author: CRAIN, J.

text:
    STATE of Louisiana v. Logan Nestor MILLS.
    No. 2013 KA 0573.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 27, 2014.
    Rehearing Denied Sept. 26, 2014.

      Walter P. Reed, District Attorney, Leigh Anne Wall, Assistant District Attorney, Franklinton, Louisiana and Kathryn Landry, Baton Rouge, Louisiana, for PlaintifflAppellee, State of Louisiana.

      Bruce G. Whittaker, New Orleans, Louisiana, for Defendant/Appellant, Logan Mills.
    Logan N. Mills Angola, Louisiana, Pro Se/Appellant.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

| ¡.The defendant, Logan Nestor Mills, was convicted by a jury of armed robbery, armed robbery "with a firearm, aggravated obstruction of a highway of commerce, and two counts of attempted first degree murder. His sentence for the conviction of armed robbery was vacated after he was adjudicated a second-felony offender, and he was sentenced to seventy years at hard labor. He was sentenced to fifteen years at hard labor for the aggravated obstruction of a highway conviction and forty years at hard labor without benefit of parole, probation, or suspension of sentence for each conviction of attempted first degree murder, with those sentences running concurrent with the sentence for armed robbery. He was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence for the armed robbery with a firearm conviction, with that sentence to be served consecutive to the sentence for armed robbery.

We affirm the defendant’s convictions, habitual offender adjudication, and sentences.

FACTS

On April 20, 2011, the defendant and Walter Aswell entered the Capital One Bank on Columbia Street in Bogalusa, wearing masks and carrying guns. While Aswell stood guard at the back, the defendant held up his gun, told the tellers to keep their hands up, and demanded money. One of the tellers handed money to the defendant and triggered the silent alarm. The defendant and Aswell fled the bank in a black Jeep.

13A chase ensued involving units from the Bogalusa Police Department and the Washington Parish Sheriffs Office, with shots being fired from the Jeep at the pursuing units. The chase continued into Mississippi, with shots exchanged between the pursuing officers and the fleeing Jeep. The chase ended in Mississippi when the defendant and Aswell abandoned the Jeep and fled on foot in opposite directions. Both the defendant and Aswell were apprehended and taken into custody after being shot by police. Officers identified the defendant as the passenger in the Jeep who fired multiple shots at police.

The defendant testified at trial that the bank robbery was Aswell’s idea and that he unwillingly participated because Aswell threatened to shoot him if he did not. According to the defendant he was following Aswell’s instructions when he walked into the bank, raised his gun, pointed it at the bank teller, and walked up to her. Aswell remained behind him holding a gun. The defendant took the money that the teller placed on the counter, put it in the front pouch of'the hoodie he was wearing, then turned and walked out. The defendant claimed he was the driver of the Jeep in which he and Aswell fled and that Aswell was riding in the backseat, gripping a gun and instructing him not to stop the vehicle. As the police pursued them, As-well moved into the front passenger seat and began shooting at the police. The defendant denied shooting at police officers or firing any weapons on the day of the robbery. He testified that he ran from the stalled Jeep because the officers were shooting and he was afraid. The defendant fell to the ground and was handcuffed after being shot in the ankle and back. He denied resisting arrest, claiming that the officers beat him after he was handcuffed, which caused serious injuries. Subsequently, the defendant filed suit against the officers in federal court.

i Counseled and pro SE ASSIGNMENTS OF ERROR NUMBER 1

In his first counseled and pro se assignments of error, the defendant contends that the trial court erred in denying his challenges for cause as to prospective jurors Elizabeth Jackson, Lili Huang, Mary Gunnell, and Kelly Crain, because their answers to voir dire questions indicated that they were not qualified to serve on the jury. The record reflects that there was no objection to the trial court’s rulings denying the challenges for cause as to prospective jurors Gunnell and Crain. A defendant may not assign as error on appeal a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. La.Code Crim. Pro. art. 800A. Accordingly, we will not consider the defendant’s arguments regarding Gunnell and Crain.

An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const, art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors’ qualifications by testing their competency and impartiality and discovering bases for intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (LaApp. 1 Cir.), writ denied, 468 So.2d 570 (La.1985); State v. Williams, 457 So.2d 610, 613 (La.1984). An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error; therefore, prejudice is presumed when a defendant’s challenge for cause is erroneously denied and the defendant exhausts all of his | .^peremptory challenges. State v. Taylor, 08-1834 (La.5/25/04), 875 So.2d 58, 62. In this case, because the defendant objected to the trial court’s ruling that denied his for-cause challenges as to prospective jurors Jackson and Huang, and the defendant exhausted all of his peremptory challenges, including peremptory challenges as to both of those prospective jurors, we need only consider whether the trial court abused its discretion in determining that no cause existed for the removal of Huang and Jackson.

Louisiana Code of Criminal Procedure article 797(2) provides, in pertinent part, that the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. When a juror expresses a predisposition as to the outcome of a trial, a challenge for cause should be granted. Yet, if after subsequent questioning, or rehabilitation, the juror exhibits the ability to disregard previous views and make a decision on the evidence presented at trial, the challenge is properly denied. When addressing whether a challenge for cause should be granted, the trial judge must look at the juror’s responses during his or her entire testimony, not just isolated answers. State v. Sparks, 88-0017 (La.5/11/11), 68 So.3d 435, 461, cert. denied, — U.S.—, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Martin, 558 So.2d 654, 658 (La.App. 1 Cir.), writ denied, 564 So.2d 318 (La.1990). However, if a prospective juror is able, after examination by counsel and the court, to declare to the court’s reasonable satisfaction that he is able to render an impartial verdict according to the law and evidence, it is the trial court’s duty to |Bdeny a challenge for cause. See State v. Claiborne, 397 So.2d 486, 489 (La.1981).

A trial court is afforded broad discretion in determining whether to strike a juror for cause because of the trial court’s ability to form a first-person impression of prospective jurors during voir dire. State v. Brown, 05-1676 (LaApp. 1 Cir. 5/5/06), 935 So.2d 211, 214, unit denied, 06-1586 (La.1/8/07), 948 So.2d 121. Therefore, the trial court’s rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Lee, 637 So.2d 102, 108 (La.1994).

Jackson expressed that she had a strong opinion about guns. In response to questioning by the court, Jackson indicated she would try to separate her personal convictions. She further stated that she would try to be fair, but did have a concern. She also indicated that she would probably want to hear the defendant explain his intention in taking the gun with him. When asked if she could afford the defendant his right to remain silent, Jackson stated that she would probably want to hear from the defendant, but that she did not think she would hold it against him if he did not testify.

The defense challenged Jackson for cause arguing that she stated she would have to hear the defendant’s explanation for why he had a gun, suggesting that she would require that the defendant testify. The State argued that the defense was taking Jackson’s answers out of context, and- the court responded that it did not perceive Jackson’s response to be that she would like to hear from the defendant. The defense then challenged Jackson for cause on the basis that she had a strong opinion about guns, again arguing that Jackson stated she wanted to hear the 17defendant’s explanation for having a gun. The court denied the challenge for cause.

During the course of voir dire it is not uncommon for prospective jurors to express feelings of apprehension about serving on a case and to question their own ability to be fair. Deference is given to the trial court’s determination as to whether such feelings of apprehension rise to the level of warranting being excused for cause because the trial court has the benefit of seeing the prospective juror’s facial expressions and hearing their vocal intonations as he or she responds to questions, which are not discernable from a cold transcript. See State v. Dorsey, 10-0216 (La.9/7/11), 74 So.3d 608, 627, cert. denied, — U.S. —, 182 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Here, Jackson never expressed a predisposition about the outcome of the case. Faced with the weighty burden of judging, she was candid in stating her feelings about issues and declared that she would try to be fair and did not think she would hold it against the defendant if he did not testify. She gave no indication that she would not follow the law as given to her by the court.

After reviewing Jackson’s voir dire examination as a whole, we find that the totality of her responses demonstrated her willingness and ability to decide this case impartially according to the law and evidence, and did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred. The trial court did not abuse its broad discretion in denying the challenge for cause as to prospective juror Jackson.

The defendant argues that the trial court erred in denying his challenge for cause as to prospective juror Huang due to an English language barrier. In order to serve as a juror, a person must be able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language. La. _jCode8 Crim. Pro. art. 401A(3). The defendant contends that Huang’s voir dire responses indicate that she was not so qualified.

Huang stated that she moved to Bogalu-sa in 1998, graduated from Bogalusa High School, and worked at China Star Restaurant. She revealed that English was her second language and expressed concerns about her ability to serve as a juror because she sometimes either skips or guesses at the meaning of words she does not understand. She indicated that she understood the concepts that had been discussed in court but also had a fear that she may have to guess the meaning of some words. Defense counsel challenged Huang for cause arguing that she could potentially miss testimony. The State responded that Huang’s answers to questions indicated she understood the proceedings. The court acknowledged Huang’s personal concerns but denied the challenge for cause, stating that Huang was as competent as the other potential jurors.

Again, the question of a juror’s qualifications is addressed to the sound discretion of the trial judge within the bounds prescribed by law; and, although the trial judge’s ruling in these matters is subject to review, it will not be disturbed in the absence of clear abuse. State v. Scott, 278 So.2d 121,125 (La.1973); State v. Mitchell, 08-136 (La.App. 5 Cir. 1/13/09), 7 So.3d 720, 734. After a thorough review, we find no abuse of discretion in the trial court’s ruling that denied the for-cause challenge of Huang. She had been living in Bogalu-sa approximately fourteen years at the time of trial and had attended and graduated from Bogalusa High School. While being questioned about herself and the legal principles presented, she demonstrated her ability to speak and comprehend the English language. Although Huang expressed concerns about English being her second | ¡language, her exchanges with counsel and the court indicated she possessed sufficient knowledge of the English language to qualify her as a juror.

These assignments of error are without merit.

COUNSELED AND PRO SE ASSIGNMENTS OF ERROR NUMBER 2

In his second counseled and pro se assignments of error, the defendant argues that he was denied his constitutional right of confrontation when the trial court refused to allow him to question Aswell regarding the maximum possible sentences the law allows for the crimes to which Aswell pled guilty. At trial the defendant admitted that he committed armed robbery, but urged the defense of justification, claiming that he acted under threat of being shot by Aswell, and he denied committing attempted first degree murder. Aswell offered testimony for the State that directly contradicted the defendant’s defense. On appeal, the defendant contends that the trial court’s refusal to allow him to question Aswell regarding Aswell’s maximum sentencing exposure for the crimes committed kept the jurors from learning the circumstances of Aswell’s plea agreement, which prevented the jury from evaluating Aswell’s credibility and denied the defendant his right to present a defense.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to confront the witnesses against him. The right of confrontation does not merely allow the defendant to physically confront the witnesses against him, but secures the defendant’s right to cross-examine the prosecution’s witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131, 1135. The confrontation clause of Louisiana’s | ^constitution specifically and expressly guarantees the accused the right to confront and cross-examine the witnesses against him. See La. Const, art. 1, § 16.

Cross-examination is the primary means of testing the truthfulness of a witness’ testimony. Davis, 415 U.S. at 316, 94 S.Ct. at 1110; State v. Robinson, 817 So.2d at 1135. “[E]xposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316-317, 94 S.Ct. at 1110. In order to cross-examine a witness effectively, a defendant must be afforded the opportunity to demonstrate any bias or self-interest that is attached to that witness’s testimony. See La.Code Evid. art. 607D(1); State v. Rankin, 465 So.2d 679, 681 (La.1985). A witness’s hope or knowledge that he will receive leniency from the State is highly relevant to establish bias or interest, as is the possibility that the prosecution may have some leverage over a witness due to pending criminal charges or a plea agreement. See State v. Rankin, 465 So.2d at 681; State v. Brady, 381 So.2d 819, 822 (La.1980); State v. Franks, 363 So.2d 518, 520 (La.1978).

The State called Aswell to testify at trial against the defendant. He said that he pled guilty to armed robbery, three counts of attempted first degree murder, aggravated obstruction of a highway, and illegal use of a firearm — the same charges for which the defendant was being tried. Aswell indicated that he had not yet been sentenced, but would be sentenced to anywhere from twenty-five to thirty years. On cross-examination, Aswell acknowledged that his plea agreement included his agreement to testify against the defendant and reiterated that his expected sentence under the plea agreement was between twenty-five and thirty years. The State objected when defense counsel asked Aswell about his maximum sentencing exposure absent the plea agreement. Defense counsel argued that if | n Aswell did not testify in conformity with his written statement, the court would not be bound by the agreement and could “max him out.” The court ruled that defense counsel could not, through his cross-examination of Aswell, reveal the maximum sentencing exposure allowed by law because doing so would reveal the defendant’s potential sentencing exposure to the jury. Defense counsel then asked Aswell if he faced substantially more time if he did not testify in accordance with his pre-trial statement. Aswell answered that his plea agreement was that he would be sentenced to no more than thirty years no matter what. At a bench conference the State confirmed that As-well’s plea agreement was that he would be sentenced to thirty years if he pled guilty, with the possibility that he would be ' sentenced to only twenty-five years if As-well testified truthfully and if the court agreed. The court then upheld its previous ruling prohibiting defense counsel from examining Aswell regarding the maximum possible sentences he could have received absent the plea agreement.

The record establishes that Aswell agreed to testify and plead guilty in return for a twenty-five year sentence if he testified truthfully in accordance with his pretrial statement. Otherwise, he was to be sentenced to serve thirty years. The State argues that, because the only reduction in .sentence that was directly linked to As-well’s agreement to testify truthfully was the promised reduction from thirty to twenty-five years, the maximum possible sentences for the convictions were not relevant. The defendant counters that As-well’s sentencing exposure was ninety-nine years for the armed robbery, fifty years for each of the three counts of attempted first degree murder, and fifteen years for aggravated obstruction of a highway. He argues that if maximum sentences were imposed consecutively, Aswell faced a potential total sentence of two hundred sixty-four years, and [ 12AsweIl’s plea agreement reduced that exposure. The defendant argues that revealing the maximum total sentencing exposure was necessary to show the leverage which the State held over Aswell relative to his testimony and, consequently, Aswell’s potential bias.

Plea agreements involving State •witnesses are an essential tool for the prosecution of many criminal cases. Consequently, they are fertile ground for cross-examination by a defendant seeking to expose bias on the part of the State’s witnesses. The specific terms of the plea agreement reveal the full extent of both the leverage being exerted by the State and the potential bias on the part of the witness. The facts surrounding a witness’s plea agreement must be considered and weighed by. the factfinder so as to judge the truthfulness of the witness’s testimony. Cf. State v. Rankin, 465 So.2d at 681-82; State v. Brady, 381 So.2d at 822.

Although the State asserts that the terms of the plea agreement did not include a reservation of its right to seek a sentence of more than thirty years if As-well did not testify against the defendant according to his pre-trial statement, that does not negate the fact that Aswell admitted committing crimes that carried a much greater sentencing exposure than thirty years. The defendant was legally entitled to explore and develop facts from which the jury might infer the reason the State agreed to cap Aswell’s potential sentences at only thirty years. Whether the promise of a thirty-year sentence was part of As-well’s plea agreement to testify for the State or, as contended by the State, was independent of that agreement, is a fact that could affect the jury’s perception of the leverage exerted by the State and Aswell’s potential bias. The State’s agreement to cap Aswell’s sentence at thirty years, alone, could have influenced As-well’s willingness to testify. The difference between reducing Aswell’s sentencing exposure from thirty years to twenty-five | isyears, rather than from two hundred sixty-four years to twenty-five years, could be significant and it was the prerogative of the jury to weigh that information in judging Aswell’s credibility and the truthfulness of his testimony.

The trial court’s reason for limiting the defendant’s cross-examination of Aswell was to safeguard the defendant’s potential sentencing exposure from being indirectly revealed to the jury, which is reasonable. Although our law neither requires nor prohibits a jury from Jpeing charged on the penalty for the crimes with which an accused is charged, the general rule is that the jury need not be told of the applicable penalty. See State v. Blackwell, 298 So.2d 798, 804 (La.1974) (on rehearing), cert. denied, 420 U.S. 976, 95 S.Ct. 1401, 48 L.Ed.2d 656 (1975); State v. Lilly, 12-0008 (La.App. 1 Cir. 9/21/12), 111 So.3d 45, 52, writ denied, 12-2277(La.5/31/13), 118 So.3d 386. This is be- ; cause imposition of sentence is solely within the province of the judge and is not a function of the jury, which is concerned with the guilt or innocence of the accused. See State v. Lilly, 118 So.3d at 52. However, in this case the defendant’s stated goal was not to inform the jury of the sentencing range he faced if convicted, but to show the State’s possible leverage over Aswell. When the desire not to confuse the jury as to its proper role by indirectly informing it of the defendant’s possible sentencing exposure is balanced against the defendant’s constitutional right to confront his accusers through fully effective cross-examination, the defendant’s constitutional rights must triumph.

The defendant should have been permitted to question Aswell regarding the maximum sentences that he could have received absent his plea agreement. With Jj^the benefit of that information, the jury, as the sole triers of fact and credibility, could appropriately draw inferences relating to the State’s leverage over Aswell. Without the benefit of that information, the jury was limited in its ability to determine bias or impartiality on the part of Aswell. Under' the particular facts presented, the trial court’s ruling infringed on the defendant’s constitutional confrontation right by denying him the right to fully cross-examine Aswell.

Confrontation errors are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 681,106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) (noting that the Constitution entitles a criminal defendant to a fair trial, not a perfect one). When a confrontation error is discovered, the United States Supreme Court has instructed:

The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. An error is harmless if the verdict rendered was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081,124 L.Ed.2d 182 (1993).

The defendant does not deny that he committed armed robbery; rather, he claims that his conduct was justified and therefore excusable. The defendant characterizes Aswell as an absolutely critical witness for the State both for | ^supporting the State’s case in chief and for directly attacking the heart of his justification defense. Justification defenses are based on circumstances that make the accused’s conduct excusable on policy grounds and are therefore treated as affirmative defenses that the accused must establish by a preponderance of the evidence. See State v. Cheatwood, 458 So.2d 907, 910 (La.1984); State v. Jeanfreau, 11-1237 (La.App. 1 Cir. 2/10/12), 2012 WL 602384; State v. Schell, 492 So.2d 169, 171 (La.App. 1 Cir.), writ denied, 496 So.2d 1042 (La.1986). The State is not required to prove the absence of excusable circumstances. State in Interest of ML and PL, 95-0045 (La.9/5/95), 660 So.2d 830, 834.

The defendant’s justification defense rested solely on his own testimony and therefore hinged on the jury finding him to be credible. The defendant explained that he and Aswell were friends and the subject of robbing a bank came up as “a joke” approximately a month before this incident. The night before the incident, the defendant and Aswell went running together on the St. Tammany Trace, and Aswell again brought up the idea of robbing a bank. The defendant stated that he told Aswell it was a stupid idea and that he would not help Aswell. When the defendant attempted to leave, he heard a gunshot and turned to see Aswell pointing a gun at him. Aswell threatened to shoot the defendant if the defendant did not help him. The defendant testified that he “basically gave up,” believing he would only be driving Aswell to the bank and waiting in the car.

The defendant changed into clothes that Aswell pulled out of a backpack, and tied a black t-shirt around his face like a mask as Aswell directed. The defendant testified that he followed Aswell’s instructions, and the two walked to a nearby subdivision and, near sunrise, stole a Jeep. The defendant drove the Jeep with Aswell riding in the rear passenger seat holding the gun. Following Aswell’s Indirections, the defendant pulled off of the road where they waited for approximately two and a half to three hours before driving toward Bogalu-sa. Outside the bank, Aswell for the first time instructed the defendant to enter the bank with him and again threatened to shoot him if he did not comply.

The defendant testified that he drove the Jeep after he and Aswell left the bank and that Aswell sat in the back passenger seat gripping his pistol and instructing him where to go. According to the defendant, once one of the police units approached the side of the jeep, Aswell moved into the front passenger seat and began firing shots at the police unit. The defendant denied shooting at police officers or firing any weapons on the day of the robbery.

Aswell’s testimony contradicted that of the defendant; however, for purposes of the harmless error analysis, we must examine the record for corroboration since it must be assumed that the damaging potential of the cross-examination was realized and that Aswell’s testimony was discredited. See Delaware v. Van Arsdall, 475 U.S. at 684,106 S.Ct. at 1438.

Deputy Scott Seals with the St. Tammany Parish Sheriffs Office, and Officers Chad Cassard and Patrick Lyons of the Bogalusa Police Department, who were involved in the chase and arrest of the defendant, also testified for the State. They described multiple shots fired from the Jeep at the deputies, one of which shattered the rear window of Deputy Seals’ police unit and struck the cage behind his head. Officers Cassard and Lyons identified the passenger as the shooter. The officers testified that at some point during the chase, the Jeep stalled and coasted into the parking lot of an old grocery store. Officer Cassard testified that the passenger continued to shoot at the officers from the Jeep after it stopped. Upon exiting the Jeep, the passenger was wearing a mask and pointed his pistol at |17Officer Cassard. The driver and passenger met in front of the Jeep before the two ran in opposite directions. The driver was subdued first. Officer Cassard and Deputy Seals then pursued the passenger. Deputy Seals testified that he saw the passenger at the edge of the woods, and that the passenger raised a gun at him. Deputy Seals then fired and saw the passenger fall. Deputy Seals, Officer Cas-sard, and Officer Lyons struggled with the passenger and described him as trying to reach his pistol even after being shot. Once subdued, the passenger’s mask was removed. Each of the officers identified the defendant as the passenger.

The officers’ testimony directly contradicted the defendant’s testimony that he was the driver in the Jeep, that he did not fire at the officers, and that he did not struggle with the police. The officers’ testimony regarding the defendant’s actions upon exiting the Jeep also contradicted the defendant’s justification theory that he was acting under the compulsion of Aswell’s threats. See and compare State v. English, 34,164 (La.App. 2 Cir. 12/20/00), 774 So.2d 1186, 1191-92, writ denied, 01-0520 (La.10/12/01), 799 So.2d 499.

Additionally, the physical evidence contradicted the defendant’s testimony. On the date of the incident, a 9 mm Beretta pistol was recovered in the area where the defendant was apprehended. When the defendant and Aswell exited the Jeep, As-well ran in the opposite direction from the defendant. A few days later, a 9 mm H & K pistol was located near the area where Aswell had been apprehended. An expert in firearms examination and tool mark identification examined both pistols. He concluded that the 9 mm casings in evidence were all ejected by the Beretta. | irTIius, the entire weight of the testimony and physical evidence contradicted the defendant’s testimony and established that the defendant was the passenger in the Jeep and was in possession of the Beretta that was fired multiple times at the pursuing police officers.

It is the function of the jury to weigh the testimony of every witness. If the jury determines that a witness willfully or deliberately testified falsely to any material fact for the purpose of deceiving it, then the jury may conclude that the witness’s testimony is unworthy of belief and disregard the entirety of the testimony as proving nothing. See State v. Petitto, 12-1670 (La.App. 1 Cir. 4/26/13), 116 So.3d 761, 770, writ denied, 13-1183 (La.l1/22/13), 126 So.Bd 477. The jury’s verdicts finding the defendant guilty of attempted first degree murder reflect that the jury clearly rejected the defendant’s testimony that he was not the driver and that he did not fire shots at the police officers. The jury necessarily determined that the defendant testified falsely as to these material facts. Consequently, the jury was justified in rejecting the entirety of the defendant’s testimony, including his justification defense.

After considering all relevant factors and the evidence presented by the State, we conclude that the-jury’s verdicts were surely not attributable to the trial court’s error in denying the defendant the right to fully cross-examine Aswell as to 119his maximum sentencing exposure prior to entry of the plea agreement. The jury clearly rejected the defendant’s testimony, which was the only evidence that could have possibly supported his claimed defense of justification. Therefore, the confrontation error was harmless beyond a reasonable doubt. See La.Code Crim. Pro. art. 921; State v. Rankin, 465 So.2d at 683-85.

COUNSELED AND PRO SE ASSIGNMENTS OF ERROR NUMBER 3

In his last counseled and third pro se assignments of error, the defendant argues that the trial court erred in allowing the State to impeach him with the civil petition filed on his behalf in federal court, which alleged that the defendant was a passenger in the Jeep. According to the defendant, that petition was “rank hearsay” and could not be considered a statement against interest.

Before the defendant testified, his counsel urged a motion in limine seeking to limit the State’s cross-examination of the defendant by excluding statements made in the civil petition. According to the defendant, the petition was unverified and the statements contained within it were inadmissible hearsay. The defendant also argued that the statements made in the petition were those of the defendant’s civil attorney who was not called to testify. The trial court denied the motion in li-mine, finding that the statement was one against interest in a legal proceeding. The court stated that if the defendant took the stand and testified that he was actually the driver of the Jeep, the door would be open to cross-examination based upon the federal pleading and that the defendant could explain the purpose of the representation in the petition.

The defendant took the stand and testified that he was the driver of the Jeep. During direct examination, he explained that he understood the “legal definition” 120of “passenger,” as used in the petition, to mean anyone in the vehicle, even the driver. The defendant testified that he drove the Jeep away from the bank with Aswell riding as passenger, and maintained that he did not shoot at the police or fire any weapons. During cross-examination, when questioned about the federal lawsuit alleging that he was the passenger, the defendant explained that he told his attorney that he was driving the Jeep. He then indicated that he had not spoken to the California attorney representing him in the federal suit, but “[t]hey talk,” implying that the attorney in the federal suit communicated with him through his defense counsel.

An accused who takes the stand is subject to impeachment by discreditation as is any other witness. La.Code Evid. art. 607A; State v. Vessell, 450 So.2d 938, 946 (La.1984). To attack the credibility of a witness, a party may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony. La.Code Evid. art. 607C. By taking the stand and testifying that he drove the Jeep, the defendant opened the door for attack on his credibility via the civil petition. See State v. Schrader, 518 So.2d 1024, 1038 (La.1988).

These assignments of error are without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 4

In his fourth pro se assignment of error, the defendant argues that the prosecutor committed reversible error during closing arguments by making highly prejudicial and inflammatory remarks and intentionally misstating testimony.

During closing argument, the prosecutor stated:

_J_2]Yes [the Bogalusa Police Department officials who testified at trial] were interested if any of their officers had abused these men after they were handcuffed and brought under control. But until this week, Walter Aswell couldn’t say it was, you know, who it was, what happened. And here in the courtroom he said it wasn’t these three officers.

Defense counsel objected and argued that the prosecutor’s comments mischarac-terized Aswell’s testimony. The trial court sustained the objection. At trial, three officers were brought into the courtroom, and Aswell was asked if he could identify the man who struck him out of the three. He responded, “Not out of those three.” He went on to say, “I don’t believe any of those three were him, but, like I said, there were, there was more than one person that struck me.”

Referring to the fact that the defendant was pulling on his chest tubes at the hospital after being brought in for the injuries he sustained on the date of the incident, the prosecutor stated:

They [the officers] were in a fight for their lives. Just because there were three of them and they were bigger, he’s still fighting. And a gun is a great equalizer. Little guys with guns can kill big guys.
And what do we know? He was still fighting at the hospital.

The defendant objected, arguing that that was not the testimony before the court. The trial court overruled the objection, stating that it was up to the jury to decide. At trial, Dr. Richard Friend testified that pulling on chest tubes is not indicative of a level of consciousness and that combative behavior is very common in patients that are being ventilated, have tubes in them, and are experiencing pain.

Louisiana Code of Criminal Procedure article 774 confines the scope of argument to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”

_[_2gThe trial court has broad discretion in controlling the scope of the opening and closing arguments. State v. Prestridge, 399 So.2d 564, 580 (La.1981). However, even if the prosecutor exceeds these bounds, the court will not reverse a conviction if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. See State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).

The defendant has not shown how the jury was influenced by the alleged misstatements or how they contributed to the verdicts. In light of the testimony presented in this case, we do not find that the jury’s verdicts were the result of the argument made by the prosecutor, but rather a result of the evidence of the defendant’s guilt. Credit should be accorded to the good sense and fair-mindedness of the jurors who heard the evidence presented during the trial. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998). Additionally, the trial court properly charged the jury that the statements and arguments made by attorneys are not evidence, and that the opening statements and closing arguments are not to be considered as evidence. The jury was also instructed that in closing arguments, the attorneys were permitted to present their contentions regarding what the evidence had shown or not shown and what conclusions they thought may be drawn from the evidence. Thus, any possible prejudice from the prosecutor’s remarks was cured by the trial court’s charge to the jury. See State v. Vaccaro, 411 So.2d 415, 428 (La.1982). Accordingly, this assignment of error has no merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 5

The defendant complains in his fifth pro se assignment of error that his trial counsel was ineffective for failing to object to the prosecutor’s alleged | agmischaracterization of testimony of the individuals driving by the bank after the robbery. Specifically, the defendant points to the prosecutor’s remark that four of the five individuals testifying were in agreement.

A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Car ter, 96-0387 (La.App. 1 Cir. 11/8/96), 684 So.2d 432, 438.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Felder, 00-2887 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 369-70, writ denied, 01-3027 (La.10/25/02), 827 So.2d 1173. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La.App. 1 Cir. 1992), writ denied, 614 So.2d 1263 (La.1993).

I^Five individuals who were in vehicles that drove by the bank after the robbery testified at trial. Geraldine Ledet testified that she saw two people and that the first person entered the driver’s side of the Jeep. She saw the other person stop and pick up something. Dianna Thomas, who was riding with Ledet, testified that she saw only one person. The person she saw bent over, put money in a bag, and then got into the driver’s seat in the Jeep. Wanda Terrell, Kermit Martin, and Amanda Carnegie were riding in a vehicle together. Terrell testified that she saw two men exit the bank and one of them bent down to pick up something. Carnegie saw two people exit the bank and saw one of them drop money, stop, and pick it up. She was not certain whether the first person she saw exit the bank entered the driver’s side of the Jeep. Martin testified that the first person got into the driver’s side and the second person, who stopped to pick up money, entered the passenger’s side.

In her closing argument, the prosecutor stated that Ledet and Thomas testified that they saw the person who dropped the money and bent down to pick it up get inside the driver’s side of the vehicle. She also stated that Carnegie and Terrell testified that they saw two people exit the bank. The first person entered the passenger side of the Jeep and the second person bent over, picked up something, and entered the driver’s side of the Jeep. Finally, the prosecutor stated that Martin got the two individuals “switched up” and that he thought the second person who exited the bank entered the passenger side of the Jeep. After she reviewed their testimony, the prosecutor stated, “you had five people — and four of them are absolutely in agreement. And Mr. Martin, who was in the backseat, got a little — got them switched.”

12/The prosecutor’s statements are argument. While she argued that the witnesses were in agreement, the jury heard the testimony and was charged to distinguish the evidence from argument. The jury was properly cautioned that what the attorneys said in closing argument was not evidence. Furthermore, the State presented substantial evidence, including the testimony of the officers involved in the chase and subsequent shoot-out and struggle with the defendant that established that the defendant was the passenger in the jeep. Thus, even assuming that the prosecutor’s remarks were objectionable and that defense counsel should have objected, considering the trial court’s specific instruction regarding argument by counsel and the other evidence presented by the State, the defendant was not prejudiced by the alleged deficient performance. Therefore, the-defendant has failed to make the required showing of sufficient prejudice, and as such, his claim of ineffective assistance of counsel is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 6

In his last pro se assignment of error, the defendant argues that he was denied a trial “with any semblance of fairness.” Specifically, he contends that reversal is required due to the errors complained of in his first-five assignments of error. Having individually addressed each of those arguments and having found them to provide no basis for relief, we find this assignment of error to be without merit.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

      . At the time of the imposition of the habitual offender sentence, the trial court did not state that it would be served without the benefit of parole, probation, or suspension of sentence, as is required by Louisiana Revised Statute 14:64. See State v. Bruins, 407 So.2d 685, 687 (La.1981). Similarly, the minute entry does not mention the restriction of these benefits. Nonetheless, these sentencing restrictions are automatic pursuant to Louisiana Revised Statute 15:301.1A. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 799.

      . The defendant’s reliance in his pro se brief upon State v. Pinion, 06-2346 (La. 10/26/07), 968 So.2d 131, 136 (per curiam) is misplaced. Pinion involved the requirement of accepting an obnoxious juror to prove prejudice on appeal and made no mention of Louisiana Code of Criminal Procedure article 800. The issue of prejudice is not before us. Rather, we rely on the clear language of Article 800 and the procedure recited in State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 388-89, both of which require that a defendant lodge a contemporaneous objection to the trial court's ruling in order to assign as error the trial court's refusal to sustain his challenge for cause.

      . The jury must be informed of the penalty when the statutory offense requires a mandatory penalty with no judicial discretion as to its imposition following the verdict. See State v. Lilly, 111 So.3d at 52; State v. Albert, 430 So.2d 1279, 1286 (La.App. 1 Cir.), writ denied, 433 So.2d 711 (La. 1983).

      . Compare State v. Bennett, 550 So.2d 201, 204-205 (La.App. 3 Cir. 1989), writ denied, 554 So.2d 1236 (La.1990) (finding that the defendant’s constitutional right of cross-examination was violated when he was not allowed to question a witness about his plea agreement, but failing to then conduct a harmless error analysis).

      . Notably, a condition for application of the justification defense is that the defendant report to the proper authorities when he attains a position of safety from the immediate threat. See Schell, 492 So.2d at 171. Here, the evidence established that instead of submitting and reporting to the authorities, the defendant fled. Flight and attempt to avoid apprehension, while not conclusive of guilt, are evidence of consciousness of guilt. State v. Fuller, 418 So.2d 591, 593 (La.1982).

      . All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid or abet in its commission, or directly or indirectly counsel or procure another to commit the crime are principals. La. R.S. 14:24. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state, which in the case of attempted first degree murder is specific intent to kill. State v. Smith, 07-2028 (La. 10/20/09), 23 So.3d 291, 300; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, 930, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). It is not enough that his accomplice have the intent, the State must prove that the defendant had the required mental element. State v. Tate, 851 So.2d at 930. The State’s entire premise was that the defendant was the passenger in the Jeep who fired at the officers during the chase and aimed his pistol at the officers thereafter. The State did not present evidence or argue that the defendant was a principal to crimes committed by As-well. Rather, the State presented evidence upon which the jury reasonably could have found the defendant guilty of the crimes charged.

      . In the federal lawsuit, the defendant asserted a cause of action under Title 42, Section 1983 of the United States Code against the arresting officers.

      . We note that the statements contained in the defendant’s civil petition did not constitute hearsay. The allegations in the civil petition were made by the attorney hired by the defendant to file the suit on his behalf. A statement is not hearsay if it is offered against a party and is by a person authorized by him to make a statement concerning the subject. La.Code Evid. art. 801D(2)(c).

      . The defendant points out additional comments made by the prosecutor and contends that they were also highly prejudicial and inflammatory. However, his counsel failed to object to those comments. Therefore, the defendant waived any error as to those comments by failing to object to them during closing argument. See La.Code Crim. Pro. art. 841.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Nelson DAKMAK, Sr. v. BATON ROUGE CITY POLICE DEPARTMENT.
    No. 2012 CA 1468.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 2014.

      Mary Roper, Veronica Jones, Gwendolyn K. Brown, Baton Rouge, Louisiana, for Defendants/ Appellants City of Baton Rouge and Stephen C. Tibbetts.
    Charles V. Musso, Jr., Kendrick J. Gui-dry, Michael J. Williamson, Lake Charles, Louisiana, for Plaintiffs/ Appellees John Mark Dakmak, Individually, and as the succession representative of the Estate of Nelson Dakmak, Sr., William Joseph Dak-mak, and Nelson Joseph Dakmak, Jr.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

1 gIn this case involving an automobile accident between an on-duty police officer and another driver, the defendant police department appeals a trial court judgment rendered in accordance with a jury verdict finding it at fault and awarding damages to plaintiffs, as well as the trial court judgment denying defendant’s motion for judgment notwithstanding the verdict. Plaintiffs answered the appeal. We amend the judgment to reduce the survival damages award to the statutory cap of $500,000.00, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from an accident which occurred on February 2, 2008 on Airline Highway in Baton Rouge, Louisiana between an on-duty Baton Rouge Police Department (“BRPD”) officer, Stephen C. Tibbetts, and plaintiff, Nelson Dakmak, Sr. On the night of the accident, just prior to 10:40 p.m., Officer Tibbetts was patrolling the area of Airline Highway when he saw a vehicle traveling north on Airline Highway which matched the description of a stolen vehicle. He pulled out onto Airline Highway and attempted to catch up with the • vehicle in order to determine if it was in fact the stolen vehicle. He did not activate his lights or sirens, but floored the accelerator, eventually reaching a speed of 92 miles per hour. At this time, Mr. Dak-mak was traveling south on Airline Highway. When Mr. -Dakmak attempted to turn left onto Delcourt Street from Airline Highway, his vehiclé was struck by Officer Tibbetts’ oncoming vehicle. Mr. Dakmak, who was 83 years old at the time of the accident, was paralyzed from the waist down as a result of the accident. While hospitalized for his injuries after the 1 ¡¡accident, Mr. Dakmak was diagnosed with hepatocellular carcinoma, a type of liver cancer. Mr. Dakmak died on April 30, 2008.

Just prior to his death, Mr. Dakmak filed suit for damages arising from the accident, naming Officer Tibbetts and BRPD as defendants. Following his death, the suit was amended to substitute his sons, John Mark Dakmak, individually and as the succession representative of the Estate of Nelson Dakmak, Sr., William Joseph Dakmak, and Nelson Dakmak, Jr., as plaintiffs. Additionally, the petition was amended to include an allegation that Mr. Dakmak’s death was caused by the accident and to assert a claim for - wrongful death.

After a jury trial, the jury rendered a verdict finding that Officer Tibbetts was negligent in causing the accident and that Mr. Dakmak was not negligent. The jury also found that Officer Tibbetts’ negligence caused Mr. Dakmak’s injuries, including his death. The jury awarded $1,000,000.00 for Mr. Dakmak’s injuries ánd $10,000.00 for each of his three sons’ wrongful death claims. Officer Tibbetts and BRPD filed a motion for JNOV, which was denied, and this appeal followed.

On appeal, BRPD assigns as error the jury’s apportionment of fault, its finding that Mr. Dakmak’s death was caused by the accident, the amount of damages awarded, and the trial court’s denial of JNOV. Plaintiffs answered the appeal, arguing that the $10,000.00 award to each of Mr. Dakmak’s grown children for his wrongful death was abusively low, that the court erred in refusing to allow testimony regarding Mr. Dakmak’s medical bills, and that the court erred in refusing to allow a proffer of certain uncertified medical bills.

| .DISCUSSION

Allocation of Fault

BRPD argues on appeal that some degree of fault should have been assigned to Mr. Dakmak because he failed to ascertain in advance that the way was clear before turning left in front of an oncoming vehicle. The allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 98-1613, p. 2 (La.3/2/99), 731 So.2d 197, 199. In apportioning fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Gibson v. State Through Dept, of Transp. and Development, 95-1418, p. 12 (La.App. 1 Cir. 4/4/96), 674 So.2d 996, 1005, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373-74 (citing Campbell v. Louisiana Dept, of Transp. and Development, 94-1052, p. 7 (La.1/17/95), 648 So.2d 898, 902). We re view a fact finder’s apportionment of fault under the manifest error-clearly wrong standard of review. Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610.

A left turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety. Duplantis v. Danos, 95-0545, p. 10 (La. App. 1 Cir. 12/15/95), 664 So.2d 1383,1389. A high degree of care is required of a left-turning motorist. A left-turning motorist involved in an accident is burdened with a presumption of liability, and the motorist must show that he is free of negligence. Id. at p. 10, 664 So.2d at 1390. An oncoming motorist has a right to assume that a left-turning motorist will yield the right-of-way. Anderson v. May, 01-1031, p. 5 (La.App. 5 Cir. 2/13/02), 812 So.2d 81, 85. Nevertheless, the favored driver can still be found negligent if his or her ^substandard conduct contributed to the cause of the accident. For instance, a motorist making a left turn at an intersection will be held free of negligence when the collision results because of the oncoming vehicle’s excessive speed which he could not reasonably anticipate. Id. Left-turning drivers will be held free of negligence if they have made the proper signal and commenced the turn upon a reasonable belief, after observing approaching traffic, that the turn would not unduly interfere with the progress of approaching traffic, or where the sole proximate cause of the accident was excessive speed, lack of lookout, or lack of control on the part of the approaching vehicle in failing to observe a reasonably-signaled left turn intent and continuing to approach without attempting to bring the vehicle under control. Id. at pp. 5-6, 812 So.2d at 85.

Officer Tibbetts testified that while on patrol on the night of the accident, he floored the accelerator of his police vehicle in an attempt to “catch up” to a suspicious vehicle. In doing so, he increased his speed to 92 miles per hour. Officer Tib-betts testified that he was not paying attention to his speed; he was just focused on his surroundings and keeping an eye on the tail lights of the suspect vehicle in front of him. As soon as he saw Mr. Dakmak’s vehicle begin to turn left in front of him, he veered towards the shoulder and braked, but was unable to avoid the collision. According to the black box data retrieved from the police vehicle, Officer Tibbetts let off the gas 3.5 seconds before the crash, but despite braking was still traveling 59 miles per hour when he struck Mr. Dakmak’s vehicle.

| (¡Officer Tibbetts testified that he did not turn on his police lights or siren while attempting to catch up to the suspicious vehicle because he believed he was only required to do so if he was “in pursuit” of a suspect. Despite the fact that it was dark at the time of the accident, he did not think that it was unsafe for him to be traveling at such a high rate of speed without flashing lights or sirens because the traffic was light at that time of night. However, he admitted at trial that he failed to take into account the possibility that an oncoming vehicle would make a left turn. Officer Tibbetts also testified that he had been involved in thirteen other accidents as a police officer, but had never received a citation or reprimand for any of them.

Although La. R.S. 32:24 provides that the driver of an emergency vehicle may exceed the speed limit when in pursuit of an actual or suspected violator of the law as long as he does not endanger life or property, this exception only applies when the vehicle is making use of audible and visual signals sufficient to warn motorists of its approach. Furthermore, La. R.S. 82:24 does not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons, nor does it protect the driver from the consequences of his reckless disregard for the safety of others. La. R.S. 32:24(D).

Plaintiffs’ expert accident reconstruc-tionist, James Lock, estimated that Officer Tibbetts’ vehicle was 585 feet away when Mr. Dakmak began his left turn. He explained that when it is dark outside, it is very difficult for a driver to determine how fast an approaching vehicle is traveling, and while there is an expectation that some drivers may be going 10 miles or so over the speed limit, there is no reasonable expectation that an oncoming vehicle will be traveling at almost twice the speed limit. Mr. Lock noted that even if | yOfficer Tibbetts had been going as fast as 70-80 miles per hour, Mr. Dakmak could have completed his turn safely and the crash could have been avoided. He concluded that without any type of warning from the oncoming vehicle, such as police lights, sirens, or flashing headlights, Mr. Dakmak was reasonably prudent in making a left turn based upon what he was able to observe at the time he began his turn.

Although BRPD offered the testimony of its own expert accident recon-struetionist that Mr. Dakmak could have avoided the accident- by slamming on the brakes once he realized how fast Officer Tibbetts was traveling, the jury is free to accept or reject in whole or in part any opinion expressed by an expert. The effect and weight to be given to expert testimony is within the jury’s broad discretion. The jury may accept or reject any expert’s view, even to the point of substituting its own common sense and judgment for that of an expert witness where, in the jury’s opinion, such substitution appears warranted by the evidence as a whole. This decision will not be disturbed on appeal absent a finding that the jury abused its broad discretion. Morgan v. State Farm Fire & Cas. Co., Inc., 07-0334, pp. 8-9 (La.App. 1 Cir. 11/2/07), 978 So.2d 941, 946.

In apportioning all fault to BRPD, the jury obviously concluded from the evidence before it that the sole proximate cause of the accident was Officer Tibbetts’ excessive speed, which could not have been reasonably anticipated by Mr. Dakmak. Based upon our review of the evidence before the jury, we do not find that the jury was clearly wrong in apportioning all fault in the accident to Officer Tibbetts. This assignment of error is without merit.

]£!ausation

BRPD next argues that the jury erred in finding that the accident caused Mr. Dakmak’s death. The burden is on the plaintiffs to prove, by a preponderance of the evidence, the existence of the claimed injuries and a causal connection between the injuries and the accident. See Yohn v. Brandon, 01-1896, p. 6 (La.App. 1 Cir. 9/27/02), 835 So.2d 580, 584, writ denied, 02-2592 (La.12/13/02), 831 So.2d 989. The test to determine if that burden has been met is whether the plaintiffs proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Id.

Generally, the effect and weight to be given to medical expert testimony is within the broad discretion of the fact finder. Yohn, 01-1896 at p. 7, 835 So.2d at 584. The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mut. Auto. Ins. Co., 10-1609, pp. 7-8 (La.App. 1 Cir. 5/6/11), 65 So.3d 213, 220, writ denied, 11-1084 (La.9/2/11), 68 So.3d 522.

Plaintiffs offered the testimony of Dr. Conrad de Los Santos, an expert in emergency medicine and family medicine, regarding the cause of Mr. Dakmak’s death. Dr. de Los Santos testified that although Mr. Dakmak suffered from a number of medical conditions prior to the accident, including diabetes, hypertension, and a history of prostate cancer (which was considered cured), none of those conditions were life-threatening. According to Dr. de Los. Santos, the main injury suffered by Mr. Dakmak in the accident, a severed spinal cord, has a high mortality rate: seventy percent of patients who suffer this type of injury die within the first twenty-[four9 hours. Furthermore, paraplegic patients typically develop processes that ultimately kill them, most frequently decubitus ulcers which become infected and lead to their death. This was the case with Mr. Dakmak; he developed a grapefruit-sized stage 3 decubitus ulcer on his sacrum, meaning that the ulcer had eaten through the skin, through the muscle, and down to the bone. Dr. de Los Santos concluded from his review of the medical records that Mr. Dakmak died from the injuries he sustained in the accident, specifically, the wounds on his body (the ulcers) as well as from complications from bleeding due to the blood thinners he was given after the accident.

BRPD alleged that the jury erred in finding that Mr. Dakmak’s death was caused by the accident because he was diagnosed with inoperable liver cancer based upon a biopsy performed shortly after his accident and because his death certificate lists “carcinomatosis” (widespread cancer) as his cause of death. However, Dr. Shannon Cooper, the East Baton Rouge Parish Coroner who prepared Mr. Dakmak’s death certificate, testified that when a patient dies while under hospice care (as Mr. Dakmak did), he receives the notice of death, which includes the cause of death, from the hospice nurse. He did not examine Mr. Dakmak or review his medical records in order to verify the cause of death provided to him by the hospice nurse; the sole information he used to prepare the death certificate was the death notice faxed to him by hospice which listed liver cancer and prostate cancer as the cause of death. Dr. Cooper also testified that if he had been aware of the fact that Mr. Dakmak had recently been involved in a motor vehicle accident which rendered him a paraplegic, that he had a stage 3 decubitus ulcer days before his death, that his prostate cancer was considered cured, or that an “eminent pathologist” disagreed with the liver cancer diagnosis, it would Imhave caused him to question the cause of death supplied by the hospice nurse.

Dr. de Los Santos disagreed with BRPD’s assertion that Mr. Dakmak died of liver cancer because other signs of liver cancer were absent: Mr. Dakmak’s liver enzymes were not elevated, there was no positive A.F.P. marker, his liver was not enlarged, he was not ascitic, and he was not jaundiced. However, Dr. de Los Santos testified that even if Mr. Dakmak did have liver cancer, the accident was the main and probably only factor in his death.

In further support of their assertion that Mr. Dakmak did not have liver cancer, plaintiffs offered the testimony of Dr. Nir-ag Jhala, an expert in pathology, cytopa-thology, and gastrointestinal tract pathology. Dr. Jhala testified that hepatocellular carcinoma is particularly difficult to diagnose from a liver biopsy slide, and falls within the specialty of GI tract pathology, an area in which he has both taught and worked for more than ten years. He conducted a blind review of the slides from Mr. Dakmak’s liver biopsy after his death, and although he did see the abnormal area on the slide, he concluded that it was highly unlikely that Mr. Dakmak had cancer. He explained that although liver cancer is among the range of differential diagnoses for a liver mass, there were several other findings which made this diagnosis less likely for Mr. Dakmak, and he was able to conclude, “[a]s certain as one can be in the field of medicine,” that Mr. Dak-mak did not have hepatocellular carcinoma.

Although BRPD presented expert testimony that conflicted with the conclusions of the plaintiffs’ experts, it is clear that the jury chose to accept the opinions of plaintiffs’ experts over those of BRPD’s experts. This choice is within the discretion of the trier of fact, and based on our review of |nthe record, we cannot say ⅝ was clearly wrong. This assignment of error is without merit.

Quantum

In their next assignment of error, BRPD argues that the awards for Mr. Dakmak’s injuries are excessive given the duration of his suffering and the evidence presented. The jury awarded $834,000.00 for Mr. Dakmak’s past physical pain and suffering, $333,000.00 for his past mental pain and suffering, and $333,000.00 for his loss of enjoyment of life. Mr. Dakmak lived less than three months from the date of the accident.

The factors to be considered in assessing quantum for pain and suffering are severity and duration. Thibodeaux v. USAA Cas. Ins. Co., 93-2238, p. 8 (La.App. 1 Cir. 11/10/94), 647 So.2d 351, 357. It is well settled that a judge or jury is given great discretion in its assessment of quantum, for both general and special damages. Guillory v. Lee, 09-0075, p. 14 (La.6/26/09), 16.So.3d 1104, 1116. Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact that is entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. As such, the role of an appellate court in reviewing an award of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id. Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award of general damages on review. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a 112clear abuse of the trier of fact’s much discretion. Thibodeaux, 93-2238 at p. 8 (La.App. 1 Cir. 11/10/94), 647 So.2d at 357. In reviewing an award of damages, an appellate court should not rely on a comparison of other awards in other cases to determine if a particular award is appropriate. A comparative analysis should be undertaken only after the appellate court has found an abuse of discretion. Id. at pp. 8-9, 647 So.2d at 357.

Mr. Dakmak’s back was broken in the accident, severing his spinal cord completely. He suffered T-8 paraplegia, meaning he was paralyzed from the umbilicus down. Additionally, he suffered a C-6 fracture, a left ankle fracture, lung contusions, and other non-life-threatening injuries. Due to his paralysis, Mr. Dakmak did not feel any pain from the ankle fracture or the surgery to repair it. However, the plaintiffs’ expert, Dr. de Los Santos, explained that the neck and back pain he endured would have been “excruciating.” Additionally, as a consequence of his paralysis, Mr. Dakmak developed a number of decubitus ulcers, the worst of which was a grapefruit-sized stage three ulcer on his sacrum with exposed bone. Mr. Dakmak was still experiencing neck pain shortly before his death and was on pain medication for his injuries up until the time of his death.

By all accounts, Mr. Dakmak enjoyed an active social life up until the time of his accident. He lived independently, drove himself around, dined in restaurants, and visited friends frequently. Immediately after the accident, Mr. Dakmak was hopeful that he could recover; however, once he was told that he would never walk again, he became acutely depressed and refused further medical intervention. Dr. Roy Ka-dair, who had been Mr. Dakmak’s primary care physician since 1987, testified that when he told Mr. Dakmak that he would not be able to walk again, Mr. Dakmak put a pillow over his head and refused to talk any more that day and afterwards just seemed toj^give up. ■ John Mark Dakmak testified that prior to the accident, his father would call him weekly, but once he learned he would not walk again, his father seemed to give up and only called him a couple of times from the nursing home before his death. Mr. Dakmak was never able to return to his home after the accident.

Given the evidence before the jury regarding the excruciating pain Mr. Dak-mak’s injuries caused and the impact on his life, we do not find that the awards constitute an abuse of discretion. This assignment of error .is without merit.

Statutory Cap

BRPD also appeals the trial court’s denial of its motion for JNOV based on the fact that the general damages award exceeds the statutory cap. BRPD argues that the award must be reduced to $500,000.00 in accordance with La. R.S. 13:5106(B), which provides, in pertinent part:

(1) The total liability of the state and political subdivisions for all damages for personal injury to any one person, including all claims and derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not exceed five hundred thousand dollars, regardless of the number of suits filed or claims made for the personal injury to that person.
(2) The total liability of the state and political subdivisions for all damages for wrongful death of any one person, including all claims and derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars, regardless of the number of suits filed or claims made for the wrongful death of that person.

The plaintiffs were awarded $1,000,000.00 for personal injuries in the survival action, and $10,000.00 each for the wrongful death of their father. This court has interpreted La. R.S. 13:5106(B) to provide one $500,000.00 cap on personal injury damages (including survival actions for those | upersonal injury damages) and one $500,000.00 cap for wrongful death damages. O’Connor v. Litchfield, 03-0397, p. 18 (La.App. 1 Cir. 12/31/03), 864 So.2d 234, 246, writ not considered, 04-0655 (La.5/7/04), 872 So.2d 1069. Therefore, the trial court judgment must be amended to reduce the $1,000,000.00 judgment to plaintiffs for Mr. Dakmak’s personal injuries to $500,000.00.

Wrongful Death Award

John Mark, William, and Nelson Dak-mak, Jr. answered the appeal, arguing that the jury’s award of $10,000.00 to each of them for their father’s wrongful death constituted an abuse of discretion.

Wrongful death claims are meant to compensate the survivors designated by La. C.C. art. 2315.2 for their own injuries arising from the loss of the decedent. The elements of an award for wrongful death include loss of love, affection, companionship, and support, as well as funeral expenses. Maldonado v. Kiewit Louisiana Co., 12-1868, p. 22 (La.App. 1 Cir. 5/30/14), 152 So.3d 909, 927, 2014 WL 2450990. The discretion to award general damages vested in the trier of fact is vast. See La. C.C. art. 2324.1. Only when the award is “in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances,” should an appellate court increase or reduce the award. Youn, 623 So.2d at 1260-61 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Although each of Mr. Dakmak’s sons testified as to the close relationship he enjoyed with his father prior to the accident and how the accident and his death affected him, there was also evidence presented to suggest that they did not have such a close relationship with their father. William and John Mark had lived in Houston, Texas for over twenty years, |1sand John Mark testified that he only saw his father about five times a year, typically on holidays and for weddings and funerals. Nelson, Jr. lived four blocks away from his father in Baton Rouge and drove past his house several times a day, but he did not see him every week. The sons testified that their father would call them on the phone frequently.

Francis Fair, who was a close friend of Mr. Dakmak since 1959 and who saw him frequently up until his death, described the relationship between Mr. Dakmak and his sons as “distant” and testified that Mr. Dakmak was “frequently upset because he didn’t have the closeness that he wanted to have with them. Like they didn’t have time for him.” Ms. Fair recalled a time when Mr. Dakmak was considering purchasing a house next door to his son Nelson in Baton Rouge and he became upset because his son and daughter-in-law did not want him living that close to them.

When Mr. Dakmak was hospitalized following the accident, John Mark and William waited several days before coming to Louisiana to see their father. William testified that he was told about the accident by Nelson, Jr. on the Saturday night it happened, but Sunday was the Super Bowl and he did not realize how severe his father’s injuries were, so he did not go to Louisiana immediately. John Mark testified that he waited until Monday to drive to Louisiana, and returned to Houston on Monday evening after seeing his father. When Mr. Dakmak was readmitted to the hospital from the nursing home shortly before his death, the medical records state that family could not be reached initially and “aggressive attempts” were required to locate them.

Considering the evidence before the jury, we do not find that the jury abused its discretion in awarding Mr. Dakmak’s sons $10,000.00 each for the loss of their father. This assignment of error is without merit.

11 (Medical Expenses

Plaintiffs allege on appeal that the trial court erred in excluding testimony by John Mark regarding his father’s medical expenses. Rather than introducing certified copies of Mr. Dakmak’s medical bills at trial, plaintiffs attempted to have John Mark read from a handwritten list he prepared of his father’s medical and funeral expenses. BRPD objected to the testimony, and the court sustained the objection on the ground that plaintiffs did not lay the proper foundation for the witness to testify as to the amount of the bills. Plaintiffs did not attempt to lay a foundation for the testimony, but simply proffered the handwritten list prepared by John Mark at the close of trial. Plaintiffs put William on the stand and attempted to have him read from uncertified copies of the medical bills. BRPD’s attorney again objected on the grounds that the bills were not certified and were provided to her after the discovery deadline, and because the bills themselves were inadmissible, it was improper for a witness to testify as to their contents. Plaintiffs’ attorney explained to the court that he did not want to introduce the medical bills into evidence; he just wanted testimony as to their contents because he prayed for medical expenses in his petition. The court ruled that because there was no mention of the medical expenses in the pretrial order and the bills were not turned over to BRPD prior to the discovery deadline, the testimony would not be allowed. At the close of trial, plaintiffs attempted to proffer the uncertified medical bills, but the court refused the proffer because the plaintiffs never attempted to offer the bills into evidence during the trial.

A trial court has discretion in conducting a trial in an orderly, expeditious manner, and to control the proceedings so that justice is done. La. C.C.P. art. 1631(A). This discretion includes the admissibility of a |]7witness’s testimony. Pipeline Tech. VI, LLC v. Ristroph, 07-1210, p. 10 (La.App. 1 Cir. 5/2/08); 991 So.2d 1, 7, writ denied, 08-1676 (La.10/24/08); 992 So.2d 1037.

Pursuant to La. R.S. 13:3714(A), certified medical bills that are submitted to a court “shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills ... [are] sought to be used may summon and examine those making the original of the bills ... as witnesses under cross-examination.”

Plaintiffs argue.on appeal that in Webster v. Ballard, 05-2247 (La.App. 1 Cir. 3/2/07), 961 So.2d 13, this court affirmed a trial court’s ruling allowing a medical expense recapitulation to be admitted into evidence to prove the cost of treatment. However, in Webster, this court noted that the trial court’s decision to admit the evidence was ultimately a matter of the court’s discretion, and before the recapitulation was admitted into evidence, the plaintiffs established a proper foundation for admitting the bills into evidence by submitting the medical bills to prove the cost of treatment and testifying as to the treatment based on their own personal knowledge. Furthermore, the defendants were given the opportunity to cross-examine the plaintiffs. Id. at p. 6-7, 961 So.2d at 17.

In the instant case, John Mark testified that his involvement in his father’s treatment included choosing certain facilities. No additional foundation was laid for the testimony before the plaintiffs’ attorney asked him to read from his list of medical expenses. When the trial court sustained BRPD’s objection on the ground that a proper foundation had not been laid for this testimony, plaintiffs’ attorney made no attempt to lay a proper foundation for the testimony and simply proffered the document. Under 11Rthese facts, we cannot say that the trial court abused its discretion in refusing to allow the testimony. This assignment of error is without merit.

Plaintiffs next argue that the trial court erred in refusing to accept their proffer of the uncertified medical bills. At the close of the trial, plaintiffs attempted to proffer Mr. Dakmak’s medical bills. The trial court refused to accept the proffer because the plaintiffs never attempted to introduce the bills at trial. In support of their argument that this was an abuse of the trial court’s discretion, plaintiffs cite La. C.C.P. art. 1636, which provides that where the court rules against the admissibility of any evidence, it shall permit the party offering it to make a complete record thereof or to make a statement setting forth the nature of the evidence. However, a review of the trial transcript reveals that the plaintiffs did not attempt to offer the uncertified medical bills into evidence; in fact, the plaintiffs’ attorney specifically told the court that he was not attempting to put the bills themselves in evidence. As such, the court did not err in refusing the proffer. This assignment of error is without merit.

DECREE

For the reasons set forth above, we amend the trial court judgment to reduce the award in the survival action from $1,000,000.00 to $500,000.00 in accordance with La. R.S. 13:5106. As amended, the trial court judgment is affirmed in its entirety. Costs of this appeal in the amount of $4,829.50 are assessed to defendant, Baton Rouge Police Department.

AMENDED AND AFFIRMED AS AMENDED.

      . The posted speed limit on this part of Airline Highway was 50 miles per hour.

      . Officer Tibbetts did not recall his speed on the night of the accident or even whether he was exceeding the 50 miles per hour speed limit. However, he did not dispute the data recovered from his vehicle's black box which showed that he was traveling 92 miles per hour with the accelerator floored.

      . Officer Tibbetts did not recall whether Mr. Dakmak's left turn signal was on.


text:
    Nelson DAKMAK, Sr. v. BATON ROUGE CITY POLICE DEPARTMENT.
    No. 2012 CA 1850.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 2014.

      Mary Roper, Veronica Jones, Gwendolyn K. Brown, Baton Rouge, Louisiana, for Defendants/Appellants City of Baton Rouge and Stephen C. Tibbetts.
    Charles V. Musso, Jr., Kendrick J. Gui-dry, Michael J. Williamson, Lake Charles, Louisiana, for Plaintiffs/Appellees John Mark Dakmak, Individually, and as the succession representative of the Estate of Nelson Dakmak, Sr., William Joseph Dak-mak, and Nelson Joseph Dakmak, Jr.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

|2In this case, the defendants appeal a judgment awarding expert witness fees and deposition transcript costs after trial. For the reasons set forth herein, we reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This suit arises from an automobile accident which occurred on February 2, 2008, between Nelson Dakmak, Sr. and Baton Rouge City Police Department (“BRPD”) Officer Stephen C. Tibbetts. Mr. Dakmak filed suit against BRPD and Officer Tib-betts for his injuries, and upon his death, his children were substituted as plaintiffs and amended the petition to include allegations that his death was caused by the accident. After a September 23, 2011 jury verdict in favor of the plaintiffs, which was appealed separately in docket number 2012-CA-1468, the plaintiffs filed a Motion to Set Expert Witness Fees and Costs on October 12, 2011.

On March 5, 2012, plaintiffs filed a notice of their intention to take a deposition upon written questions of their trial expert, James Lock. The notice stated that the deposition would take place on March 10, 2012, at Mr. Lock’s office in College Station, Texas. On March 6, 2012, plaintiffs filed a notice of their intention to take Dr. Conrad de Los Santos’s deposition on written questions on March 14, 2012, at Dr. de Los Santos’s office in Mountain Brook, Alabama. In neither instance did plaintiffs file a motion for leave of court to take post-trial depositions.

A hearing on the plaintiffs’ motion to set expert witness fees and costs was held on July 30, 2012, at which the plaintiffs introduced the post-trial depositions upon written questions of Mr. Lock and Dr. de Los Santos, along with the experts’ invoices. The depositions were admitted into evidence over BRPD’s objection. There was no testimony at the hearing, | smerely argument of counsel, and at the conclusion of the hearing, the trial court granted plaintiffs’ request to have the full amount of the experts’ invoices ($48,856.68 for Dr. de Los Santos and $29,346.96 for Mr. Lock) taxed as costs. The trial court further ordered that the deposition transcript fees for Dr. Hartón, Dr. Stromeyer, Dr. Corsten, Dr. Kadair, and Dr. Jhala be taxed as court costs.

BRPD appealed, asserting that Mr. Lock’s and Dr. de Los Santos’s expert witness fees were excessive and unsupported by the evidence.

DISCUSSION

Pursuant to La. C.C.P. art. 1920, La. R.S. 13:4533, and La. R.S. 13:3666, the trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Bourgeois v. Heritage Manor of Houma, 96-0135, p. 4 (La.App. 1 Cir. 2/14/97); 691 So.2d 703, 706. According to La. C.C.P. art. 1920, costs shall be paid by the party cast and may be taxed by a rule to show cause, unless the judgment provides otherwise. Although article 1920 does not specify the costs which may be taxed, La. R.S. 13:4533 provides:

The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

The general rule regarding compensation of expert witnesses is set forth in La. R.S. 13:3666:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
|4B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party east in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

Factors to be considered by the trial court in setting an expert witness fee include the time spent testifying, time spent in preparatory work' for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Bourgeois, 96-0135 at p. 7; 691 So.2d at 708. Additional considerations include the helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. Although a party can have taxed as costs the reasonable cost of time spent by the expert in gathering facts necessary for his testimony, he may not include the time spent in consultation which only assists the attorney in preparation for the litigation. Id. at p. 7; 691 So.2d at 708-09. Most importantly, expert witnesses are entitled only to reasonable compensation. In assessing expert witness fees, the trial court is not bound by agreements between an expert witness and the party calling him concerning fees, the expert’s statements concerning his charges, nor the actual fees paid. In fact, those facts should not be considered by courts when determining fees. Boseman v. Orleans Parish Sch. Bd., 98-1415, pp. 9-10 (La.App. 4 Cir. 1/6/99); 727-So.2d 1194, 1199, writ denied, 99-0390 (La.4/1/99); 742 So.2d 554. However, the trial [ r,court may award the full amount charged by the expert if the amount is reasonable in light of the many factors considered in fixing expert witness fees. Bourgeois, 96-0135 at p. 7; 691 So.2d at 708.

BRPD argues on appeal that the plaintiffs failed to submit proper proof of their request for expert witness fees at the La. R.S. 13:3666(B)(2) hearing, and therefore the court erred in taxing the entire amount of the experts’ invoices as costs.

In Wampold v. Fisher, 2001-0808 (La.App. 1 Cir. 6/26/02); 837 So.2d 638, this trial court explained what evidence must be produced by a litigant on a contradictory rule to fix and tax expert witness fees under La. R.S. 13:3666(B)(2):

A trial court judge may fix an expert witness fee solely on the basis of what the court has observed or experienced concerning the expert’s time and testimony in' the courtroom or in deposition under LSA-R.S. 13:8666 B(l).... If a rule under LSA-R.S. 13:3666 B(2) seeks to set the value on the time the expert witness was before the court, that value may be determined by the court on the basis of its observation of and experience with the expert witness at trial, without further proof. However, if the rule seeks to value the total time employed by the expert, for example, time gathering facts necessary for his testimony, time spent away from regular duties while waiting to testify, or if the party seeks a fee outside of that normally charged by similar experts in that field, then the plaintiff in rule must prove by competent evidence, what service and expertise the expert rendered in addition to that observed by the trial court. Neither B(l) nor B(2) allows the trial court to value the expert’s services performed away from its hearing and observation without competent and admissible evidence.

Wampold, 2001Á)808 at pp. 2-3; 837 So.2d at 640. (Citations omitted).

Where a party seeks to base an expert’s fee on out-of-court work, the law requires a contradictory and full hearing, with the burden of proving the reasonable value of the expert’s out-of-court work being on the plaintiff-in-rule. Northwest Ins. Co. v. Borg-Wamer Corp., 501 So.2d 1063, 1066 (La.App. 2 Cir.1987). The assertions of an attorney and the expert via the | ^submitted bill, even in conjunction with an expert’s affidavit attesting to the correctness and truth of the bill, do not support an award for the total time of an expert. The expert must testify at the trial of the rule and be subject to cross-examination, unless the parties stipulate to the specifics and costs of the out-of-court work. Wingfield v. State ex rel. Dept, of Transp. and Development, 2003-1740, p. 7 (La.App. 1 Cir. 5/14/04); 879 So.2d 766, 770, citing Wampold, 2001-0808 at p. 3; 837 So.2d at 640. Although testimony as to the time rendered and the costs of services is required, the trial court is not bound by agreements between a party and the expert witness. Wampold, 2001-0808 at p. 3; 837 So.2d at 640.

The burden of proving the value of Mr. Lock’s and Dr. de Los Santos’s out-of-court services was on the plaintiffs. Although plaintiffs submitted the experts’ invoices at the hearing, the court is not bound by them, and they are insufficient to establish the value of the experts’ services. At the hearing on the plaintiffs’ rule, BRPD’s counsel informed the court that it was contesting á number of items on Mr. Lock’s and Dr. de Los Santos’s invoices. When asked by the trial court about Dr. de Los Santos’s invoices, the plaintiffs’ attorney simply said, “that’s his bill,” and offered the experts’ depositions on written questions in support of their request for fees. No further evidence was offered.

BRPD’s attorney objected to the introduction of the depositions on the grounds that plaintiffs did not seek leave of court to take the post-trial depositions. Louisiana Code of Civil Procedure article 1433, which governs post-trial depositions, provides in pertinent part:

A. If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further ¡ 7proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show:
(1) The names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each.
(2) The reasons for perpetuating then-testimony.
B. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for in Articles 1461 through 1465, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this Chapter for depositions taken in actions pending in the court.

A written order granting leave of court is required in order to take a post-trial deposition. See Welbom v. Ashy Enterprises, Inc., 504 So.2d 120, 122-23 (La.App. 2 Cir.1987). Louisiana Code of Civil Procedure article 1433(B) provides for use of post-trial depositions in pending actions only if the trial court finds that the “perpetuation of testimony is proper” and issues an order granting leave to take the deposition. Absent such an order, the depositions should not have been admitted at the hearing on the rule to tax costs.

Furthermore, the experts’ depositions were insufficient to carry the plaintiffs’ burden of proof as to the value of the experts’ out-of-court services. Both experts were asked at the deposition to identify their invoices, whether the total on their invoices was correct, and whether their invoices represented services rendered in connection with the underlying lawsuit. They were also asked whether their charges were “reasonable and customary” for the work performed and expenses incurred. However, since the plaintiffs sought fees for services rendered by the experts outside of court and in preparation for trial, their burden of proof on the rule required Rthem to present particular evidence from the experts, in a manner subject to cross-examination, regarding the specific services provided and the value of the out-of-court work. Thus, the evidence offered by plaintiffs at the rule does not meet the requirements of the jurisprudence. Without more direct evidence on the specific work performed by the experts out-of-court and the value of the out-of-court claims, the trial court had no basis to determine the reasonableness of those claims. As such, the trial court erred in awarding the entire amount of the experts’ invoices. We reverse that portion of the judgment awarding the entire amount of Mr. Lock’s and Dr. de Los Santos’s invoices and remand in order for the court to determine the value of the experts’ out-of-court services in accordance with the law.

CONCLUSION

For the reasons set forth herein, the portion of the September 4, 2012 judgment awarding expert witness fees for James Lock and Dr. Conrad de Los Santos is reversed and remanded to the trial court for further proceedings in accordance with this opinion. The remainder of the judgment awarding deposition transcript fees is affirmed. Costs of this appeal are assessed to plaintiffs.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

      . Furthermore, under La. C.C.P. art.2088, which specifies those matters over which a trial court retains jurisdiction once a judgment has been appealed, the trial court has jurisdiction in the case over those matters not reviewable under the appeal, including the right to set and tax costs and expert witness fees.