author: CARAWAY, J.

text:
    John Barron SKANNAL, Individually, as Testamentary Executor of the Succession of John C. Skannal and as Trustee of the John C. Skannal Trust, and A.C. Skannal, III, Plaintiffs-Applicants v. JONES ODOM DAVIS & POLITZ, L.L.P., Defendant-Respondent.
    Nos. 48,016-CW, 48,017-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Rehearing Denied Nov. 14, 2013.

      Stone Pigman Walther Wittman L.L.C., New Orleans, By: Barry W. Ashe, C. Lawrence Orlansky, Nicholas J. Wehlen, Ayres, Warren, Shelton and Williams, LLC, Shreveport, By: Lee H. Ayres, for Plaintiffs/Applicants.
    Bradley Murchison Kelly & Shea LLC, By: David R. Taggart, Shreveport, Natalie J. Dekaris, New Orleans, Schiff, Scheck-man & White, LLP, By: Leslie J. Schiff, for Defendant/Respondent, Jones <& Odom, L.L.P.
    William F. Kendig, Jr., Shreveport, Third Party Respondent, In Proper Person.
    Marshall Carl Rice, Shreveport, Third Party Respondent, In Proper Person.
    BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

Lin this dispute over the validity of an attorney-client fee contract, the clients claim that the fee contract obligated them to pay the attorneys hourly fees throughout the course of extensive litigation to recover their family’s property and mineral rights. Despite the clients’ payment of considerable hourly fees over three years during such litigation, the attorneys then elected a one-third contingency fee under the terms of an additional option extended to them in the fee contract. With this suit, the clients assert as a matter of law that the fee arrangement with the attorneys, affording the optional contingency fee, violates the Louisiana Rules of Professional Conduct. They sought a partial summary judgment nullifying the one-third contingency fee provision. After the trial court’s denial of the motion for partial summary judgment, we granted supervisory review. For the following reasons, we reverse the trial court’s ruling and grant partial summary judgment.

Facts

In January of 2005, the late John C. Skannal sought legal advice from attorney John S. Odom, Jr., of the firm Jones & Odom, LLP (hereinafter “J & O”), regarding the validity of nine transactions Skan-nal had entered into with his former business partners, the Bamburgs. In March of 2005, Odom prepared a power of attorney for Skannal’s execution in favor of his son, John Barron Skannal (“Barron”), due to Skannal’s worsening health and mental decline. Thereafter, Barron and his brother, A.C. Skannal, III ^(“A.C.”), visited the office of their long-time attorney, M. Carl Rice, seeking legal assistance for invalidating the same transactions. Recognizing that the potential litigation was out of his area of expertise, Rice conferred with his cousin, J. Marshall Jones, Jr., also of J & O. Upon meeting Barron and A.C., Jones realized that Odom had already been consulted on the same transactions by Mr. Skannal and insisted that Odom be lead counsel. Thereafter, on March 13, 2005, Barron, individually, and as agent for his father, and A.C., individually (hereinafter “the Skannals”), entered into an “Agreement for Legal Services with Additional Contingency Fee” with J & O (hereinafter the “Fee Agreement”).

The Fee Agreement forms the basis of this dispute and appeal. Paragraph II of the agreement reads as follows:

II. Client does hereby employ and retain Attorney, and Attorney does hereby bind and obligate himself to render any and all necessary legal services required hereinbelow, upon the following terms and conditions, to-wit:
A. Attorney takes into account many factors in billing services rendered and Attorney responsible will review all statements before they are issued to insure that the charge is appropriate. A principal factor is Attorney’s scheduled hourly rates, which rates currently are $200.00 per hour for partners and $75.00 per hour for legal assistants. The schedule of hourly rates is reconsidered on an annual basis with changes effective January 1. Most statements for services are simply a product of the hours worked multiplied by the hourly rate of Attorney and the legal assistant(s) performing the work. Client and Attorney expressly agree that Attorney’s hourly fee will be the |3minimum fee. Attorney’s minimum time charge is one-tenth of an hour.
B. Responsibility to provide legal services will be accepted and work will begin when Attorney receives the initial retainer of $150,000.00. The initial retainer will be placed in Attorney’s trust account and services performed and expenses advanced with be billed against that balance as appropriate on a monthly basis. When the fees and costs exceed the amount of the refundable portion of the retainer, Client will be expected to timely pay any amount due upon billing and, if requested by Attorney, Client will replenish the initial retainer fee with a like deposit. Occasionally, while the requested legal work is in progress, it might be necessary for Attorney to require an additional interim retainer. This could occur when Attorney is about to start the trial or similar large undertaking or as circumstances dictate. Attorney shall have the right to cease work and keep all funds previously earned if Client does not cooperate fully with Attorney in the handling of this matter or if Client does not make any additional deposits as may be requested by Attorney.
C. In further consideration of Attorney’s agreement to perform all necessary legal services on behalf of Client, and in recognition of the of the fact that time is of the essence in connection with the filing and prosecution of the lawsuit described in paragraph I.(A) above and completion of certain critical discovery that must be immediately commenced, all of which will require Attorney to devote significant professional time to Client’s legal affairs immediately to the exclusion of other legal work by Attorney, in addition to the aforementioned hourly fee, at the sole option of Attorney, Client agrees to pay Attorney 33.33% of any settlement made or judgment rendered after the filing of suit (whether by negotiation, mediation, compromise or otherwise), subject to Attorney’s obligation to credit back to Client all previously earned fees for work performed by Attorney in accordance with the Attorney hourly fee rate set forth in paragraph II.(A) above through execution of any judgment or completion of any settlement. Should an appeal be taken, Attorney will be compensated for all hourly work performed in connection with the appeal and the hourly fees charged for such work on any appeal shall not be subject to credit back to Client in the event the Attorney’s Earned Contingency Fee (as defined below) is accepted.
This additional fee shall be referred to as the Attorney’s Earned Contingency Fee. Attorney’s Earned Contingency Fee shall be calculated on and subtracted from the gross sum recovered. After deduction of Attorney’s Earned Contingency Fee, all expenses shall be deducted, including, but not limited to, court costs, experts’ fees, witnesses’ fees, court reporter fees and related expenses for consultants or other experts as discussed in this agreement. The | ¿balance shall be the net payable as recovery/settlement under this contract. Client and Attorney expressly understand and agree that in addition to the aforementioned hourly fee Client agrees to pay Attorney, Attorney’s optional Earned Contingency Fee for legal services detailed above may include not only monies recovered or received, but also a proportionate ownership interest in and to the immovable property, incorporeal movable property and/or incorporeal immovable property (including leasehold and/or mineral interests) relating to the Property equal to the percentage of the Attorney’s Earned Contingency Fee.

The Fee Agreement goes on to give a present assignment to J & 0 of a one-third interest in the subject matter of the suit, as permitted by La. R.S. 37:218.

The Fee Agreement also contained. a severability clause and the following termination provision: “In the event that Client discharges Attorney, Client agrees that Attorney shall be due as attorney fees a pro rata share of the highest attorney’s fees that may be recognized under this Agreement.”

Skannal paid J & 0 a $150,000 retainer in accordance with the Fee Agreement. The following day, March 14, 2005, J & O instituted suit against the Bamburgs to rescind nine agreements on the grounds of incapacity and fraud. In two separate opinions dated March 28, 2008 and July 31, 2008, the court nullified four of the nine transactions and awarded damages to the Skannals on the grounds of fraud. The four nullified transactions included a right to sell agreement, sale of membership and stock in an LLC, and a | ^mineral deed with assignment of leases. The court also awarded attorney fees of $500,000 and expert witness fees of $95,486.16. Ultimately a final judgment was rendered by the court on January 13, 2009. This court substantially affirmed the judgment on January 27, 2010, and the Louisiana Supreme Court denied writs on May 28, 2010.

The record shows that between March of 2005 and August of 2008, the Skannals paid J & O hourly fees totaling approximately $900,000. The Skannals admit to experiencing cash flow problems and falling behind on payments by August 8, 2008, when invoice No. 1807 was sent to them in the amount of $59,120.74. On September 18, 2008, J & O sent a letter to Barron and A.C. informing them as follows:

Under the current Fee Agreement, you were required to pay our monthly statements in a timely manner subject to the right to recover those fees if and when the case was won and we opted for the one-third contingency fee. However, when you are not paying the monthly statements as submitted, we run the significant risk of in essence of never getting paid for all the work we have been doing for the past several months and all the work we will be doing between now and the trial on expert and attorney fees. That is something that we know you did not intend and do not want to see happen.
As a fair solution, we propose amending paragraph II.C. of the Fee Agreement to provide for the repayment obligation on our part up until our invoice No. 1807, dated August 18, 2007[sic](showing ■a balance as of that statement of $59,120.74), but without the repayment obligation for the balance due on that statement |f,($59,124.74) or for work done thereafter. In other words, when we settle up and the royalty suspense accounts are unfrozen, you will be given credit for what you have paid related to the litigation on the invoices up to Invoice No. 1807, but for the past-due balance on that invoice, the time billed on that invoice and the time billed thereafter (up until any appeal is filed), we will get paid for our work.

Enclosed with the letter were copies of a proposed amendment to the Fee Agreement (hereinafter “Amendment”) which was finalized by the parties on October 9, 2008. The Amendment changed the first paragraph of II.(C) of the original Fee Agreement to add the following language:

[Ejxcept that the amounts for legal services due as shown on Attorneys’ Invoice Number 1807, dated August 18, 2008 (including any then past-due amounts), and work performed thereafter shall be payable from the proceeds of any recovery obtained, including funds payable from the release of any mineral royalties held in suspense during the pendency of the litigation, without the obligation on the part of Attorneys to reimburse the amounts shown on Invoice Number 1807 and subsequent invoices in the event the Attorney’s Earned Contingency Fee (as defined below) is accepted.

Otherwise, the contingency fee option as originally expressed in 2005 remained the same.

By June of 2009, an appeal of Skannal I was granted. In July of 2009, J & O had submitted a Fee Disbursement Agreement to the Skannals which was signed by them on July 23, 2009. The Fee Disbursement Agreement clearly stated for the first time that, “Attorneys hereby claim the Attorney’s Earned Contingency Fee.”

|7The Fee Disbursement Agreement calculated J & O’s contingency fee as a total of 33.33% of the $902,801.66 ($300,903.79) money judgment; in addition, a 33.33% share of “all the funds received from the various oil and gas companies” that were held in suspense since November 12, 2005; plus 33.33% of “future oil and gas revenues attributable to the interests of John C. Skannal” recovered as a result of Skan-nal 7; and 33.33% of the stock of the company and membership interest in an L.L.C. recovered as the result of the suit. Further, in addition to the contingency fee matter calculated above, the Fee Disbursement Agreement stated that “the repayment obligation of Attorneys shall be fulfilled by Client taking a credit against the Attorneys’ 33.33% share of the oil and gas reserves previously held in suspense.” Additionally, J & O sought “out of the proceeds of the oil and gas revenues previously held in suspense,” the sum of $59,075.74, $26,987.71, and $56,418.99, which were the amounts of unpaid invoices Nos. 1807, 2009, and 2639, for a total of $142,482.44. The Fee Disbursement Agreement also indicated that fees related to the appeal of Skannal I would be “han-died on the basis of an hourly charge of $200.00” and provided that the Skannals agreed to remit payment for “such future invoices.” The parties agreed to split the costs of title examinations concerning the recovered mineral rights at 2/3 for the Skannals and 1/3 for Attorneys.

J & O had begun contacting oil and gas companies in the summer of 2009 to remit suspended royalties. By August 18, 2009, J-W Operating Company paid $1,139,136.11 to the Skannal Succession and on August 31, | s2009, Chesapeake remitted $1,108,480.29 directly to Barron. After Chesapeake’s payment, the Skannals forwarded J & O payment of $142,482.22 in hourly fees and expenses, representing the past due invoices.

Nevertheless, on September 18, 2009, the Skannals instituted this suit against J & O. Specifically, the Skannals alleged that they had paid “the Firm over $1,000,000 in legal fees, costs and expenses” as of the date of the petition and were “current in their payments on Firm invoices.” The Skannals challenged the validity of the contingency fee provisions of the Fee Agreement, asserting that the agreement “did not require [J & O] to bear any risk of loss in exchange for the contingency fees.” The Skannals requested a declaration of their rights with respect to “the validity and enforceability” of all three agreements “to the extent they purport to provide for and require payment of a contingency fee,” and were “unreasonable, excessive and unearned.” Further, the Skannals argued that J & O improperly took an interest in the subject matter of the lawsuit. On July 7, 2010, Rice filed a petition of intervention naming the Skan-nals and J & O as defendants and seeking payment of “a contingent attorney’s fee” due him.

On March 29, 2011, the Skannals filed a motion for partial summary judgment wherein they sought a judgment declaring the contingency fee option invalid and unenforceable and annulling and rescinding the Fee Agreement. The Skannals argued that under Louisiana Rule of Professional Conduct 1.5(c) (hereinafter “Rule 1.5(c)”), the contingency fee in this case was invalid on its face.

|9In support of the partial summary judgment, the affidavit of Barron conceded that he signed both the Fee Agreement and the 2008 Amendment. Barron stated that between March of 2005 and August of 2008, the Skannals paid the firm more than $800,000 in hourly fees and that in July 23, 2009, J & O claimed the contingency fee by executing the Fee Disbursement Agreement. The three referenced documents and the September 18, 2008 letter from J & O to Barron and A.C. were attached to Barron’s affidavit.

J & O opposed the partial summary judgment, arguing that the issue of the risk of the outcome of the matter was fact based, which must be evaluated in terms of the reasonableness of the firm’s fee under Louisiana Rule of Professional Conduct 1.5(a) and was inappropriate for summary judgment. J & O characterized the Fee Agreement as a hybrid contract, which was “negotiated in an arm’s length transaction with the Skannals receiving and relying on the advice of independent counsel, Carl Rice.” J & O argued that the firm “risked a multitude of possible losses” that “became a colossal risk,” especially upon the Skannals’ failure to pay hourly fees.

The affidavits of Odom and Jones were filed by J & O in its opposition to the motion for partial summary judgment. The attorneys testified that their hourly rate for litigation services was $250-$275 and not the $200 rate employed in the Fee Agreement. Regarding the selection of the 33.33% contingency, Odom stated that J & O had initially sought the higher percentage of 40%, but had reduced the optional contingency in the | ^negotiations for the Fee Agreement. The lawyers asserted that in those negotiations for the contract, Rice acted on behalf of the Skannals.

The affidavits also discussed the events of 2008 when the Skannals became delinquent in paying the invoiced fees. After the trial court’s initial ruling in 2008, Rice asked for J & O to stop sending monthly bills because the Skannals “were broke.” This led to Odom’s letter proposing the Amendment to the Fee Agreement. Regarding the parties’ execution of the Fee Disbursement Agreement in the summer of 2009, Odom’s affidavit indicates that the firm expected to receive its $300,903.79 share of the money judgment and that the “credit back” of the previously paid invoiced fees would be accounted for out of the suspended royalties. J & O was to seek a court order in the Skannal Succession authorizing payment of those fees.

Odom also reported that in July of 2009, J & O filed a second lawsuit against the Bamburgs on behalf of the Skannals. In that connection, he received an email from Barron, in which Barron stated that “you’re entitled to 1/3 of the minerals and Sligo Hills both, so don’t you agree as part owner that we need to stay after Bamburg and keep the heat on.”

At the conclusion of the hearing on the motion for partial summary judgment, the trial court denied the motion on October 9, 2012. The court found “many disputed facts” but stated “[wjhether or not they are pertinent as to the legality of the contract or that clause of the contract is not clear as a matter of law.” Thereafter, this court granted a supervisory writ of review Into consider the Skannals’ claim of nullity of the contingency fee option of the Fee Agreement.

Louisiana’s Regulation of Attorney-Client Fee Contracts

The Louisiana Supreme Court explained its powers to regulate the practice of law in Succession of Wallace, 574 So.2d 348 (La.1991), as follows:

This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. LSBA v. Edwins, 540 So.2d 294 (La.1989); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 109, 115 (La.197[8]); LSBA v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Ex Parte Steckler, 179 La. 410, 154 So. 41 (1934); Meunier v. Bernich, 170 So. 567 (La.App.1936). The sources of this power are this court’s inherent judicial power emanating from the constitutional separation of powers, La. Const.1974, Art. II; Saucier v. Hayes Dairy Products, Inc., supra; Ex Parte Steckler, supra; Meunier v. Bernich, supra, the traditional inherent and essential function of attorneys as officers of the courts, Ex Parte Steckler, supra; Meunier v. Bernich, supra; and this court’s exclusive original jurisdiction of attorney disciplinary proceedings. La. Const.1974, Art. V, § 5(B); Saucier v. Hayes Dairy Products, Inc., supra. The standards governing the conduct of attorneys by rules of this court unquestionably have the force and effect of substantive law. Succession of Cloud, 530 So.2d 1146 (La.1988); Succession of Boyenga, 437 So.2d 260 (La.1983); Leenerts Farm [Farms], Inc. v. Rogers, 421 So.2d 216 (La.1982); Singer, Hunter [Hutner], Levine, Seeman & Stuart v. LSBA, 378 So.2d 423, 426 (La.1979); Saucier v. Hayes Dairy Products, Inc., supra; LSBA v. Connolly, supra; Ex Parte Steckler, supra.

Thus, under its inherent judicial power and its original jurisdiction, the Supreme Court of Louisiana has exclusive authority to regulate the practice of law in this state. La. Const, art. V, § 5(B); O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697; Mire v. City of Lake Charles, 540 So.2d 950 (La.1989). This broad grant of regulatory power includes the responsibility to exert control by adjudicatory means of individual cases as |12they arise, including those relative to discharge of counsel and regulation of fees, whether by contingency contract or otherwise. Saucier, supra.

Although the basic relationship between client and lawyer may be contractual, that association is nonetheless subject to the inherent authority of the Louisiana Supreme Court to positively affect that fiduciary relationship through its power to regulate the practice of law. Chittenden v. State Farm Mut. Auto. Ins. Co., 00-0414 (La.5/15/01), 788 So.2d 1140. Therefore, any dispute relative to an attorney-client relationship is subject to the close scrutiny of the Louisiana Supreme Court and is resolved under the codal provisions as illuminated by the Louisiana Rules of Professional Conduct. Id. Additionally, this court has stated that the Rules of Professional Conduct require “a thorough ‘education’ of a client by his or her lawyer about the fee and an explanation of why the lawyer recommended to the client the particular fee arrangement to the exclusion of other fee arrangements.” Watson v. Cook, 616 So.2d 803 (La.App. 2d Cir.1993), writs denied, 619 So.2d 579 (La.1993).

Louisiana Rules of Professional Conduct 1.5(a) and (c) regarding fees provide as follows:

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
|iq(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent. '
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original of the executed agreement shall be given to the client at the time of execution of the agreement. The contingency fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a •written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

Louisiana courts have long approved of the contingent fee contract to compensate attorneys. O’Rourke, supra. The Louisiana Supreme Court has defined a contingent fee contract as a contract for legal services in which the attorney’s fee depends upon success in the enforcement of the client’s claim. The attorney bears the risk of loss insofar as his legal services are concerned. Such contracts promote the distribution of needed legal services by reducing the risk of financial loss to clients and making legal services available to those without means. Saucier, supra. The Louisiana Supreme Court has stated that it views “the Code of Professional Responsibility as |14being the most exacting of laws established for the public good.” Leenerts Farms, supra.

Discussion

The Skannals argue that the Fee Agreement expressly assured J & 0 complete compensation earned under the firm’s current and scheduled hourly rates upon its rendering of legal services throughout the litigation even if the Skan-nals lost the litigation. Therefore, the additional optional compensation provided by the one-third contingency was not “contingent on the outcome of the matter for which the service was rendered” in violation of Rule 1.5(c). Relying on the face of the contract alone, the Skannals assert that J & 0 was granted the unilateral option to elect the contingency fee at any time during the course of the litigation, thus allowing it to retain its guaranteed fixed fee arrangement until such time that the risk of the litigation had significantly diminished or ended. As a matter of law, on the face of the parties’ contract, the Skannals seek summary judgment for the nullity of the contingency fee provision.

To the contrary, J & 0 disputes that view of the Fee Agreement, asserting that the affidavits of Odom and Jones raise material fact issues regarding the intended meaning and operation of the Fee Agreement. J & 0 summarizes its view of the contract in its brief, as follows:

|1B(1) Jones Odom’s option was not exercisable “at any time during the representation;” and (2) electing Jones Odom’s option required the Firm to pay back all hourly fees collected, thereby converting the fee arrangement to a true contingency where the effect of losing its judgment during the appellate process would have resulted in over four years of tireless work and collection of zero fees.

Although various issues of material fact are asserted by J & 0, from our review of the record it is undisputed that between March 2005 and the August 2008 firm billing for Invoice No. 1807, the Skannals had paid J & O approximately $900,000, representing “earned fees” under the Fee Agreement for the firm’s legal services. Prior to the billing for Invoice No. 1807, J & O had never expressly exercised its option for the contingency fee. By August of 2008, the trial of Skannal I had occurred and the trial judge had rendered his rulings rescinding the Bamburg contracts and assessing damages for fraud.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art. 2056.

The determination of whether a contract is clear or ambiguous is a matter of law. Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.6/2/10), 37 So.3d 1145; Town of Haynesville, Inc. v. Entergy Corp., 42,019 (La.App.2d Cir.5/2/07), 956 So.2d 192, writ denied, 07-1172 (La.9/21/07), 964 So.2d 334. Ambiguity exists as to the parties’ intent when the | ^contract lacks a provision on the issue or when the language of the contract is uncertain or fairly susceptible to more than one interpretation. Stephenson, supra; Rogers v. Horseshoe Entertainment, 32,-800 (La.App.2d Cir.8/1/00), 766 So.2d 595, writs denied, 00-2894 (La.12/8/00), 776 So.2d 463, 00-2905 (La.12/8/00), 776 So.2d 464.

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement. La. C.C. art. 1848.

Parties are free to contract for any object that is lawful, possible, and determined or determinable. La. C.C. art. 1971. This “freedom of contract” signifies that parties to an agreement have the right and power to construct' their own bargains. However, the state may legitimately restrict the parties’ right to contract if the proposed bargain is found to have some deleterious effect on the public or to contravene some other matter of public policy. Therefore, in a free enterprise system, parties are free to contract except for those instances where the government places restrictions for reasons of public policy. Family Care Services, Inc. v. Owens, 45,505 (La.App.2d Cir.8/11/10), 46 So.3d 234.

A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. Absolute nullity may be invoked by | i7any person or may be declared by the court on its own initiative. La. C.C. art. 2030.

Reviewing the parties’ contract under these principles, we find that the Fee Agreement unambiguously set forth a fixed-fee arrangement for J & O’s compensation, providing obligatory fees during the time the firm’s services accrued throughout the litigation and irrespective of the outcome of the suit. In that connection, the clear language of the contract does not support J & O’s assertion that upon the election of the contingency option the firm became obligated to pay back its earned fees, in this case approximately $900,000, and be subject to the possibility after August of 2008 of receiving “zero fees” if the trial court’s judgment was reversed on appeal. The $900,000 in fees was not paid back to the Skannals in the summer of 2008. Because of the close scrutiny applicable to fee contracts for regulation of the attorney-client relationship, it would not be “in the interest of justice” to admit the attorneys’ parol evidence to vary the content of the Fee Agreement so as to alter the contractual intent expressed in their written contract prepared for their clients as the operative fee arrangement. La. C.C. art. 1848.

The language of paragraph II.(C) of the Fee Agreement provides that the contingency would be “in addition to the aforementioned hourly fee.” The contingent fee which J & O could elect was one-third of the “gross sum recovered.” Out of the firm’s portion of the assets recovered and damages received in the litigation, the Skannals would receive a “credit back” for the firm’s prior earned fees.

11sRule 1.5(c) suggests a risk assessment of the outcome of the matter at the inception of the fee arrangement. Instead, with this disputed discretionary option exercisable by J & O long after the fee engagement and filing of suit, J & O could gauge the amount of its earned legal fees received throughout the course of the litigation while continuously assessing the size or value and the possibility of recovery. Such weighing of the values in dispute and the consideration of the likely outcome could extend throughout the course of the litigation before the firm’s election was required. In particular, the language first providing the firm’s option describes the resulting “credit back” right of the Clients as extending to “all previously earned fees for work performed ... through execution of any judgment.” The execution of judgment phase of any litigation is usually after the finality of a favorable judgment. Thus, fees could be earned in that phase and credited back against the contingency fee elected thereafter by the firm.

With this determination of the operation of the clear language of the parties’ contract, we find that public policy for the regulation of the attorney-client fee relationship was violated upon the execution of the Fee Agreement in 2005. Such policy violation concerns the underlying premise of reasonableness reflected in subsection (c) of Rule 1.5 and specifically addressed in subsection (a). In the usual setting, with the risk of the outcome of the matter present and measurable upon entering a fee contract, the total benefit to the attorney from the contingency may extend well beyond the maximum reasonable fee the attorney could otherwise obtain by imposing a fixed-fee obligation on the client from the start. Nevertheless, in 119this case, J & O prepared the contract for their clients with the contingency option as an additional contractual benefit to the firm over and beyond its fixed-fee benefits for which the Skannals were obligated. The contingency fee option did not expressly provide a stipulated time for its execution. The anticipated suit against the Bamburgs was to seek a money judgment against them in addition to the return of mineral rights and other assets. Therefore, the Fee Agreement suggests by its language an allowance for the election of the firm’s option even after the finality of judgment “through execution of any judgment.” At such stage of a legal dispute, “the outcome of the matter” can no longer be said to involve such contingent risk to allow for the sizeable one-third contingency fee out of the subject matter of the attorney-client representation. Thus, J & O’s open-ended option in this case does not fall, in our opinion, within the allowance for a contingent fee under Rule 1.5(c) when, under the other fee arrangement of the contract, the client was obligated throughout the risky course of the dispute for fixed fees that reasonably compensated J & 0 for its services.

Our policy concerns over the format of this Fee Arrangement as executed by the clients in 2005 have been reflected in the various commentaries for the' rules of ethics. For example, reviewing-the parallel American Bar Association model rules for contingency fees, one commentator observed:

The ethical justification for these approvals [of contingency fees] necessarily lies in the assumption that the lawyer’s risk of receiving no fee, or a fee that effectively will be well below her normal hourly rate or opportunity cost, merits compensation in and of itself:. Bearing the risk entitles the lawyer to a commensurate risk premium. Conversely, a lawyer not bearing risk cannot charge a risk premium. 120Therefore, a lawyer who charges a substantial risk premium in the form of a standard contingency fee in a case without meaningful fee risk is charging both an illegal and an unethical fee.

Lester Brickman, ABA Regulation of Contingency Fees: Money Talks, Ethics Walks, 65 Fordham L.Rev. 247, 271 (1996).

The inclusion of the “contingent” fee within the criteria for the measure of reasonableness under Rule 1.5(a), prompted the following observation:

Charging a contingent fee grossly disproportionate to any realistic risk of non-recovery would amount to charging a “clearly excessive” fee. The Model Code lists eight “factors to be considered as guides in determining the reasonableness of a fee,” including “whether the fee is fixed or contingent.” The only sensible interpretation of this latter factor, set forth in Disciplinary Rule 2-106(B)(8) and Model Rule 1.5(a)(8), is that for a contingent fee to be reasonable and therefore not “clearly excessive,” the lawyer must bear some risk of nonrecovery. Any other interpretation would result in an absurdity. If a lawyer could ethically charge a contingent fee absent any realistic risk of nonrecov-ery, then the fact that he charged, a contingent fee and thereby raised his fee beyond what a fixed fee would have yielded would be regarded as a factor attesting to the reasonableness of the fee.

Lester Brickman, Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark?, 37 UCLA L.Rev. 29, 71-72 (1989).

J & O argues that these policy issues are, nevertheless, not implicated because the Fee Agreement must be considered as a so-called hybrid fee contract. The Louisiana Supreme Court has not addressed the allowance for any hybrid contingency/hourly fee contracts which might be permissible under our Rules of Professional Conduct. See, In Re Gaston, 11-0390 (La.7/1/11), 65 So.3d 1239, and In re Curry, 08-2557 (La.7/1/09), 16 So.3d 1139. Only two Louisiana appellate cases have approved of a form of hybrid contingency fee agreements. The context of the disputed fee 12iagreements in those cases, however, involved contractual provisions converting from a contingency to an hourly fee obligation upon the client’s discharge of the attorney. Gilbert v. Evan, 01-1090 (La.App.1st Cir.6/21/02), 822 So.2d 42, writ denied, 02-1903 (La.10/25/02), 827 So.2d 1154; Anderson, Hawsey & Rainach v. Clean Land Air Water Corp., 489 So.2d 928 (La.App. 5th Cir.1986), writ denied, 492 So.2d 1221 (La.1986). These cases are therefore clearly distinguishable.

in Wythe II Corp. v. Stone, 842 S.W.3d 96 (Tex.App.-Beaumont 2011), cert denied, — U.S. -, 132 S.Ct. 1150, 181 L.Ed.2d 1020 (2012), the Texas intermediate court of appeal made statements in dicta objecting to any allowance for a fee contract with an attorney’s similar unilateral option of conversion to a contingency fee. While the actual fee contract in Wythe, as approved by a bankruptcy court, did not include any conversion option, the Texas court observed:

If the attorney could earn a reasonable fee on an hourly basis until recovery is assured and the work complete, but later exercise a unilateral option to collect a percentage of the client’s recovery, the fee would no longer be “contingent” on anything-in effect, the client could be required to pay regardless of recovery.

Other jurisdictions recognize contingency fee contracts which combine both substantially reduced hourly and contingency fee rates including those cases cited by J & O in brief. See, State, Public Employees Retirement Bd. v. Cacioppo, 813 P.2d 679 (Alaska 1991); Cotchett, Pitre & McCarthy v. Universal Paragon Corp., 187 Cal.App.4th 1405, 114 Cal.Rptr.3d 781 (App.Ct.2010); In re Market Center East Retail Property Inc., 469 B.R. 44, 67 Collier Bankr.Cas.2d 566 (10th Cir. BAP 2012). Seejagalso, Marketfare Annunciation, LLC v. United Fire & Cas. Co., 2009 WL 3672758 (E.D.La.2009); Anal v. Travelers Property Cas. Ins. Co., 2007 WL 1412492 (D.Ariz.2007). J & O argues that these cases demonstrate that the Rules of Professional Conduct do not prohibit the combination of a fixed fee obligation upon a client and a contingent fee component in a hybrid fee contract. From our review of this national jurisprudence, we find that the courts in these cases addressed attorney-client contracts with pronounced differences from the Fee Agreement.

Most importantly, in these hybrid settings, the balance between the client’s obligation to pay a lower hourly rate and the reduced percentage of the additional contingent reward is struck upon inception of the fee arrangement. This “hybrid” balance results from the parties’ evaluation of the risk of the “outcome of the matter” and the contingent fee percentage is then fixed by the client’s informed consent. Here, J & O claims a convertible fee arrangement that remained optionally available for the attorney’s evaluation alone for over three years, post trial on the merits.

Second, this written contract now claimed as a “hybrid” by J & O did not inform the client that both the hourly fees to be charged and the percentage of the contingency were reduced. Here again, the option element as expressed in the Fee Agreement suggests to the contrary that either fee, the hourly payments or the one-third contingency, would fully compensate J & O for its services. The Skannals were expressly informed by the agreement that the firm’s “scheduled hourly charges” would be charged, not reduced billing rates. We likewise find that a one-third contingency for this | ^litigation cannot be viewed as a less than typical contingency fee and significantly reduced. From the language of the Fee Agreement, the contingency fee option was said to be provided “in addition to the aforementioned hourly fee” because of the pressing time constraints placed on J & O by the litigation, not because the firm had significantly reduced its hourly fees.

Third, the analyses in some of the hybrid cases noted the clients’ concerns and possible inabilities for payment of the attorney’s regular hourly rates. This allowed the client to negotiate a lower hourly rate while at the same time, in exchange, allowing the attorney a reduced contingency award as an additional benefit. In this ease, the Skannals were able to pay an initial $150,000 retainer and paid J & O continuous billings up to almost $900,000 throughout the litigation phase to judgment before problems arose. The Skannals therefore entered the contract demonstrating their immediate and substantial financial ability to pay the firm’s scheduled hourly rates.

Thus, in summary, while we need not express our opinion over the possible use of hybrid fee arrangements in Louisiana, this Fee Agreement with J & O’s unilateral option is clearly distinguishable from those reduced fee/contingent contracts sanctioned in the cited jurisprudence. As a matter of law, the Fee Agreement violated public policy by effectively eliminating the risk of the “outcome of the matter” under Rule 1.5(c). The SkannalsJ^fully obligated themselves to a fair and reasonable fixed fee arrangement in 2005, and J & O’s one-third contingency fee option was a nullity.

Finally, we further address certain fact disputes and other assertions whereby J & O argues genuine issues of material fact. J & O emphasizes that after Mr. Skannal’s death, the inheritance taxes, the liquidity of the estate and any possible repayment obligation the Skannals might owe the Bamburgs were great risks extending into 2008-2009. Thus, J & O argues that even with success in the Bamburg litigation, there was a great risk that “the Skannals would have been ‘rich’ in assets and ‘poor’ in cash and the likelihood that J & O would have recouped any fee for its four years of work would have been very slim.” This depiction of the situation ignores the fact that through the August 2008 invoice, J & O had received “earned fees” of almost $900,000 for well over three years for the bulk of the litigation services. Those “earned fees,” as held above, were not contingent payments that J & O might be obligated to repay upon reversal of the trial court judgments on appeal. Moreover, the risk of insolvency of a client under a fixed fee arrangement is an inherent risk in such contracts. If J & O believed that it would not be paid its fixed fees after August 2008, the Rules of Professional Conduct allow for the possible ending of representation. Louisiana Rule of Professional Conduct 1.16.

Likewise, the two additional acts which the Skannals executed in 2008 and 2009, the Amendment and the Fee Disbursement Agreement, do not create material fact issues regarding the nullity of the contingency fee | ^provision of the Fee Agreement. In both agreements, the one-third optional contingency of the initial contract was acknowledged by the Skan-nals. Yet, an absolutely null provision of a contract in violation of public policy may not be confirmed. La. C.C. arts.2030 and 1842. Those two agreements prepared by the attorneys for the clients cannot provide J & O with the very same fee which was a nullity from the start.

Last, although J & O’s brief repeatedly references Rice’s participation as “independent counsel” for the Skannals, the public policy prohibition of this fee arrangement for the protection of an attorney’s clients does not become less absolute in its nullifying effect because of another lawyer’s advice. Rice’s agreement for a sharing of the one-third contingency with J & O, which was entered on the same day in 2005 as the Fee Agreement, hardly allows his participation in the matter to be considered independent.

Conclusion

For the foregoing reasons, we grant the Skannals’ partial summary judgment. The contingency fee option provision of the Fee Agreement is hereby declared a nullity. The judgment of the trial court is reversed. Costs of this appeal are assessed to J <& 0.

JUDGMENT REVERSED; PARTIAL SUMMARY JUDGMENT GRANTED; REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Skannal also had a daughter, Elizabeth Skannal, who signed subsequent documents.

      . Skannal’s questionable mental capacity and the Bamburgs’ sway over his decisions were the cause for the alleged invalidity of the business transactions.

      . The record shows that Rice witnessed the Skannals' Fee Agreement with J & O and that Rice and J & O entered into a Consultancy Agreement for consulting fees of 1/9 of the earned contingency fee from the suit on that same day. Rice later entered in to an additional 3% contingency fee agreement with A.C., individually, and Barron, individually, as executor for Skannal's succession and Trustee of the John C. Skannal Trust on July 24, 2009.

      . When Skannal died in November of 2005, his succession was substituted as plaintiff.

      . A complete synopsis of the facts, legal arguments and ultimate resolution of the issues involved in that litigation can be found in our earlier opinion of Skannal v. Bamburg, 44,820 (La.App.2d Cir. 1/27/10), 33 So.3d 227, writ denied, 10-0707 (La.5/28/10), 36 So.3d 254. (hereinafter, “Skannal I”).

      . During Skannal I, royalty payments of approximately $2.2 million were held in suspense by operators pending a determination of ownership of the mineral rights.

      . J & O argues that Skannal I involved $948,103.46 in attorney fees and $201,225.89 in expert witness fees.

      . The appeal judgment modified a trial court's order to delete the defendant's obligation to pay 1/2 of a real estate commission for the sale of certain lots.

      . The affidavit of J & O’s business manager submitted to the trial court in Skannal' I for the setting of ' attorney fees shows that $895,448 had been billed by and paid to the firm. Invoice No. 1807 was not listed in her report.

      . The originally filed suspensive appeal was converted to a devolutive appeal in August of 2009.

      . Louisiana Rule of Professional Conduct 1.5(c) requires that upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

      .The exact date that the option for the contingency was exercised is elusive. In its re-conventional demand, J & O alleges that it exercised its option in June 2009. Odom’s and Jones' affidavits indicate that the option was exercised "more than a year prior” to the execution of the Fee Disbursement Agreement in July of 2009. In brief, J & O's counsel indicates that the firm exercised the option in September of 2008.

      . Upon a motion for summary judgment, the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. 966(B)(2). A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780.

      . La. C.C. art. 2034 provides for the partial nullity of a contract provision.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Moses M. PARKER, Appellant.
    No. 48,339-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2013.

      Powell Miller, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, G. Mennon Campbell, John Michael Ruddick, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   CARAWAY, J.

liA unanimous jury found Moses Parker guilty as charged of aggravated rape in violation of La. R.S. 14:42. Parker was sentenced to mandatory life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. He now appeals his conviction. We affirm.

Facts

On October 6, 2006, Monroe police officers responded to a call regarding the rape of a 12-year-old girl at a local apartment complex. The victim was walking through the complex when she was approached by a man. In that initial conversation, the man asked the girl to go to a trailer park and into the woods, and she refused. She left to play ball with friends for approximately 25 minutes. As she left the group to obtain a drink, and walked through the apartment complex again, she encountered the man a second time. He led the girl to believe that something was wrong with him and directed her behind an apartment building where he raped her. The child described her assailant as a black skinny male wearing striped clothing and shorts.

Two witnesses told police they saw Parker and heard him speaking to the girl not long before the offense occurred. Both witnesses informed Parker that the girl “was just a kid.” One of those witnesses claimed she spoke with the girl after the incident. The child told the witness that the man who raped her was the same man who had talked to her earlier.

1¡¡From the witnesses’ descriptions, police developed Parker as a suspect and located him at his home in a trailer park adjacent to the apartment complex. Parker was transported to the police station where the investigating detective explained to Parker his rights before he signed the waiver of rights form. Parker then gave a statement in which he admitted having sex with the victim, but claimed that it was consensual and that he thought she was 17. The victim never identified Parker as her assailant at the time of the offense, and due to an oversight of the police department, no DNA testing was performed on the rape kit or defendant.

On October 26, 2006, a grand jury indicted Parker for the aggravated rape of 12-year-old K.S. on October 6, 2006. On November 15, 2006, the defendant filed a motion to appoint a sanity commission on the grounds that mental illness rendered him incapable of understanding the nature of the charges against him or assisting in the preparation of his defense. Specifically, Parker contended that at the time of the offense he was incapable of discerning right from wrong due to his schizophrenia and the fact that he had stopped taking his prescribed medication almost two weeks prior to the offense.

The court appointed a sanity commission but on April 3, 2008, Parker was found competent to stand trial. Nevertheless, on December 7, 2009, defense counsel' filed a motion to commit Parker to a state hospital based on the evaluations of sanity commission physicians and his own experiences in meeting with Parker to prepare his defense. Counsel argued that Parker was incapable of understanding the charges or proceedings and was unable to | ¡¡assist in his defense. The court ordered another expert evaluation of Parker by a clinical psychologist and neuropsychologist. After this expert concluded that Parker was not competent to stand trial, on March 15, 2010, the court ordered Parker committed to the state hospital, to be held until the hospital determined that he was able to assist in his defense. He was involuntarily committed on July 30, 2010.

On February 16, 2011, after hospital treatment and evaluation, the court found Parker competent to stand trial. Parker maintained a plea of not guilty and declined a dual not guilty/insanity plea. In pretrial proceedings the trial court ruled any expert reports regarding Parker’s mental capacity inadmissible for trial.

On February 22, 2012, the trial court heard the defendant’s December 2, 2009 motion to suppress. Parker argued in part that his mental and emotional status rendered him incapable of fully understanding his rights when he signed the waiver form.

Corporal Tracy Heath, lead investigator of the Monroe Police Department, testified for the defense about her interview with Parker on October 6, 2008. Heath said she explained the Miranda rights form. Parker signed the form and then gave a statement. He told her he had finished the 7th grade, had participated in Job Corps and attended trade school.

Parker told the officer that earlier that morning he drank some gin and smoked marijuana. Heath reported however that Parker did not appear |4intoxicated at the police station. His eyes were not bloodshot, his speech was not slurred, and he seemed to understand everything Heath said to him. Parker told her that he took a nap about noon that day, awoke around 8:00 p.m., and was on his way to the store when the offense occurred.

Parker told Heath about four medications he was supposed to be taking but had not taken for over a week. Heath did not know if Parker was telling the truth. Parker indicated to Heath that he guessed he was depressed. As a trained officer and licensed emergency medical technician, Heath knew the medications were for mental disorders such as bipolar or schizophrenia. Heath had dealt with schizophrenics before. She believed Parker answered all of her questions “normally,” recalled the details of the offense without difficulty, and appeared fine. Heath did not feel a medical evaluation was necessary since Parker appeared to understand everything and signed the form. Heath admitted that Parker indicated that his “mind play[ed] tricks on him” in the past. Parker admitted that he had sex with the 12-year-old victim, but said he thought it was voluntary on her part and he thought she was 17.

The state offered into evidence the rights form signed by Parker. No other evidence or testimony was presented by either the defense or the state.

After considering this testimony and reviewing the rights waiver form,' the trial court denied the motion to suppress. The defense objected to the ruling.

Trial on the merits began on July 23, 2012, with the testimony of the victim, who was by then 18 years old. She testified to the facts noted above. | ¡Additionally, she described a concrete slab off a rear door where the offense occurred. She said the man unfastened his pants, grabbed her hand, and put it on his genitals. He then grabbed her head and pushed it down, but she resisted. The man pulled the victim’s pants down and tried to give her oral sex. She said she felt paralyzed and did not move. He put his penis in her vagina and said weird things like “ride like a soldier,” and “I love you.” The victim testified that she felt the worst pain she had ever felt in her life and began crying. The man then stopped and began masturbating. She saw him ejaculate on the ground in the grass. She refused his attempt to give her money and walked her bike home, where she collapsed on the ground shaking. The victim described the man and his clothing, and said he had a low-cut shaved head and smoker’s breath. She said she was a virgin at the time, and did have some bleeding later on. The victim was not asked to identify Parker as her assailant at trial.

Three Monroe Police Department officers testified. Sergeant Charles Johnson stated that he took the victim’s statement and her description of her attacker. He transported Parker to the police station while the victim was taken to the hospital for treatment. Sergeant Cassandra Wooten testified that she also investigated the rape complaint and located Parker at his home. Officer Chris Medaries testified that he was dispatched to the scene and talked to witnesses. Based upon his conversations with the witnesses, Parker was developed as a suspect. He advised Parker of his rights after he | (iwas located by another officer. Medaries obtained consent from Parker to search his house and obtained a shirt Parker wore earlier in the evening.

Amanda McKoin testified that on October 6, 2006, she lived in the apartment complex and was outside that day walking to the store with her sister-in-law. McKoin identified Parker in court and said that he had approached the two of them that day and was trying to talk to her sister-in-law. During that time, the victim rode up to them on her bicycle. McKoin said Parker made a comment about the victim and the two women told him she was just a kid. Later the two women saw people gathered in a group talking about a rape. McKoin testified that she approached the girl and asked if her attacker was the same guy she had seen talking to them earlier. The girl answered yes. McKoin said that she had seen Parker twice before.

Officer Heath testified that she first spoke with the victim at the hospital, where the rape kit was performed. She stated that normally DNA samples were collected during the rape kit and from the suspect to be sent for testing, but that was not done here.

Heath repeated her testimony regarding Parker’s waiver of rights and his confession as given at the motion to suppress hearing. She identified the DVD recording of her interview of Parker; it was introduced into evidence and played for the jury. Heath testified that although Parker did not answer verbally regarding his understanding of the rights read to him, he signed the form and indicated his understanding of the rights then. Heath was questioned regarding Parker’s schizophrenia and medication. She again replied that Parker told her he had not taken his drugs for a week or so. She 17also testified about his drinking and smoking marijuana on the morning of the event.

In the recording shown to the jury, Parker appeared calm and removed his hat as Heath entered the room. Heath asked Parker if he had been advised of his Miranda rights before and said she would review the rights with him. She handed him a written copy of the waiver and asked Parker to read along with her as she read each one out loud. She advised that he was there because of the rape claim. After she read each right out loud, Parker nodded and said “yes, ma’am.” After reading all the rights, she said “If you understand these rights, please initial each one and sign at the bottom.” Heath then asked Parker if he wanted to talk about what happened. Parker initialed and signed the rights waiver form.

Parker did not appear to be visibly agitated. He answered the detective’s questions appropriately and admitted that he knew why he was there. Parker stated that he was 30 years old, had finished the 7th grade, lived in the trailer park, and for income received a disability check. He said that morning he had some coffee with his neighbors and saw some of his cousins. About noon he went in to take a nap. At approximately 3:00 p.m., he headed to the store when he saw the victim riding her bicycle. They exchanged greetings and then had a conversation. Parker said she told him she was from Washington, was leaving on Saturday, and she was 17 but turning 18 on November 8th. He saw two women walking down the sidewalk, a black woman talking to a white woman. They said hello and the white woman asked him for a cigarette. After a while, everyone left. He | slater saw the victim again and said to her, “Come here for a second.” Parker admitted that he had sex with a girl and that the girl was the one claiming that he raped her. Parker said that after he led her to the area between the building and the fence line, the victim came on to him and initiated every sexual act. He claimed that she undid his clothes, took off her own clothes, initiated the oral sex on him as well as the sexual intercourse.

Heath told Parker that one witness told police that she had informed him that the girl was “too young.” Parker insisted that the victim told him that she was 17 and that he had told her he could get into trouble. He said that after looking at her body, he did not think she was younger.

Parker said he did not use a condom and was last tested for HIV about four months before. He admitted he was on probation. The officer asked him what medication he was taking and he told her, but said he had not taken any medication for 1½ weeks. When she asked him what he took the medicine for, he rambled on a bit.

He described the events in detail, and said that he continued having sex until she told him to stop. She said she had to get home. He did not ejaculate inside the victim so he masturbated. The victim rode off on her bike. He went to the store, went home, and changed his shirt.

Parker told Heath that he did not know his statements were being recorded, but admitted that he saw her hit the record button on the recording device. He explained that he was not paying attention and then verbally acknowledged his understanding that his statements were recorded.

After Heath’s testimony, the state rested. The defense presented no |9evidence.

On July 26, 2012, a unanimous jury found Parker guilty as charged. A presen-tence investigation report was ordered and Parker appeared for sentencing on October 4, 2012. The trial court imposed the mandatory sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Parker has appealed raising one assignment of error.

Discussion

On appeal, Parker argues only that the trial court erred in denying his motion to suppress his statement, considering that he has only a 7th grade education with an IQ of 79, suffers from schizophrenia and at the time of his offense had stopped taking his prescribed medications. He contends that even though he signed the waiver of rights form, he did not understand the rights and thus the state failed to meet its burden to prove that his confession was “knowingly” made. Parker argues that the psychological evaluations establish that his mental status was compromised by his condition and that he was'incapable of understanding his rights in order to make a knowing and informed waiver.

La.C.Cr.P. art. 703 states, in pertinent part, that a defendant may move to suppress a confession or statement of any nature made by the defendant and 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.

ImGenerally, for a confession to be admissible into evidence, the state must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; State v. Anderson, 06-2987 (La.9/9/08), 996 So.2d 978, cert. denied, 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057, 77 USLW 3441 (2009). The state must also establish that an accused was advised of his constitutional rights, state and federal, and that he understood and knowingly waived those rights. Anderson, supra. Voluntariness is determined on a case-by-case basis, under a totality of the circumstances standard. Id.

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. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038.

In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may consider all pertinent evidence adduced at trial. State v. Brooks, 92-3331 (La.1/17/95), 648 So.2d 366; State v. Martin, 595 So.2d 592 (La.1992); State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753. A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless the evidence fails to support the trial court’s determination. 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). Accordingly, this court reviews the district court’s ruling on a motion to suppress under the manifest error standard for factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 06-2976 (La.3/9/07), 949 So.2d 441; State v. Marshall, 46,457 (La.App.2d Cir.8/10/11), 70 So.3d 1106.

Low intellect, moderate mental retardation or diminished mental capacity does not, per se, vitiate capacity to make a free and voluntary statement or a knowing and intelligent Miranda waiver. Anderson, supra; Brooks, supra; State v. Benoit, 440 So.2d 129 (La.1983); State v. Lindsey, 404 So.2d 466 (La.1981). Schizophrenia does not automatically render a defendant’s statements inadmissible. State v. Perry, 502 So.2d 543 (La.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987); State v. West, 408 So.2d 1302 (La.1982); State v. Jones, 376 So.2d 125 (La.1979); State v. Sims, 02-1244 (La.App.5th Cir.4/29/03), 845 So.2d 1116, writ denied, 03-2189 (La.8/20/04), 882 So.2d 570. Where sanity is an issue (specifically schizophrenia), in the context of a proceeding to determine the voluntariness of a confession, the state must prove that the defendant’s mental defect did not preclude the voluntary giving of a confession. Jones, supra. See also, State v. Coleman, 395 So.2d 704 (La.1981).12 A defendant’s prior experience with the criminal justice system is a factor to be considered in determining the voluntariness of a confession. State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272; State v. Ashworth, 554 So.2d 271 (La.App. 3d Cir. 1989), writ denied, 561 So.2d 113 (La.1990).

Our review of the expert reports submitted at Parker’s sanity hearings establishes Parker’s schizophrenia. Of those four experts, three concluded that at the time of the offense, Parker was not suffering from a mental disorder which rendered him incapable of knowing right and wrong. The fourth expert was unable to render an opinion on this fact. One of the experts described schizophrenia as a disorder in which the individual experiences times of clear thinking and has the ability to recall relevant facts.

Testimony by Officer Heath, as well as the recorded interview, show that Parker was behaving normally, easily answered all questions asked of him, and was able to recall the details of the event. Officer Heath did not observe any behavior that indicated to her that a mental evaluation of Parker was necessary. Upon review of the rights, Parker read along and nodded after each one. Parker showed no signs of confusion. Given Parker’s 27 prior arrests, he was familiar with the rights that had been explained to him before. He initialed each right and then signed the form. Thereafter Parker was able to provide a detailed narrative of his actions earlier that day which corresponded to those facts given by the victim with the exception of her consent and his belief that the girl was 17. He did so with a coherent | ^recollection of specific and relevant events. Overall, he exhibited clear thought processes.

When viewed in light of the entire record, we find the evidence sufficient to sustain the state’s heavy burden or proving a knowing and intelligent waiver. Considering the officer’s observations, Parker’s apparent understanding of the circumstances as evidenced by the recorded statement, his familiarity with the judicial system and the expert’s conclusions regarding his ability to discern right from wrong at the time of the crime, we find no error in the trial court’s determination that despite Parker’s schizophrenia, he was capable of knowingly and intelligently waiving his rights and freely and voluntarily made his confession.

CONVICTION AND SENTENCE AFFIRMED.

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

      . Johnson had no independent recollection of the facts surrounding Parker’s statement at the police station, which was made in his presence.

      . In Brooks, supra, the court considered the testimony of five mental health experts who testified at pretrial hearings and reports of mental health experts appointed on a sanity commission.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Kendrick M. COX.
    No. 13-305.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Kendrick M. Cox.
    Van Hardin Kyzar, District Attorney, Natchitoches, Louisiana, for Plaintiff/Ap-pellee, State of Louisiana.
    Charles Wilson Seaman, Attorney at Law, Natchitoches, Louisiana, for Plaintiff/Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   CONERY, Judge.

^Defendant, Kendrick M. Cox, was charged on September 11, 2009, via a bill of information with one count of armed robbery and armed robbery with use of a firearm, violations of La.R.S. 14:64 and 14:64.3, and one count of second degree battery, a violation of La.R.S. 14:34.1. A jury trial commenced on January 18, 2011. On January 19, 2011, Defendant was convicted of armed robbery and second degree battery.

Defendant was sentenced on March 18, 2011, to the minimum sentence of ten years at hard labor without benefit of probation, parole, or suspension of sentence on the conviction for armed robbery and three years at hard labor on the conviction for second degree battery, to be served consecutively with the ten year sentence and with credit for time served. Defendant did not orally move for or file a motion for reconsideration of the sentences.

Defendant was granted an out-of-time appeal. He asserts that the evidence was insufficient to establish that he was the man who committed the offenses of armed robbery and second degree battery. For the following reasons, we affirm his convictions.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there are no errors patent.

STANDARD OF REVIEW

In State v. Dotson, 04-1414, pp. 1-2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310, 312, this court has explained the insufficiency analysis as follows:

lain considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

Further, when the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207 (La.1984); State v. Wright, 445 So.2d 1198 (La.1984). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror’s reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence. On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded.

Furthermore, included with proving the elements of an offense is the necessity of proving the identity of the offender. When the key issue in a case is identification, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. McGee, 04-963 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, writ denied, 05-593 (La.5/20/05), 902 So.2d 1050.

ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. 1: Kendrick’s fundamental right to a fair trial was violated [because] the victim, the only witness, never identified him as the assailant at trial. Kendrick’s trial counsel was ineffective for failing to seek a directed verdict and failing to file for a judgment notwithstanding the verdict after [trial] because the victim never identified Kendrick at trial.
ASSIGNMENT OF ERROR NO. 2: The evidence was insufficient to convict the [sic] Kendrick of armed robbery or second-degree battery |abecause evidence beyond a reasonable doubt was not presented at trial [to prove that] Kendrick was the assailant who committed the offenses.

Both assignments of error will be addressed together as Defendant’s primary complaint in both is that he was never adequately identified by the victim, Ms. Velma Berryman, as the man who robbed and battered her. The victim gave a statement to police that the. robber’s face was covered, and she could only see his eyes. Later, after she recovered from the incident, she told the police that she recognized Defendant as the robber by his voice. Defendant complains there was never a “voice line-up.” Furthermore, Defendant asserts that while the victim testified he was the man who robbed her, she never identified him by his voice at trial.

Defendant further argues that the testimonies of several persons who saw him walking in the same neighborhood as the convenience store wearing clothing very similar to the clothing the victim said the robber wore were not credible or sufficient to establish beyond a reasonable doubt that he was the offender.

Finally, Defendant asserts ineffective assistance of counsel for failure to ask for a directed verdict or for failing to file a motion for judgment notwithstanding the verdict based on the above allegations.

FACTS

At trial, Ms. Berryman testified that she was the owner and sole operator of Ms. B’s Quick Stop (Ms. B’s). The shop is located in Natchitoches, Louisiana, in an area known as the Payne subdivision. Ms. Ber-ryman testified she was familiar with the streets behind her store, which were Payne, Keith, Mary,- and Cherie Loop.

|4On the morning of August 1, 2009, Ms. Berryman opened the store early. At approximately 10:00 a.m., as she was stocking shelves, she suddenly noticed a person standing in front of the TV. The person was wearing a heavy, black coat with a dark fur trimmed hood. She remembered wondering who would be wearing such a heavy garment on such a hot day. When the person turned towards her, she saw that he had a bandana across his face. The hood was pulled low over his forehead and all she could see were his eyes. The man had a gun and told her he would blow her brains out. He told her to open the cash drawer. She told him if he wanted the cash drawer open he could do it himself. Ms. Berryman attempted to grab a gun she kept under the counter, but Defendant wrestled it out of her hand. Ms. Berryman was then struck on the head with a gun. During the scuffle, her arm and a leg were injured and a stone was knocked out of her ring. According to Ms. Berryman, after being struck with a gun, her head struck the counter as she was knocked to the floor. Ms. Berryman stated Defendant stole about $150.00 and her gun.

Ms. Berryman explained that when the officers first arrived at the scene, she was unable to identify Defendant, as she was disoriented and upset due to Defendant’s striking her head with a gun, and further due to her hitting her head on the counter when she was knocked to the floor. The next day, after recovering from the initial shock of the assault, Ms. Berryman told the police she knew who Defendant was, as she was familiar with and recognized his voice. Ms. Berryman explained .she knew Defendant’s voice because he was a frequent customer of the store. Defendant admitted in the recorded statement on August 6, 2009, that he had worked for Ms. Berryman, cutting the grass behind the store with another individual. In addition, he admitted that he had obtained “credit” from the store. |fiFurther, Defendant admitted that he came into the store a few minutes before the incident to purchase cigarettes. Ms. Berryman testified that it was Defendant who had robbed and battered her. She identified him as her assailant in court and testified at trial, “But I thought about it. I had just talked to the man. And the voice, it came back to me that was the same voice I had just heard.”

Michael Wilson, Assistant Chief Investigator for the Natchitoches Parish Sheriffs Office, testified at trial that he arrived on the scene shortly after the police were notified. Based on the description given by Ms. Berryman of a person wearing a heavy winter coat with a hood, he sent officers out into the Payne neighborhood to canvas for potential witnesses. He also sent out police tracking dogs.

The tracking dogs wound through the Payne neighborhood and ultimately alerted on a pair of tennis shoes located on property where Defendant lived with his mother. Defendant’s mother identified the shoes as those belonging to Defendant. Officer Wilson testified that DNA testing verified that the DNA taken from the shoes established they belonged to Defendant.

Michelle Vrana, a forensic DNA expert, testified at trial that Defendant could not be excluded as the major contributor of the DNA located in the shoes. Ms. Vrana further testified that the DNA extracted from the stone lost from Ms. Berryman’s ring during the struggle, which was found by investigators at the scene, did not contain any DNA consistent with Defendant’s DNA.

The canvas of the Payne neighborhood produced a number of witnesses who gave statements and ultimately testified at trial about their encounters with Defendant on the day of the incident. Officer Wilson testified that he interviewed David Bradley, who said he saw Defendant the morning of the incident in the |fiPayne subdivision wearing a black, heavy winter coat with a hood. Mr. Bradley gave Officer Wilson a few names of others in the neighborhood who had also seen Defendant the morning of the incident.

Prior to conducting interviews with those witnesses, Officer Wilson brought Defendant into the police station and interviewed him. Defendant denied any involvement in the robbery.

Officer Wilson then began a series of interviews with the individuals identified by Mr. Bradley. These individuals included Rodney Goston and Tyrone Demery. Each witness testified that they encountered Defendant around 10:00 a.m., while they were together on Mary Street. The witnesses knew Defendant from the neighborhood, and each testified they saw him on the morning of the incident wearing a heavy black coat with the hood up. However, when Defendant stopped to talk to them later in the day, the hood was down. The men were amazed that Defendant was wearing such a heavy coat in spite of the August morning heat. When they questioned Defendant about wearing such a heavy coat in the heat, they got no response. In addition, the men noticed that Defendant had blood on one of his hands. Defendant told the three men that as he was walking through a small wooded area located behind Ms. Berryman’s store, he was attacked by two deer. As he ran from the deer, he fell and cut his hand. Each of the three men also testified that they had never heard of deer being in that area.

Willie Easily also testified that Defendant stopped by his house for five to ten minutes on the morning of the incident. Mr. Easily stated that Defendant was wearing a heavy jacket with the hood up. Some twenty minutes later Defendant returned wearing only jeans, without a coat or shirt. Mr. Easily noticed a cut on 17Pefendant’s finger and Defendant explained that he “ran into some deer up in a trail or something like that.” [sic]

Another neighborhood resident, Gary Braxton, testified at trial that he saw Defendant on the morning of the incident walking along the street. Defendant appeared to be counting money. According to Mr. Braxton, Defendant was bare chested.

DeMaurice Moore, a neighbor who was friends with Defendant, told the police that on the night of the incident, he and Defendant went out together. Mr. Moore said Defendant bought two bottles of whiskey and paid for tickets so that both could attend a concert at the local civic center. Mr. Moore later testified that .Defendant had won money gambling the night before.

Based on the information gathered from the individuals in the neighborhood near Ms. B’s, Officer Wilson brought Defendant into the police station a second time, Mir-andized, and interviewed him. The interview was taped, transcribed, and submitted into the record at trial. Defendant stated that on the morning of August 1, 2009, he got up about 6:30 or 7:00 a.m. He dressed in a white T-shirt, black shorts, and tennis shoes. He went to Ms. Berry-man’s store, bought some cigarettes, and walked back home. Defendant claimed he did not see or talk to anyone other than Ms. Berryman. He stated that he left to go to a funeral around 11:80 a.m. or 12:00 p.m.

Defendant told Officer Wilson that he had gone out with DeMaurice Moore on the evening of August 1, 2009. He said that he had no money, and Mr. Moore paid for everything. Defendant further stated that he cut his hand on the morning of August 1st while styling his hair. Despite his mother’s prior identification of his tennis shoes, Defendant denied that the shoes were his. When he was confronted with the witnesses’ statements taken in connec-. tion Iswith the case, Defendant contended that they were all lying.

Defendant’s testimony at trial was essentially the same as his interview, except that he stated he won about $200.00 the night before the incident playing dice. He insisted, however, that he had stashed the money at his grandmother’s house the next morning, so he did not have money on the evening of the robbery. Therefore, he had no money to buy alcohol or concert tickets, as Mr. Moore claimed.

Defendant offered a picture of some bills lined up on a floor as proof that he had money on the evening before the incident. The picture shows one ten, two fives, and twenty-two one dollar bills. Defendant testified he was so excited to have won the money that he ironed the bills for the picture. Although there appear to be only $42.00 in the picture, he also testified the “[o]nes lined up ... and they got fives and the tens under it.” Defendant further testified that he did not tell Officer Wilson about the money he had won gambling because Officer Wilson had not asked about the money during the interview. A friend, Alex Pugh, testified that he was with Defendant when he won some money playing dice.

■ Defendant finally admitted at trial that the shoes found behind his house were his shoes, but claimed he sold the shoes a few wéeks prior to the incident. Defendant explained that he told the officer the shoes did not belong to him because at the time of the questioning about the ownership of the shoes, he was unaware of what shoes Officer Wilson was referencing.

Defendant then testified to a list of all of the grievances the witnesses had against him to éxplain why they were lying about his actions on the morning of the incident.

| .ANALYSIS

In contesting Ms. Berryman’s identification, Defendant argues that: “the record fails to reflect the only eyewitness failed to identify Kendrick by his voice at trial, the only manner by which she could identify the person who robbed her.” Defendant further argues that in the initial interview with police, Ms. Berryman never identified Defendant as her assailant by his voice or by any of the physical characteristics that she could see at the time of the incident, including his eyes or thé shape' of his head. Defendant asserts Ms. Berryman was not offered the opportunity to participate in a voice line-up due to her age and Officer Wilson’s belief that Ms. Berryman was not an expert in voice recognition.

The State argues there was no need for a voice line-up, since Ms. Berryman had already identified Defendant by his voice. We agree. In the case of photographic or physical line-ups, a victim who could not identify the offender is offered a line-up for the purpose of identifying the offender. However, if the victim knows who the assailant was and can tell the police, a lineup may very well not be necessary. In voice identification, if the victim could not see the perpetrator’s face but had only heard his voice, then a voice line-up could be a useful tool to identify the suspect. State v. Pickney, 97-1591 (La.App. 3 Cir. 5/27/98), 714 So.2d 854, writ denied, 98-1857 (La.11/13/98), 730 So.2d 457.

In Pickney, the victim of an aggravated rape did not know her assailant and was unable to describe his face or estimate his height and weight, but said that she would be able to recognize his voice. Accordingly, a voice recognition line-up was prepared for her. She picked out her assailant, who was tried and convicted. On appeal, Pickney complained his due process rights were violated as the voice | ^identification line-up was suggestive and led to a substantial likelihood of misidenti-fication.

Pickney’s conviction for aggravated rape was affirmed by a panel of this court on the basis that the identification procedures used in the voice line-up were not unduly suggestive, thus the panel did not reach the issue of a substantial likelihood of mis-identification.

Defendant avers that the record does not reflect that Ms. Berryman identified him by his voice during the trial proceedings. It appears Defendant is suggesting that the State should have had Defendant stand and say a few words so that Ms. Berryman could say, “Yes, that’s his voice, all right,” in order to have proved its case. However, in a case with a similar fact scenario, State v. Mitchell, 35,970 (La.App. 2 Cir.5/8/02) 818 So.2d 807, the court held:

Voice identification is a problem of authentication rather than a problem of a lay witness’s competency to identify a voice. Sufficient authentication can be established by circumstantial evidence pointing to the unseen speaker’s identity or by testimony of a witness familiar with the speaker’s voice. Authentication based on familiarity with the speaker’s voice can be gained subsequent to the communication. (Citations omitted.) State v. Green, 448 So.2d 782 (La.App. 2 Cir.1984).
The trial court correctly found that the state laid a sufficient foundation to support Cotty’s lay opinion testimony concerning her inferences regarding the defendant’s voice which were drawn from personal factual observations. Cotty testified that during the course of the robbery, she heard the defendant’s voice “many, many times.” Cotty stated that the defendant shopped in her store, and she had heard his voice before. Cotty explained that the defendant’s mother and family shopped at the store. She said her town was “little bitty,” and she spoke, to just. about everyone who came into the store. This argument is therefore without mefit.

Id. at 816-17.

In Mitchell, a voice line-up was not required based on the foundation laid that Mitchell hád been into the store many times and the voice identification was | nbased on the victim’s “personal factual observations.” Mitchell, at 816-817. In the current case, which has almost identical facts to Mitchell, Ms. Berryman testified that she talked to Defendant on numerous occasions, as he was often a customer in her store. On the morning of the incident, Defendant had just been in the store to purchase cigarettes. When he returned a short time later, he told her that he was going to blow her head off and demanded that she open the cash drawer.

Ms. Berryman identified him as her assailant in court and testified at trial, “But I thought about it. I had just talked to the man. And the voice, it came back to me that was the same voice I had just heard.” Ms. Berryman also described the heavy black coat with a hood that Defendant wore, which was an oddity because it was such a hot August day. Defendant’s contention that a voice line-up should have been conducted or that Ms. Berryman failed to identify him as her assailant at trial has no merit.

Several witnesses who knew and spoke with Defendant that morning testified that he walked up to them as they stood in the street wearing a heavy black coat with a hood. One witness testified he saw Defendant counting money as he walked along. Defendant said that he had no money with him on the evening after the robbery, yet his friend, Mr. Moore, testified Defendant paid for alcohol and concert tickets.

Defendant also submits that the DNA sample from the blue stone from Ms. Ber-ryman’s ring was not consistent with Defendant’s DNA and is clearly exculpatory. The lack of Defendant’s DNA on the stone lost from Ms. Berryman’s ring does not exculpate Defendant. Ms. Varna testified that Ms. Berryman’s DNA was also not found on the stone and it may have simply popped out when she fell.

112In State v. Wommack, 00-137, p. 6 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 370, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62, this court stated:

As stated above, the defendant’s appellate counsel contends the evidence was insufficient, but does not specifically contest the evidence as a whole. Rather, counsel points to several issues he contends undercut the State’s case. First, counsel contests Ms. Smith’s testimony regarding identification of the assailant’s voice. We have pointed out that Ms. Smith testified she immediately recognized the voice of the assailant as that of the defendant. She stated she had worked with the defendant for approximately one and one-half years and he had been friends with her husband. The defendant had visited in her home and was a guest in her van on several occasions. According to her testimony, Ms. Smith heard the assailant’s voice on three separate occasions. Throughout the matter, she was unequivocal in her identification of the assailant’s voice as that of the defendant.
Counsel argues that “[a]s Janet Smith told Officer Kenneth Pine that she only recognized the assailant’s voice as his face was covered and she could only see his eyes, there can be no earthly reason why a voice identification line-up was not conducted.” Counsel asserts that such a procedure could have established the defendant’s innocence. While such a tool may have been available during the investigation, there is no legal authority requiring its use. This argument is without merit.

Similarly, in the current case, we find there is no merit to the assignment of error that there was insufficient evidence to convict Defendant of the offenses charged. Between Ms. Berryman’s testimony and the testimonies of the several witnesses, viewed in a light most favorable to the prosecution, the jury had sufficient evidence upon which to base the verdicts.

Finally,' Defendant argues that defense counsel’s performance was defective because he failed to seek a directed verdict or to file a judgment notwithstanding the verdict “because the victim never identified Kendrick by voice at trial.” This court also finds there was no defective performance on defense counsel’s part and no merit to this assignment of error.

| ^DISPOSITION

Defendant’s convictions for armed robbery pursuant to La.R.S. 14:64 and second degree battery pursuant to La.R.S. 14:34.1 are affirmed.

AFFIRMED.