collective mind of the community, the seven Bell factors help facilitate the inquiry. Magee, supra. In addition, courts have examined the number of jurors excused for cause for having a fixed opinion as another gauge of whether prejudice exists in the public mind. Id.

Before consideration of the responses of potential jurors in the actual voir dire examination in this case, Cope argues that the Caddo Parish jury pool was tainted by news reports showing an MVS video of his arrest and his arrest photograph that were given to a local television station by the District Attorney’s office. He contends that the death of Prunty was “well known” in the community and “left little doubt” in the minds of the public about Cope’s guilt.

| ^Nevertheless, Cope made no showing regarding when or if the MVS video was run on the news by a station. No tapes of local newscasts were placed in evidence. No print or electronic media accounts were offered. In sum, no substantial body of pretrial publicity was shown to the court, particularly, no direct evidence of the prejudicial or inflammatory nature of the media information.

This lack of excessive and inflammatory publicity contrasts to other cases in the jurisprudence examining the issue of venue change. See, for example, Magee, supra, which included extensive evidence of media coverage including 200 pages of newspaper articles, online comments from the public, transcripts of television coverage of the crime and multiple DVDs containing recordings from major local media outlets; State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert, denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008), in which the defense introduced “thousands of print and media stories” about the case; Manning, supra, where 14 newspaper articles were submitted concerning the crime; and Clark, supra, in which numerous newspaper articles relating to the case and a number of transcripts from a local television station were introduced.

Further, we have reviewed the information obtained by the actual examination of prospective jurors. The trial court interviewed 190 potential jurors. Of those 190, 156(82%) indicated that they had some exposure (most with vague factual recollections of the events) to the case; 34(18%) individuals knew nothing about the case. The court individually interviewed the 156 potential jurors.

12()Of the 156 jurors with knowledge of the death of the officer, 36(19%) were removed for preconceived opinions of the defendant’s guilt. The defense challenged two additional jurors for such pretrial opinions of guilt, which were denied by the court. An additional 18 potential jurors were challenged for cause due to impartiality because of relationships to or with law enforcement (8),- Prunty (5) or Cope (5). Ultimately, of the 15 jurors and alternates chosen, 7(47%) had no knowledge of the case. The remaining 8 jurors who served on the case with some knowledge of the murder assured the court that they would be able to decide the case solely on the evidence; one of those was an alternate juror.

Importantly, of the 82% of potential jurors who knew about the case, only a few expressed more than a vague knowledge about the facts, which they had gleaned from the news or from conversations. None mentioned seeing a video on the news. Only two recalled seeing Cope’s photograph. These facts fail to demonstrate any deep-seated pattern of prejudice against the defendant. Rather, all that was shown is a general level of public awareness about the crime. When compared with other cases in which the Supreme Court has found no abuse of discretion in the denial of a venue change, this percentage falls within the range of acceptable general public awareness. See for example, Magee, supra, in which 43% of prospective jurors noted their familiarity with the facts of a case; Lee, supra, in which 98.4% wére vaguely familiar with the . case through media or conversations; Clark, supra, in which 62.9% claimed some exposure to the case; Frank, supra, where 97% of the venire had been exposed to some publicity; State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, cert, denied, 531 U.S |2 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000), in which 80% of the prospective jurors had awareness of the case before trial; State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810, in which 86.33% of potential jurors possessed a vague recollection of the facts.

Likewise, the 19% of jurors with fixed opinions is inadequate to demonstrate reversible prejudice in the public mind. All of the prospective jurors who expressed a pretrial opinion of Cope’s guilt based upon pretrial information of the crime were released for cause. Moreover, such percentage also falls within ranges sanctioned by the courts as acceptable. See, Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), in which 26% with pretrial guilt opinions held not to show prejudice; Sparks, supra, where 12.5% fixed opinion was insufficient to demonstrate prejudice; Lee, supra, in which 32% of potential jurors excused for exposure to case or fixed opinions found insufficient to show public prejudice; Frank, supra, in which 15% of jurors excused due to an inability to put aside preconceived disposition or outside information found insufficient to show prejudice. Compare Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), in which 62% excused for fixed opinion indicated that impartial jurors were hard to find.

After applying the first Bell factor to these facts, we cannot say that the defense has shown that the events in question fostered such emotionally charged media coverage as to prejudice Cope’s right to a fair trial.

Additionally, we do not find persuasive Cope’s arguments regarding the second Bell factor, the connection of government officials with publicity. _j2gA review of the jurisprudence shows that this factor relates to statements made by government officials connected to the case which are harmful or inflammatory and incite prejudice in the minds of the public.

In this case, the District Attorney’s office stipulated that it had released the subject video to a local television station. However, on the hearing for change of venue, the defense presented no evidence that any government official involved in the matter, including any individual from the District Attorney’s office, made any comments or offered any opinion about the case to the media. Thus, Cope’s argument that the actions of the District Attorney’s office created community-wide prejudice against him such that he could not receive a fair trial is not supported by the evidence. Compare Magee, supra, where comments by both the district attorney and sheriff regarding the gruesomeness of the crime were reviewed.

The remaining five Bell factors also afford Cope no relief and are not seriously raised in argument. The trial in this matter occurred about two years after the crime. While the murder of a police officer would necessarily receive media attention, the defense has not shown that the case received more notoriety than any other capital murder case. Cope has also failed to demonstrate that the area from which the jury was drawn showed overriding prejudice in the community that prevented him from receiving a fair trial. According to the 2010 Census, Caddo Parish has a population of 254,969 people. From this large number of individuals, a qualified and fair jury was possible.

Given the broad discretion granted to trial courts in these matters, we cannot say that Cope has established an abuse of discretion in the denial of [ ¾⅜⅛ request for change of venue. Overall, he has failed to demonstrate that prejudice against him existed in the collective mind of the community such that a fair trial was not possible. For these reasons, this assignment of error lacks merit.

Survivability Defense

In his final assignment of error, Cope argues that the trial court violated his constitutional rights to confrontation and cross-examination of witnesses, thereby prohibiting his presentation of a survivability defense. Specifically, Cope complains that the State “at least twice” curtailed his right to confront and cross-examine witnesses, including the coroner and Officer Hodges. He contends that the court limited his cross-examination of the coroner first when he was prevented from questioning the coroner on the issue of survivability, and second when the court denied his request to introduce into evidence the City of Shreveport’s medical training manual, First Responder, Your First Response in Emergency Care (“First Responder Manual”), finding that survivability was not a relevant issue.

Testimony showed that Officer Lacey Durham, the first responder at the shooting, found Sergeant Prunty with fixed, dilated eyes and an agonal respiration, which she recognized as a death breath. She knew from these symptoms that his heart had stopped. She never saw any signs of life from him and believed' that he was dead. Durham testified that she knew that she “needed to control a bleed,” so she began looking for wounds.

She saw what her training showed her to be an entrance wound near the “right upper side” of his thigh near the femoral artery, so she “started there.” She focused on this wound, which she knew to be serious, and she | ¡^believed that it was this wound producing the blood. She explained that the femoral artery is the second largest artery in the body and if punctured can cause a person to “bleed out pretty fast.” Durham knew that she needed to “squeeze” the artery off to hold the bleed. She understood that a tourniquet would not be practical. She exposed the wound and “realized how much blood loss there was,” although she never saw blood actively coming out of the wound. She then checked the rear of Prunty’s thigh, hoping that the back wound would be larger than the front and that she might “find a pulsation there to squeeze off.” She searched for “something that [she] could hold” until the fire department got there to administer fluids.

Paramedics responding to the scene testified that they saw no signs of life in Sergeant Prunty.

The Caddo Parish Coroner, Dr. Todd Thoma, testified at trial and was qualified as an expert in medicine, emergency room medicine, and cause of death determinations. He testified that he also works as an emergency room physician and was the only attending physician on duty when Sergeant Prunty was brought in. Dr. Thoma testified that when Prunty presented, he was completely unresponsive and had an airway in his trachea. Dr. Thoma stated that it was necessary to open Sergeant Prunty’s chest where it was determined that he had completely exsanguinat-ed; his heart was empty. To no avail, heroic measures were pei'formed on Prunty, and he was pronounced dead by Dr. Thoma.

Dr. Thoma was present for part of Sergeant Prunty’s autopsy performed by Dr. Long Jin later that morning. It was then that the physicians discovered that the wounds to Prunty’s legs were inflicted from Ipjjthe back. Dr. Thoma initially believed that Sergeant Prunty suffered from an injury to the femoral artery that caused massive blood loss.

Ultimately, however, Dr. Thoma concluded that it was the injury to Sergeant Prunty’s lower left leg that caused the bleeding. He testified that the bullet hit the distal femur, shattered his kneecap, and in the process severed the popliteal artery, an extension of the superficial femoral artery. He described the injury as a “significant vascular injury” because the popliteal artery feeds the lower extremity. Dr. Thoma explained that Sergeant Prunty bled to death, ultimately from a combination of all of the wounds, but primarily from the severed popliteal artery.

The state questioned Dr. Thoma on the issue of survivability of the wounds that Sergeant Prunty received. He testified that with these wounds, time is of the essence and that if “he were shot in an emergency department or in an operating room, possibly that could have been survivable.” He further explained that “if it happens outside of a medical facility, chances are it’s lethal.” Dr. Thoma also stated that even if a vascular surgeon had been outside of the' convenience store, “without the proper equipment, he probably wouldn’t have been able to stop the bleeding.”

On cross-examination by the defense, Dr. Thoma could not say how long it takes for an individual to bleed out from the severed artery. He agreed that the paramedics indicated that Sergeant Prunty was near death when they arrived at the scene some five minutes after the shooting. Dr. Thoma explained that compression (squeezing the artery in an attempt to stop bleeding) is used to stop an injury like this one. He explained that tourniquets are not used much. He testified that had compression been | ^applied to Sergeant Prunty’s popliteal artery, “when it first starting happening,” compression “would have helped at that point in time.” Dr. Thoma reiterated that if compressioi) had been applied before extremis, “it might have helped.”

It was at this point in Dr. Thoma’s testimony that the State lodged an objection to the relevancy of this line of questioning because the defense had conceded the cause of death in opening statements. Further, the state argued that the issue of whether the victim could have been saved was irrelevant to the defendant’s culpability for murder.

Defense counsel argued that the evidence was relevant to the jury’s determination of specific intent to kill or inflict great bodily harm. The trial court sustained the state’s objection.

Dr. Long Jin also testified as an expert in forensic pathology. On cross-examination by the defense, Dr. Jin agreed that compression on the popliteal artery would have been a recommended-course of treatment to stop bleeding.

Officer Hodges later testified. On cross-examination, he was asked whether he had received first responder training at the police academy. He indicated that he had indeed received training in CPR. The witness was then shown a copy of the First Responder Manual. After reviewing the book, Hodges testified that it appeared to be a copy of the materials used by the Shreveport Police Academy that he attended. Hodges was asked no questions about the manual’s content.

Upon completion of the witness’s testimony, the defense attempted to introduce the manual into evidence upon objection to its relevancy. The [^defense argued that the book contained information indicating techniques that could have been used to save Sergeant Prunty’s life and that it was therefore relevant to the issue of survivability. Defense counsel pointed to specific areas of the book dealing with examining the patient from head to toe, blood loss and control of external bleeding. The trial court sustained the state’s objection on the grounds that the prejudicial nature of the manual outweighed its probative value, considering that evidence had been elicited from witnesses regarding the measures actually taken by first responders. The defense proffered the First Responder Manual for purposes of appeal.

On October 27, 2012, during trial, the state filed an oral motion in limine, seeking to exclude the expert testimony of Dr. James Lauridson, expert in internal medicine and anatomic and forensic pathology, on the grounds that his expert testimony would relate to the issue of survivability. Again the defense argued that the issue of survivability was relevant to proof of specific intent to kill or inflict great bodily harm. The defense argued that Dr. Lau-ridson’s testimony would be that if a first responder would have administered compression behind the knee to Sergeant Prunty’s popliteal artery, within the first five minutes after the shooting, then the outcome of the case may have changed. The court deferred ruling on the motion pending defense counsel’s research of the issue but sustained the state’s objection two days later.

The defense sought writs on the issue from this court, which reversed the ruling, specifically finding that while the expert may not testify directly as to specific intent, “he may testify as to the survivability of the victim’s wounds.” (Writ No. 47,985-KW, October 29, 2012).

1 ^Thereafter, Dr. Lauridson was allowed to testify. Dr. Lauridson stated that Sergeant Prunty’s popliteal injury would have caused the most blood loss. He explained that the simplest and most effective treatment for this condition is pressure or compression applied to the would to close the vessel. In this case, compression would be applied to the back surface of the left knee. Dr. Lauridson believed that if pressure had been applied between five and eight minutes after the injury, Sergeant Prunty would not have developed severe hemorrhagic shock that led to his death. He stated that compression applied within this time frame “would have greatly increased” the officer’s survivability. No special tools were necessary to apply the pressure.

Dr. Lauridson admitted that pooling of blood in the groin area might have led medical personnel to think that the upper thigh wound, rather than the wound to the knee, was the wound that had lacerated an artery and caused the blood loss.

The defense’s final witness was Officer Jimmie Minor. During his testimony, the defense questioned the officer about his training with the Shreveport Police Academy. He did not recall that he was supplied with a textbook on first responder practices. The state objected to the attempt to introduce the First Responder Manual into evidence again. However, in light of this court’s ruling, the trial court allowed the officer to be questioned about his training. When shown the First Responder Manual, Minor generally recognized the name and contents of the book. He agreed that a copy of the book would have been provided to him for study while at the Shreveport Police Academy. Without any further questioning of the |2awitness about the book, the First Responder Manual was introduced into evidence. Ultimately, however, upon objection, the court did not allow the 449-page book to be published to the jury after concluding that no witness had been questioned with reference to any specific provision. Because the manual was admitted into evidence, however, the court allowed the defense to refer to four paragraphs during closing arguments.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings. State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131. The confrontation clause of our state constitution specifically and expressly guarantees each accused this right as well. See La. Const, art. 1, § 16; Robinson, supra.

Confrontation means more than being allowed to confront the witnesses physically. The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Cross-examination is the principal means by which believability and truthfulness of testimony are tested. Robinson, supra.

Confrontation errors are subject to a harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673,106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Robinson, supra; State v. Wille, 559 So.2d 1321 (La.1990). The | sncorrect inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Likewise, a criminal defendant has the constitutional right to present a defense. U.S. Const, amend. VI; La. Const, art. I, § 16; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920,18 L.Ed.2d 1019 (1967); State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198. This right is also subject to a harmless error analysis. Van Winkle, supra.

We find no merit to Cope’s arguments. After this court’s ruling, Cope was allowed to present unlimited evidence relating to the issue of survivability. He chose to present his defense through the testimony of Dr. Lauridson, who stated that the use of compression at the appropriate time may have changed Sergeant Prunty’s outcome. Even so, the record shows that both Drs. Thoma and Jin offered the same testimony during the state’s case. In fact the defense elicited some of the testimony from both witnesses during cross-examination. Thus, Dr. Lau-ridson’s opinion merely cumulated testimony already received by the jury. Moreover, the defense was free to recall Dr. Thoma for further questioning on the issue of survivability but |S1 chose not to do so. Considering these circumstances, we find that Cope was not denied a defense and has demonstrated no prejudice in the court’s earlier limitation of Dr. Thoma’s questioning.

Likewise, the defense was ultimately allowed to introduce the First Responder Manual into evidence. It was incumbent upon the defense to question witnesses about the book’s contents or show why specific portions of the document were relevant to the case. During Hodges’ cross-examination, he was only asked about his knowledge of the publication. When he stated only a general familiarity with the contents of the book, he was asked no further questions by the defense. Upon the defense’s introduction of the manual into evidence, Hodges was not recalled for cross-examination.

Extensive evidence relating to the actions of the first responders, appropriate treatment and patient assessment was presented to the jury through medical testimony. The relevant portions of the manual alluded to by defense counsel in argument would have been nothing more than cumulative evidence. Thus, Cope has suffered no prejudice in the events relating to the First Responder Manual.

Conclusion

For the foregoing reasons, Cope’s assignments of error are without merit. His conviction and sentence are affirmed.

AFFIRMED.

      . Notably the car matched the description of a vehicle from which a shot had been fired at a subdivision security guard about an hour earlier in another part of town.

      . Cope was also charged with the attempted first degree murder of Sonnier and the attempted first degree murder of the security guard at the second crime location. The state severed these counts from the Sergeant Prunty first degree murder proceedings.

      . The rights are set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Because the officers testified regarding the Shreveport police department use of distraction strikes during arrest, Cope has shown no prejudice in the denial of his request to review Shreveport Police Department regulations and guidelines relating to their use.

      . The court noted that although no witness had been questioned about specific provisions, defense counsel had placed four note markers in the manual. One referred to documentation, one referred to a first responder's initial reaction to and assessment of the scene and patient, and the third addressed three causes of shock including bleeding and the use of compression. The final note referenced entry and exit wounds.


author: DREW, J.

text:
    Donyell BLACK, et al., Plaintiff-Appellee v. Darrick JOHNSON, et al., Defendant-Appellee Errol Page, Plaintiff-Appellant v. Darrick Johnson and Systems Contracting Corp., Defendant-Appellee.
    Nos. 48,779-CA, 48,780-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      The Singleton Law Firm, By: W. James Singleton, Shreveport, Christopher L. Sices, for Plaintiffs-Appellants, Errol Page and Sheila Page.
    Steven Dennis Carby, Shreveport, for Plaintiffs-Appellees, Donyell Black and Lakecia Black.

      Kirby D. Kelly, APLC, By Sean Landry, Shreveport, Harold Dean Lucius, Jr., for Plaintiffs-Appellees, Ledonis Black and Unopened, Succession of Sharon Black.
    Tracy L. Oakley, Ruston, Counsel for Defendant-Appellee Darrick Johnson.
    James Everet Brouillette, Zelda Wynee Tucker, Counsel for Defendant-Appellee State Farm Mutual Automobile Ins. Co.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., Shreveport, By: Donald Armand, Jr., Counsel for Defendant-Appellee Systems Contracting Corporation.
    Before DREW, MOORE and PITMAN, JJ.
   DREW, J.

| ] Errol Page appeals a summary judgment that dismissed his personal injury claim against Systems Contracting Corporation on a finding that Systems’ employee, Darrick Johnson, was not in the course and scope of his employment at the time of the accident that injured Page.

We affirm.

FACTS

Systems Contracting Corporation (“Systems”) specializes in the installation of mechanical and process piping at steel mills, paper plants, petrochemical plants, and other facilities. Systems has about 400 permanent employees. It also hires temporary construction employees to work on a project-specific basis. Systems’ projects are generally located in the southeastern United States. Darrick Johnson, Errol Page, and Kenneth Everfield were temporary employees of Systems.

Johnson knew he worked for Systems on a project-by-project basis and for only as long as they needed him on a particular project. He would have to reapply for each future Systems job.

Johnson, ’ a Tallulah resident, first worked for Systems on a construction project in Tallulah. That was also the first time that Everfield and Page worked for Systems. Page is Johnson’s brother-in-law, and Everfield is their cousin. The men were later hired to work on a Systems project in Harrisville, Mississippi. After the project in Harrisville ended, the men were eventually hired to work for Systems on a pipeline project in Mira, Louisiana.

12Everfield, Johnson, and Page received hourly wages as well as a per diem while working for Systems. The amount of per diem varied depending on the project.

Systems’ temporary employees signed a “Per Diem Tax Exemption Form” to receive the per diem. The form required the employee to check one of two boxes. The boxes on the form for the Mira project read:

I moved a distance greater than 50 miles from my permanent residence on a temporary basis in order to work on the project to which I am currently assigned. Therefore, the per diem payment made to me by Systems Contracting is an expense reimbursement not subject to payroll taxes. I am temporarily living in the city or town of Mira, Louisiana. I am working at or near this location beginning today. My lodging expenses are at least $50 per day. If these circumstances change I will immediately notify Systems Contracting.
I did not make a temporary move of greater than 50 miles from my permanent residence. With regard to housing expenses, to the extent such expenses are paid from my per diem, I am accepting the “per diem” payment as taxable compensation and authorize Systems Consulting to withhold all applicable payroll taxes.

At the bottom of the form was a section titled, “Per Diem Terms.” It read:

My agreed per diem is $75 per day. I understand that it will be necessary to furnish information regarding the time and place of expenditures in order to keep the full per diem. If I am reimbursed or advanced amounts for expenses related to days of travel for which I do not actually travel and substantiate, I agree to return such portion of the per diem within a reasonable period. I agree to be held responsible for my portion of withholding- taxes, penalties, and interest, if any, resulting from unsubstantiated per diem allowances.

While working in Mira, Johnson and Page shared a room at The Royal Inn motel (“motel”) in Shreveport. Everfield had a separate room at the motel. Johnson learned about the motel from Scott Hayes, a Systems foreman, who had asked Johnson where he was staying while working in RMira. Hayes had stayed at the motel previously. The motel happened to be the closest one to the Mira job site.

While working on the Mira project, Johnson drove Page around in his truck. Everfield also rode in Johnson’s truck to and from the job site. In return, Ever-field and Page shared in the cost of gas. The men worked a 12-hour shift seven days a week. Their shift was to begin at 7:00 a.m. on the morning of the accident.

Johnson drove to Tallulah after his shift was completed on at least two occasions. That was exactly what Johnson and Page did on January 21, 2010. After their shift ended, they drove to the motel, and then proceeded to Tallulah. They spent the night in Tallulah, and then early the next morning, the men, along with Johnson’s wife, drove from Tallulah to the motel. Johnson estimated that it took about two hours to drive from Tallulah to the motel. They dropped off Mrs. Johnson at the motel, picked up Everfield, and headed on Highway 71 to work. As they did every morning on the way to Mira from the motel, they stopped at a nearby convenience store to purchase snacks and coffee.

As the men drove to work on the morning of January 22, 2010, Johnson’s truck collided with a vehicle driven by Sharon Black. Black and her daughter Lakecia Black died from the injuries they sustained in the accident. Page suffered severe injuries in the accident.

Procedural History

Donyell Black filed suit on behalf of Lakecia Black against Darrick Johnson and Safeway Insurance, the liability insurer of Johnson’s vehicle. The petition was amended to add the Succession of Sharon Black and State pFarm as defendants. State Farm was later dismissed on summary judgment. Safeway was dismissed on summary judgment after it tendered its policy limits into the registry of the clerk of court in a concursus proceeding.

The Pages filed suit against Johnson and Systems. Ledonis Black filed suit on behalf of Sharon Black against Johnson and Systems. The three lawsuits were consolidated.

Systems filed a motion for summary judgment against the claims of the Pages and Ledonis Black on the grounds that Johnson, Page, and Everfield were not in the course and scope of their employment at the time of the accident. Systems answered in the alternative that the Pages’ claim should be dismissed because if Johnson, Page, and Everfield were in the course and scope of their employment at the time of the accident, then their sole remedy against Systems is in workers’ compensation. Submitted in support of the motion were the depositions of Johnson, Everfield, Page, and Melinda Gathe-right, the vice-president of administration for Systems.

The Pages filed an opposition to Systems’ motion for summary judgment, contending that there were genuine issues of material fact concerning whether Johnson and Page were in the course and scope of their employment at the time of the accident. Submitted in support of their opposition were the depositions of Everfield, Gatheright, Johnson, and Page, and several per diem tax exemption forms.

The trial court granted Systems’ motion for summary judgment and dismissed the Pages’ and Ledonis Black’s claims against Systems. The Pages appealed.

DISCUSSION

IfiThe Pages argue on appeal that a genuine issue of material fact exists as to whether Johnson was within the course and scope of his employment when the accident occurred. They contend that Systems interested itself in Johnson’s transportation to and from work by providing a per diem that eased his burden of travel expenses, that Systems benefited from having its temporary employees lodge near the work site, and that Johnson was on a mission for Systems when he used his personal vehicle to ensure that Everfield, Johnson, and he arrived for work on time.

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. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. 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 mov-ant is entitled to judgment as a matter of law. Id.

The basis for an employer’s liability for its employee’s tort is found in La. C.C. art. 2320. An employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994. The course of employment refers to time and place; scope refers to the employment-related risk of injury. Benoit v. Capitol Mfg. Co., 617 So.2d 477 (La.4/12/93).

An employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the | f,employment duties of the employee that it constitutes a risk of harm fairly attributable to the employer’s business. Orgeron on Behalf of Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224; Woolard v. Atkinson, 43,322 (La.App.2d Cir.7/16/08), 988 So.2d 836. Factors useful in determining whether the employee’s act was employment-related include the payment of wages by the employer; the employer’s power of control; the employee’s duty to perform the act in question; the time, place and purpose of the act in relation to the employment; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employee’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act. Orgeron, supra; Davis v. Green, 44,033 (La.App.2d Cir.2/25/09), 5 So.3d 291, writ denied, 2009-0984 (La.6/19/09), 10 So.3d 742.

An employee going to or coming from work is generally not considered as acting in the course and scope of his employment so as to make the employer liable to third persons for the employee’s negligence. Orgeron, supra; Woolard, supra. An exception to this general rule may apply when an employer provides the transportation used by the employee to go to and from work, the employer provides expenses or wages for the time spent traveling in the vehicle, or the operation of the vehicle is incidental to the performance of some employment responsibility. Woo-lard, supra; Davis, supra.

Transportation can be furnished as an incident of employment through a vehicle, a conveyance and driver, or payment of expenses. Michaleski v. Western Preferred Cas. Co., 472 So.2d 18 (La.1985). |7When an employer pays expenses and the trip in question is employment connected, an employee is in the course and scope of employment while away from his work place. Id.

Systems’ vice-president of administration Melinda Gatheright explained that the two components of Systems’ wages are the hourly wage and the per diem. Systems does not pay per diem on every construction project. Systems first examines how competitive a particular labor market is to determine whether it needs to pay a per diem in order to attract workers to the job site or to keep them from working elsewhere. Sometimes Systems will increase hourly wages as an incentive. Systems has had projects where they did not pay a per diem at first, but then had to start paying one to retain temporary employees. Gatheright also recalled one project where the per diem was offered only to a particular level of employees because there was a demand for those employees. In most instances like the Mira project, the per diem is paid to all temporary employees.

Gatheright defined Systems’ per diem payments as an inducement to retain employees. She explained that per diem is just the terminology recognized in their industry for that type of payment. A temporary employee does not have to meet any criteria to receive per diem if it is offered. The per diem was combined with the hourly wages in each paycheck.

Gatheright testified that Systems does not make any arrangements for employees who have to travel a long distance to a work site. Systems does not stipulate what the per diem can be used for since it is provided as a wage, not for travel expenses. It is not specifically meant to be used for gas or lodging expenses.

IsGatheright explained that the purpose of the per diem form is to give the employee the choice of tax treatment of his per diem. It also makes the employee aware that he may have to provide receipts to the IRS. Gatheright has never collected a receipt from an employee to justify the per diem.

Johnson thought Systems paid the per diem only if an employee worked a certain distance from home. Nevertheless, Johnson acknowledged that ■ he lived in his house in Tallulah during the Tallulah job and still received a per diem of $50. Also, despite the language in the per diem form, Systems never required Johnson to prove he lived more than 50 miles away from the job in order to receive the per diem.

Everfield was from Tallulah and had moved back to work there. Everfield had finished working on a facility in Tallulah when Systems hired him to work on their construction project at that same facility. Thus, Everfield received per diem for the Tallulah job while residing there.

Page testified that his residence was in Oak Grove, so he stayed with his parents in Tallulah during the Tallulah job. Page claimed that he did not receive the per diem at first on the Tallulah job because he listed his mother’s Tallulah address on his job application, but he received it once he showed he was. from Oak Grove. Page did not believe that Systems paid per diem on the Tallulah project if an employee was from that local area; however, he also testified that he thought everyone on the Tallulah project received per diem.

Johnson thought the per diem was a reimbursement for living expenses, but not for mileage-to and from work. He believed that he received the per diem so he could stay at a hotel while working in Mira. He 19testified that he was told by a Systems employee that the per diem was provided so workers could find accommodations in Shreveport and not have to return to Tallulah each day. However, Johnson also stated that nobody discussed with him what the per.diem was to be used for.

Page testified that his understanding was the per diem was to be used for transportation and living expenses. He used it for lodging, food, and gas, and would not have been able to afford to stay at the motel without the per diem. Page also testified that nobody with Systems told him why they received the per diem.

Everfield thought it was more convenient to stay at the motel instead of commuting to and from Tallulah. Everfield admitted that nobody from Systems ever told him the company preferred for him to stay close to the job site in Mira.

In Michaleski, supra, the supreme court reversed a summary judgment that had been rendered on the ground that the motorman for an oil well workover was not in the course and scope of his employment when involved in an auto accident while returning to the rig site from a restaurant with a coworker. The motorman received a per diem of $12 for food and gas. Concluding that it could not say as a matter of law that the motorman was not in the course and scope of his employment at the time of the accident, the supreme court stated:

An oil company employee, working “seven days on” with living quarters and a food and gas allowance furnished by the employer, who is returning to the work place from a necessary trip for himself and a co-worker to eat is in the course of his employment. Such a journey is necessitated by the employment, since all the men had to leave the rig site to purchase groceries or a meal. Compare Sellers v. Dixilyn |10 Corporation, 433 F.2d 446 (5th Cir.1970) where plaintiff had completed his seven days on the rig and was not answerable to the call of duty as he drove home to commence his seven days on shore. Amoco’s rig site here was not offshore. However, the very denomination of this employment indicates that Leger was at work during the “seven days on” at the rig site. Returning from a trip to buy food was an activity arising out of the nature of the employment. The employer anticipated the necessity of these temporary absences, because it compensated the employees with a per diem for their food and gasoline expenses. All of these employees were required to obtain meals or groceries away from the rig site and were furnished an allowance for that purpose.

Id., 472 So.2d at 21.

Michaleski is easily distinguished. The motorman and the rest of the crew lived in a trailer at the rig site during their “seven days on.” In contrast, although Johnson worked a 12-hour shift, he never had “seven days on” like the motorman, and did not stay on the job site. The motorman could use his per diem for food or gas, and he had to leave the well site in order to eat or buy food because no food was available at the site. In contrast, Johnson was off work when he finished his shift and was free to do as he pleased until his next shift began. The motorman may have been done with his shift that day, but as the supreme court noted, the denomination of his employment indicated that while at work he was “seven days on.”

It was recognized in Orgeron, supra, that the going and coming rule applies easily when the employee has a fixed place of work, so that travel back and forth between the home and fixed place of work is almost never in the course of employment. The employee in Orgeron worked as a cook for a catering service which assigned him to work for its customers on offshore facilities. After returning to port following a 14-day shift, the employee | nwent to his employer’s office in Houma to get his paycheck. The employee intended then to drive to his home in Alabama. However, his employer had other plans, and told him he was to report early the next morning at a dock in Fourchon, from where he would be taken offshore by a customer for a seven-day shift. The employee spent the night at a motel in Houma, which he paid for himself. The next morning he was involved in an accident while driving to Fourchon in his own vehicle. He did not receive a travel allowance or travel expenses.

The supreme court concluded in Orger-on that the employee’s travel from his home to a particular port, and vice-versa, would arguably fall under the going and coming rule. However, the employee was not traveling from home to work at the time of the accident, as he had gotten only as far as his employer’s office in Houma when he received special orders to go to Fourchon for another assignment early the next morning. The supreme court noted that the assignment was not only principally for the employer’s benefit, but its emergency nature greatly heightened the element of the employer’s control over the employee’s trip to Fourchon. Under the circumstances, the employee was in the course and scope of his employment at the time of the accident.

Systems! only expectation was that Johnson arrive for work on time. It did not require that he live in a certain place or follow a particular routine on the way to work. It did not control his activities when his shift ended. Once Johnson’s shift ended, he was free to return to the motel, drive to Tallulah, or do whatever else he pleased.

| iaIn Keith v. Gelco Corp., 30,022 (La.App.2d Cir.12/10/97), 705 So.2d 244, employees sued their employer after they were injured in an auto accident while being driven to their homes from work at the end of the workday in a vehicle owned by their employer and driven by their supervisor. This court affirmed a dismissal on summary judgment of the employees’ personal injury claims on the premise that their exclusive remedy was in workers’ compensation because the accident occurred in the course and scope of their employment.

Keith is also distinguishable. Although there was a factual dispute over whether the employees were paid for travel time on the date of the accident, it was undisputed that the plaintiffs were being driven in a company-owned vehicle by their supervisor, this was the customary means of transportation to and from the work sites, and the employer paid for the gas and maintenance of the vehicle. The method of transportation was an incident to the plaintiffs’ employment agreement. Johnson was not driving a company vehicle at the time of the accident.

In LeCroy v. Brand Scaffold Bldg., Inc., 95-1522 (La.App. 1st Cir.2/23/96), 672 So.2d 181, writ denied, 96-1442 (La.9/27/96), 679 So.2d 1352, the First Circuit affirmed the finding of a WCJ that an auto accident occurred in the course and scope of employment when the employees received a per diem of $25 if they lived 100 miles or more from the job site. The court rejected the employer’s argument that the per diem was not a travel allowance but was a salary supplement to attract employees. The WCJ li-jhad noted that the per diem was classified as a nontaxable item, not as taxable compensation, by the employer, and that it was listed as a travel expense on the paycheck stubs.

LeCroy is contrasted by the mere fact that in the instant case, the per diem was provided to all temporary employees on the Mira project, and not just to those who lived a certain distance away.

The significance of a per diem was at issue in the context of a workers’ comp proceeding in Tarver v. Energy Drilling Co., 26,233 (La.App.2d Cir.10/26/94), 645 So.2d 796. This court stated that it was well settled that mere payment of these expenses without an express or implied agreement to furnish transportation did not place the employee within the course of his employment while going to and from work when such payments bore no relation to actual travel expenses and were intended only as an inducement to persuade persons to work at a particular job site.

The oil rig worker in Tarver was injured while being driven from the job site to company-provided housing facilities in a vehicle owned by a co-employee. The employee lived 210 miles from the job site and received a $15 per diem. The per diem did not include mileage and was not specified as travel expenses. This court noted that the employee was not required to stay in the company-owned housing. It was further noted that the employee had left the job site and was off duty because of a hand injury suffered at work earlier that day. This court affirmed the finding that the employee was not entitled to benefits for the injuries sustained in the auto accident because the accident occurred outside the course of employment.

114The employment status of an oilfield worker was the primary issue in White v. Frederick, 44,563 (La.App.2d Cir.8/19/09), 17 So.3d 1016, writ denied, 2009-2059 (La.11/25/09), 22 So.3d 168. The worker was involved in an auto accident in DeSoto Parish while driving to a restaurant in his personal vehicle after finishing his shift. This court found that summary judgment was appropriate because the worker was an independent' contractor. This court added that even assuming the worker was an employee, he was not in the course and scope of employment when the accident occurred. The worker was paid a day rate, rate for cell phone use, and mileage while “on the clock.” He was not reimbursed for food expenses. After his shift ended on the date of the accident, the worker had 12 hours until his next shift began. He then slept for a few hours in a trailer on the job site that he was allowed, but not required, to use. He was “off the clock” on his personal time between shifts and away from the work site when the accident occurred.

In Woolard v. Atkinson, supra, this court affirmed a summary judgment in favor of the employer because the employee was not acting in the course and scope of his employment when he was involved in an auto accident while commuting to his office from his home in his personal vehicle. As part of his duties, the employee traveled to meetings in cities around Louisiana. He received a salary plus $200 a month for work-related expenses. He received the $200 per month without submitting any documentation of his travel expenses, and he was not specifically reimbursed for his mileage. This court recognized that the payment of a monthly travel allowance did not create a genuine issue of material fact as to whether the |15employee was in the course and scope of his employment since it was not established that he was on a mission ben-efitting his employer or performing a job duty at the time of the accident. The employee’s primary purpose in driving at the time of the accident was to transport himself from home to work, and his employer did not control his movements in that regard.

Johnson selected the motel because it was the cheapest place to stay that was nearby. Although Hayes told him about the motel, he did not suggest to Johnson that he stay there. Everfield testified that he chose the motel because Page and Johnson were already there and they said it was cheap.

Johnson agreed that someone from Systems told him that Systems would like for him to stay as close as he could to Mira. However, where he actually stayed was up to him. Not everyone working for Systems in Mira stayed at the motel. As noted by Everfield and Page, some Systems employees even lived in campers while working in Mira.

Johnson thought that it would have been okay with Systems if he had commuted from Mira to Tallulah. Page stated that Systems knew they sometimes drove to Tallulah. In fact, their supervisor allowed them to take off work so Johnson could drive Page to see his parole officer in Tallulah.

No Systems employee ever told Johnson that he could not share expenses with Ev-erfield and Page or placed restrictions on how they got to work. Their morning routine was up to them. The men checked in when they arrived at the job site and checked out when they left. They were not paid for travel time. They were not on call when their shift ended, and could 11fido as they pleased in their free time. Systems scheduled them to work at the same time since Johnson drove them to work.

Johnson was not on a work mission, but was merely commuting to work and not in the course and scope of his employment at the time of the accident. The payment of the per diem and the fact that Johnson used it for lodging and other expenses does not change the result. The payment of the per diem in this instance did not interest Systems in Johnson’s transportation to and from work. The per diem was offered by Systems as an inducement to recruit and retain temporary employees, and it was available to all temporary employees on the Mira project regardless of where they lived. Johnson made the economic decision to save on expenses and perhaps pocket some of the per diem by sharing lodging in Shreveport and not commuting to and from Tallulah on a regular basis. Johnson was not obligated to stay near Mira, even if he believed that Systems liked its temporary employees to lodge as close as possible to a job site.

For the foregoing reasons, we conclude that there is no genuine issue of material fact regarding whether Johnson was in the course and scope of his employment at the time of the accident. Systems was entitled to summary judgment as a matter of law. Because we reach this conclusion, it is unnecessary for this court to consider Systems’ alternative argument that Page’s exclusive remedy is in workers’ compensation if the accident arose out of and in the course of Johnson’s employment.

DECREE

At the cost of the Pages, the judgment is AFFIRMED.

      . The court recognized the dual requirements of workers' compensation that the accident occur in the course of employment and arise out of the employment.


author: STEWART, J.

text:
    Christiner Y. JACKSON, Plaintiff-Appellant v. OFFICE OF EMPLOYMENT SECURITY and Service Master Action Cleaning, Defendants-Appellees.
    No. 48,869-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.
    Christiner Y. Jackson, In Proper Person.

      J. Jerome Burden, Baton Rouge, for Appellee, Louisiana Workforce Commission.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

hln this unemployment benefits dispute, Claimant Christiner Yolanda Jackson appealed the decision of the Louisiana Workforce Commission’s (“the Commission”) 111 days after it was mailed to her last known address. After the Commission determined that the appeal was untimely, Ms. Jackson appealed its decision to the Louisiana Workforce Commission Appeals Tribunal (“the Appeals Tribunal”), 21 days later. Ms Jackson then appealed to the Louisiana Board of Review (“the Board”), which determined that she filed an untimely appeal, and dismissed her claim. Ms. Jackson appealed the Board’s judgment at the district court. It found that Ms. Jackson’s appeal was untimely, and affirmed the Board’s decision. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Jackson was employed as an optometry assistant at Wal-mart from April 10, 2010, to April 4, 2012, at which time she was discharged for misconduct related to her performance. On April 4, 2012, Ms. Jackson filed an Internet application for unemployment compensation (“UI”) benefits.

From April 12 to April 24, 2012, she worked at Servicemaster Action Cleaning (“Servicemaster”). Ms. Jackson was assigned to clean a building for four hours a week. She quit her job at Servicemaster, and the separation notice submitted to the Commission indicated that she was dissatisfied with the number of hours she was working. Servicemaster submitted a letter to the Commission, stating that Ms. Jackson was informed of her hours at the time she was hired, and that no changes were made while she was employed there.

| gAfter determining that Ms Jackson was not entitled to unemployment benefits, it mailed its notice of claim determination on June 7, 2012, to the address that Ms. Jackson provided in her application for UI benefits. Ms. Jackson denied ever receiving this notice, stating that she did not learn of the disqualification until she called the Commission on September 26, 2012.

On September 26, 2012, Ms. Jackson appealed the denial to the Appeals Tribunal. After a October 25, 2012, telephone hearing, the Appeals Tribunal affirmed the Commission’s decision to deny Ms. Jackson’s unemployment benefits. It found that she delayed filing her appeal until after the 15-day appeal period pursuant to La. R.S. 23:1629.

On November 16, 2012, Ms. Jackson appealed to the Board pursuant to La. R.S. 23:1680 of the Louisiana Employment Security Law. After determining that she filed an untimely appeal, the Board did not rule on the merits of the case and dismissed her claim. This decision was mailed on October 26, 2012.

Ms. Jackson then filed a petition for judicial review at the district court, appealing the Board’s decision. The district court found that Ms. Jackson’s appeal to the Board was untimely and affirmed the Board’s decision.

Ms. Jackson has filed the instant pro se appeal.

LAW AND ARGUMENT

The brief of the appellant shall set forth, inter alia, a specification or assignment of alleged errors. URCA Rule 2-12.4. We note that Ms. Jackson’s “brief’ simply sets forth her recollection of facts surrounding the denial of her unemployment benefits. It fails to specify or assign any errors, |shas no briefing of arguments, no jurisdictional statement, and is technically out of compliance with Rule 2-12.4. Cheatham v. Luberski, Inc., 43,603 (La.App.2d Cir.9/17/08), 996 So.2d 373; Washington v. First Choice Trucking, 06-1479 (La.App.3d Cir.3/7/07), 953 So.2d 107, 953 So.2d 107; Costales v. Turner Indus., 05-36 (La.App. 5th Cir.5/31/05), 905 So.2d 410, writ denied, 2005-1707 (La.1/9/06), 918 So.2d 1056. In light of her pro se status, however, this court will attempt to discern the substance of arguments and treat them as though properly raised.

We believe that the basis of Ms. Jackson’s argument is that the Appeals Tribunal and the Board erroneously determined that her claim was untimely. Further, she is asserting that the district court erred in affirming the Board’s decision. Therefore, we must determine whether the Appeals Tribunal and the Board’s decision to dismiss Ms. Jackson’s appeal due to untimeliness was supported by sufficient competent evidence pursuant to the relevant law.

With respect to the right to appeal a determination of eligibility to an appeal tribunal, La. R.S. 23:1629(A)(1) provides in pertinent part:

Within fifteen days after notification was given or was mailed to his last known address, the claimant or any other party entitled to notice of a determination may file an appeal from such determination with an appeal referee either by mailing such appeal, as evidenced by the postmarked date, or by delivering such appeal. (Emphasis added.)

Further, La. R.S. 23:1630(A) and (B) states in part:

A. The board of review may on its own motion, within fifteen days after the date of notification or of mailing of a decision of an appeal tribunal, initiate a review of such decision. The board of review may otherwise allow an appeal from such decision to be filed, within fifteen days after the date of notification or of mailing of a decision of an appeal referee, by |4any party entitled to notice of such decision, if such appeal is either mailed, as evidenced by the postmarked date, or is delivered by any such party. (Emphasis added.)
B. The board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date an appeal is received or initiated, direct that additional evidence be taken, the board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date it receives additional evidence. Such decision shall be final unless, within fifteen days after the mailing of notice thereof to the last knoum address, or, in the absence such mailing, within fifteen days after the delivery of such notice, a proceeding for judicial review is initiated pursuant to R.S. 23:1631. (Emphasis added.)

In a proceeding for judicial review of an agency determination of UI benefits, “the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” La. R.S. 23:1634(B); Menyweather v. Office of Employment Sec., 43,170 (La.App.2d Cir.4/30/08), 981 So.2d 814; Banks v. Administrator, 393 So.2d 696 (La.1981). Judicial review does not permit the weighing of evidence, drawing of inferences, re-evaluation of the evidence, or substituting the views of this court for those of the board as to the correctness of facts. Menyweather, supra; Lafitte v. Rutherford House, Inc., 40,895 (La.App.2d Cir.12/14/05), 917 So.2d 684.

Appeal from the Commission’s decision is permitted “within fifteen days after the date of notification or of mailing of a decision of an appeal referee, by any party entitled to notice of such decision, if such appeal is either mailed, as evidenced by the postmarked date, or is delivered by any such party.” La. R.S. 23:1630(A). Peremption is a period of time fixed by | slaw for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. Peremption may not be renounced, interrupted or suspended. La. C.C. art. 3461. The courts of this state have recognized that the 15-day period provided by La. R.S. 23:1630 is a per-emptive period. Baughman v. Covenant Transport, 45,122 (La.App.2d Cir.4/14/10), 34 So.3d 1087; Bullock v. Administrator, Dept. Of Employment Sec., 628 So.2d 190 (La.App. 2d Cir.1993). The expiration of the period “destroys the claim so completely that any right of action ceases to exist and is lost.” Bullock, supra.

The Commission mailed its decision on June 7, 2012, but Ms. Jackson denied ever receiving this notice, stating that she did not learn of the disqualification until she called the Commission on September 26, 2012. However, the record indicates that the Commission’s notice of claim determination was mailed on June 7, 2012, to the address she provided in her application for UI benefits. Pursuant to La. R.S. 23:1629, she had 15 days from that date to appeal the determination to the Appeals tribunal. As stated above, the period for appeal under this section, and La. R.S. 23:1630, is one of peremption, not prescription, and its running destroys the claim so completely that any right of action of appeal ceases to exist and is lost. Jefferson v. State, 573 So.2d 639 (La.App. 2nd Cir.1991). Ms. Jackson didn’t file her appeal with the Appeals Tribunal until September 26, 2012, which was 111 days later. Therefore, the Appeals Tribunal did not err in determining that her claim was untimely pursuant to La R.S. 23:1629, dismissing her appeal. Further, the Appeals Tribunal decision was mailed Ron October 26, 2012, but Ms. Jackson did not file her appeal with the Board until November 16, 2012, which was 21 days after the decision was mailed. Again, the Board did not err in determining that her claim was untimely pursuant to La. R.S. 23:1630.

Ms. Jackson’s filed her appeal to the Appeals Tribunal 111 days after the decision was mailed. She then filed her appeal to the Board 21 days after the decision was mailed. She failed to file a timely appeal on both occasions, and the jurisprudence in this area is well established. After reviewing the record in its entirety, we find that the evidence supports the district court’s decision to affirm the Board’s decision that Ms. Jackson’s appeal was untimely. Ms. Jackson no longer had a right of action, and the expiration of the period extinguished her claim in full. Therefore, her argument is without merit.

CONCLUSION

For the reasons set forth herein, the district court’s decision is affirmed. Costs of the appeal are not assessed. La. R.S. 23:1692. Where the employer has prevailed as in this case, costs must be absorbed by the clerk of appropriate court. Baughman, supra; Atlas Processing Co. v. Administrator, Dept. Of Employment Sec., 584 So.2d 1187 (La.App. 2d Cir.1991).

AFFIRMED.