author: COX, J.

text:
    STATE of Louisiana, Appellee v. Nathaniel Allen MINGO, Appellant
    No. 51,647-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017.
    LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel for Appellant
    NATHANIEL A. MINGO, Pro Se
    J. SCHUYLER MARVIN, District Attorney, JOHN M. LAWRENCE, ANDREW C. JACOBS, Assistant District Attorneys, Counsel for Appellee
    Before DREW, STONE, and COX, JJ.
   COX, J.

The defendant, Nathaniel Allen Mingo ("Mingo"), was charged with second degree murder, in violation of La. R.S. 14:30.1, for the March 15, 2015, shooting of his girlfriend, Amanda Collins ("Collins"). Mingo filed a notice of intent to present a defense of intoxication pursuant to La. R.S. 14:15(2). The jury was instructed on the law of this defense, but ultimately found Mingo guilty as charged. A pro se motion for new trial was denied, and Mingo was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Mingo now appeals. For the following reasons, we affirm his conviction and sentence.

FACTS

On March 14, 2015, Mingo and Collins were in Center, Texas, to attend a wedding. However, the couple chose not to attend the wedding and returned to Shreveport, where they went to the El Dorado Casino. Surveillance video of the casino's parking garage shows the couple entered the garage in a red Ford pickup truck at approximately 11:30 p.m. The couple then entered the casino and do not appear on the video again until 3:26 a.m. on March 15, 2015.

At 3:37 a.m., the video shows Mingo and Collins engaged in a verbal altercation in the elevator. Mingo can be seen hitting Collins in the face prior to this altercation, as shown by the video. Two minutes later, Collins gets into an elevator alone and appears to be crying. She appears intoxicated.

At 4:28 a.m., the couple are seen getting into a white vehicle with two individuals. They are next seen getting out of the vehicle and into the red truck, which is shown exiting the garage at 4:33 a.m. The events that transpired upon leaving the casino were provided to the police by Mingo following his arrest.

Mingo told officers that he and Collins had eaten dinner and been to a bar shooting tequila that night. He also claimed to have taken two Xanax pills provided to him by Collins. He insisted he did not remember the details of the shooting, but maintained it was an accident. Mingo told officers he and Collins were driving to a hotel by Louisiana Downs and were talking about the fact that several people owed him money for drugs. Mingo stated he was "joking" about what he was going to do to those people to get his money, when he asked Collins if "there was one in the chamber" of his 9mm pistol. According to Mingo, she said there was not. Mingo then picked up the gun and pointed it at Collins, saying "this is what I'm gonna do" to people who owed him money. Mingo then pulled the trigger, shooting Collins in the left side of her neck and blowing out the passenger's side backseat window.

After shooting Collins, Mingo drove to his grandmother's home and told his grandmother and aunt what he had done. Mingo stated he was told to leave the property because he had killed someone. He then claimed he went to his uncle's home near Goathill Road in Bossier Parish, where he drove into a field and the truck became stuck. At that point, Mingo stated he called someone to come get him and take him to the hotel at Louisiana Downs. Mingo admitted returning to the field at some point that morning, seeing the police present, and leaving.

When the truck was found by the police, Collins was deceased in the front seat, and there were a large barrel and chainsaw in the bed of the truck. The backseat of the truck was packed with the couple's belongings, and Collins' purse was also in the truck.

When Mingo was located by the police, he had been driving a white sedan in which two boxes of large trash bags were found with a Dollar Store receipt from the early morning hours of March 15, 2015. In his statement, Mingo claimed the barrel and chainsaw were already in his truck, and the trash bags were for his lawn business. He also told officers that the gun belonged to Collins. He further claimed he did not know much about guns and was not a violent person. When questioned about his actions after shooting Collins, Mingo stated he was scared and did not know what to do because he had never done anything like this before and could not believe he had shot and killed her. Finally, Mingo stated he only takes Xanax and smokes marijuana, but does not do drugs because it "alters people's minds."

At trial, Danielle Arrindell, a woman who was on the elevator at the El Dorado Casino with the couple, testified that Mingo pushed Collins, and the two seemed to be arguing. She stated that "after he pushed her he said something about being a gangster... he showed himself to the rest of us in the elevator." Arrindell described Mingo as "puffing his chest out, turning around to make sure we were all looking at his face." She did not recall Collins saying anything other than "baby, don't be that way." Arrindell testified that she was shaken up by Mingo's hostile behavior, but she did not notice any bruising on Collins' face.

Theodore Green, the driver of the white vehicle noted earlier, testified that he encountered the couple in the El Dorado parking garage. He stated that he offered to take the couple to find their vehicle in the garage. Mingo and Collins sat in the backseat. According to Green, Mingo was upset with Collins. He stated Mingo "was pretty intoxicated" and should not have been driving, but also stated Mingo knew what he was doing. Upon finding the truck, Mingo and Collins exited Green's vehicle, and Mingo told Green he "should just leave [Collins] with y'all."

Frank Peretti, an expert in forensic pathology, confirmed Collins was killed by a single, close-range gunshot wound to the neck. Photographs of Collins' neck and face, showing the entry wound and predeath bruising to her mouth area, were introduced as evidence. Dr. Peretti testified that Collins' blood alcohol content was .149 at the time of the autopsy, and the toxicology revealed she had recently ingested methamphetamine.

Sergeant Chad Madden of the Bossier Parish Sheriff's Office ("BPSO") testified that he responded to the scene where Mingo's truck was found. He described the scene and also stated he called Collins' former mother-in-law and spoke to her husband, who gave him Mingo's name. Mingo's videotaped interview was introduced and played for the jury after Madden's testimony.

Lieutenant Shannon Mack of the BPSO was dispatched to the scene and testified that she located Mingo the following morning by tracking his cellphone to the Holiday Inn Financial Plaza in Shreveport. She testified Mingo was taken into custody after a struggle. Mingo was in possession of a 9mm handgun, $11,236 in cash, Collins' I.D. card, and two cellphones. Lieutenant Mack further testified that a search of the Marriott hotel room by Louisiana Downs where Mingo had been staying produced a briefcase containing a "tap code magazine" and ammunition. The magazine was for a "7.62 round or AK47 rifle." The gun, photographs of the two boxes of trash bags, and the Dollar Store receipt were introduced into evidence.

Officer John Madjerick of the Shreveport Police Department's Crime Scene Investigations Unit testified that he responded to Financial Plaza in Shreveport where Mingo was apprehended. He stated that he located a handgun on the ground near where Mingo was first seen and a Crown Royal bag containing $12,400 on the ground near the gun. Detective Becky Fohl of the BPSO's Crime Scene Investigations Unit corroborated the findings and investigation of the scene where the truck was located.

Lieutenant Jonathon Jackson of the BPSO testified that he was in charge of the property room where the evidence in Mingo's case was stored. Lieutenant Jackson identified the handgun, along with items found in the white Charger, a white T-shirt with blood stains on the sleeve, the chainsaw and sharpening tool for the chainsaw, and a 9mm magazine and holster found under the driver's seat of the red truck. On cross-examination, he noted there were also three beer cans along with various pills and medications in the truck.

Clarence McCoy testified he saw Mingo the morning of the shooting. McCoy was staying at a Shreveport hotel with Marcus Monroe. He accompanied Monroe to Mingo's aunt's home on Goathill Road that morning. The two met Mingo in the driveway around 7:00 or 8:00 a.m. Mingo was driving a "burgundy Ford super duty truck." McCoy testified that Monroe got out of the vehicle and spoke to Mingo. McCoy remained in the vehicle, but stated he could hear some of the conversation. According to McCoy, Mingo "said I fucked up. He said-he asked Marcus where can he take the truck to and asked him about a chainsaw." McCoy stated he did not know what Mingo was talking about at the time or hear anything else that was said. He stated Mingo and Monroe prayed together and hugged.

McCoy and Monroe then went to Monroe's aunt's home about one half mile away. McCoy testified that Mingo arrived in a white Charger. He stated he spoke to Mingo, who had a black handgun, but could not recall what was said. McCoy testified that he then went home and walked to Four Corners store. While walking, he saw the officers in the field and recognized the "burgundy Ford super duty" truck as the one Mingo had been driving early that morning. McCoy stated that when he got to the store, he saw Mingo and another man drive up in a white pickup truck. Mingo offered to give McCoy a ride home, and McCoy accepted. McCoy testified that Mingo had blood on his shirt and hand that morning. He stated he did not call police because he was scared of Mingo. Further, he responded "no" when asked if he had any reason to believe Mingo was intoxicated. McCoy testified this was the last time he saw Mingo.

Bernadine Collins, who lives on Goathill Road, testified that Mingo drove the red truck to her home the morning of the murder, but she made him leave because the person with Mingo was dressed in all red indicating affiliation with a local gang.

The state next called Jacquelyn Maddox, the girlfriend of Mark Villareal. Maddox was staying the night at Villareal's home in Haughton when she and Villareal were awakened by a tapping on their window in the early morning hours of March 14, 2015. The man outside was dressed up, but appeared dirty. She did not see his vehicle. Villareal met the man at the front door. While Maddox could not hear the conversation, she stated she could hear sobbing. Maddox watched the man and Villareal walk to the shed and carport area. She then saw the dark red truck driven by the man with a "metal barrel" that looked like a deer feeder in the bed of the truck. As Mingo drove away, she noticed the back passenger side window was "down."

Carla White, a firearms examiner at the Northwest Louisiana Crime Lab, identified the handgun used to shoot Collins as a Springfield 9mm pistol. She explained it was unlikely that the gun could fire without a finger on the trigger pulling eight pounds of pressure. In other words, she opined that it was highly unlikely that the gun could be unintentionally or accidentally fired. White noted that the gun has a feature on the slide that indicates whether there is a bullet in the chamber. According to White, only if the slide alert was broken could the firing of the gun be accidental.

Michelle Vrana, DNA Section Supervisor at the Northwest Louisiana Crime Lab, testified that the blood on the white dress shirt and handkerchief belonging to Mingo was a mixture of Mingo's and Collins' blood. The beer can found in the cup holder of the truck revealed only Collins' DNA. Analysis of the 9mm handgun revealed several indicators that Mingo was a major contributor to the DNA found on the gun.

Mingo was found guilty as charged and sentenced to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence.

On appeal, Mingo sets forth three assignments of error. First, Mingo argues that he presented sufficient evidence of intoxication to preclude a finding of the requisite specific intent. Next, Mingo argues he was denied his right to self-representation. Finally, Mingo argues he was denied his voir dire rights.

DISCUSSION

Sufficiency of the Evidence/Intoxication

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Apodaca , 50,113 (La. App. 2 Cir. 9/30/15), 180 So.3d 465. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175.

The appellate court does not assess the credibility of the witnesses or reweigh evidence. State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 2015-2291 (La. 4/4/16), 190 So.3d 1203. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Randle , 49,952 (La. App. 2 Cir. 6/24/15), 166 So.3d 465 ; State v. Casaday , 49,679 (La. App. 2 Cir. 2/27/15), 162 So.3d 578, writ denied , 15-0607 (La. 2/5/16), 186 So.3d 1162.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175.

Second degree murder is defined in La. R.S. 14:30.1, which provides, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant's actions. State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So.3d 255. Specific intent to kill or inflict great bodily harm may be inferred from the extent and severity of the victim's injuries. State v. Murray , 49,418 (La. App. 2 Cir. 1/14/15), 161 So.3d 918, writ denied , 2015-0379 (La. 4/8/16), 191 So.3d 582.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome , 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied , 14-0990 (La. 1/16/15), 157 So.3d 1127. For a case resting essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Broome, supra.

Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Leone , 48,892 (La. App. 2 Cir. 5/15/14), 140 So.3d 793, 801, writ denied sub nom. State ex rel. Leone v. State , 2014-1337 (La. 4/10/15), 163 So.3d 804. Further, the discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. Id. Other circumstances which may support an inference in such cases are evidence of flight to avoid apprehension and a previous acrimonious relationship between the shooter and the victim. State v. Christopher, supra .

Voluntary intoxication will not excuse a crime, but is a defense to a specific intent offense if the circumstances demonstrate that intoxication precluded formation of the requisite intent. La. R.S. 14:15(2) ; State v. Mickelson , 12-2539 (La. 9/3/14), 149 So.3d 178, 183 ; State v. Apodaca, supra . The defendant has the burden of proving his intoxication defense. Thereafter, it falls to the state to negate that defense by showing beyond a reasonable doubt that specific intent was present, despite the defendant's alleged intoxication. State v. Apodaca, supra . Whether voluntary intoxication in a particular case is sufficient to preclude specific intent is a question to be resolved by the trier of fact. Id.

While it is clear that Mingo consumed alcohol and Xanax on the night of the crime, merely doing so is insufficient to meet the preponderance of the evidence burden required to prove the affirmative defense of intoxication. Contrary to Mingo's claim that his intoxication was so severe as to preclude the formation of specific intent, the evidence showed Mingo still had the ability to reason and make decisions.

Mingo's statement to the police that he had been shooting tequila and had taken two Xanax pills tends to support his intoxication. He told the officers that Xanax made him forget things. However, Green's testimony showed that Mingo knew what he was doing despite allegedly being intoxicated when he left the casino. Further, Monroe testified that he saw no reason to believe Mingo was intoxicated on the morning of the murder. Most importantly, however, were Mingo's actions in devising a plan to get a barrel and chainsaw, as well as his willingness to tell his grandmother and others what he had done. These actions indicate his ability to reason and make decisions.

Mingo's actions were not those of a person who was so highly intoxicated that he did not know what he was doing or what had happened. Instead, the evidence showed that Mingo was upset with Collins, and the two were arguing prior to the shooting. The autopsy, photographs, and testimony established that there was bruising inflicted to Collins' lips before her death. Furthermore, Mingo was completely aware that he killed Collins and even devised a plan to dispose of her body, which was derailed when his truck became stuck in the field. Throughout his efforts to cover up the shooting, Mingo freely told others what he had done. The attempted cover-up is evidence of a guilty conscience.

Despite evidence of Collins' high blood alcohol content level, Mingo never provided any evidence at trial of his own intoxication. It should also be noted that Mingo did not stop, pull over, try to stop the bleeding, or attempt to administer CPR after shooting Collins. Instead, he kept driving. The evidence was thus sufficient to allow the jury to reject the defense of intoxication and find that the state negated that defense by proof beyond a reasonable doubt. Viewing the evidence as a whole in the light most favorable to the prosecution, the jury could have reasonably found the elements of second degree murder were proven beyond a reasonable doubt.

Right to Self-Representation

Minutes before jury selection began on November 14, 2016, Mingo repeatedly attempted to address the trial court and make oral pro se motions and arguments. The trial court admonished Mingo that he did not represent himself, but had two appointed attorneys as counsel. The trial court advised Mingo's defense counsel to "get your client under control" and advised Mingo that if he desired to have motions made, he should instruct his counsel and let counsel address the court. Mingo responded, "Well if that's the case, Your Honor, with all due respect I would like to withdraw from counsel and represent myself." Initially the motion was denied. However, following a bench conference, court reconvened and a Faretta hearing was held.

The trial court denied Mingo's motion for the following reasons: (1) the last-minute timing of the motion and the belief that it was a delay tactic; (2) Mingo's admitted mental problems, including his past diagnosis of bipolar disorder and his recent treatment for anxiety in jail; (3) Mingo's medication for anxiety was recently stopped; (4) Mingo's limited formal education of 10th grade and GED; and, (5) Mingo's inability to express a meaningful understanding of the charge of second degree murder. After the ruling, Mingo had to be removed from the courtroom and placed in belt restraints due to his disruptive behavior.

Mingo argues he was denied his right to self-representation and that his responses to questioning indicated his choice was intelligently and voluntarily made. He believes the assertion of his right was clear and unequivocal.

Amendments VI and XIV of the United States Constitution, as well as Louisiana Constitution Article I, § 13, guarantee the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ; State v. Carpenter , 390 So.2d 1296 (La. 1980) ; State v. Johnson , 50,234 (La. App. 2 Cir. 11/18/15), 182 So.3d 1039, writ denied , 15-2242 (La. 3/24/16), 190 So.3d 1190.

An accused has the right to choose between the right to counsel and the right to self-representation. Requests which vacillate between self-representation and representation by counsel are equivocal. State v. Strain , 585 So.2d 540 (La. 1991) ; State v. Johnson, supra.

The right to counsel may be waived, but the accused must know of the right and intentionally relinquish it. Faretta v. California , supra. A waiver of counsel, in order that an accused may enter into pro se representation, must be clear and unequivocal. Id. ; State v. Johnson, supra . In order to be valid, a waiver of the right to counsel by a defendant must be made knowingly, understandingly, and intelligently. State v. Conner , 49,351 (La. App. 2 Cir. 11/19/14), 152 So.3d 209. Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Faretta, supra , citing Adams v. United States , 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). Courts must indulge in every reasonable presumption against a waiver of counsel. Faretta, supra ; State v. Johnson, supra.

Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether the defendant has waived his right to counsel. State v. Carpenter, supra ; State v. Johnson, supra . The determination of whether a defendant knowingly and voluntarily waived his right to counsel depends on the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper , 381 So.2d 468 (La. 1980) ; State v. Conner, supra. A more thorough inquiry is required to allow a defendant to represent himself at a felony trial than is required to accept his uncounseled guilty plea to an uncomplicated misdemeanor. State v. Johnson, supra . In State v. Strain, supra , the Louisiana Supreme Court stated:

The judge, in accepting a waiver of counsel at trial, should advise the accused of the nature of the charges and the penalty range, should inquire into the accused's age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver.

A jury trial commences when the first prospective juror is called for examination. La. C. Cr. P. art. 761. A defendant who waits until after the commencement of trial to assert for the first time his right to represent himself, after having acquiesced in representation by an attorney through pretrial procedures and the institution of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interests overbalances the potential disruption of the proceeding already in progress. State v. Hegwood , 345 So.2d 1179 (La. 1977) ; State v. Johnson, supra.

Once the trial date has arrived, the question of withdrawal of counsel rests with the discretion of the trial court, and the court's ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. State v. Seiss , 428 So.2d 444, 447 (La. 1983) ; State v. Johnson, supra . Generally, a defendant's request to represent himself may be properly denied if the defendant makes such a request for the first time immediately prior to trial. State v. Hegwood, supra.

An inappropriate denial of the right to self-representation is not subject to harmless error analysis. Rather, it is a structural error that requires automatic reversal. McKaskle v. Wiggins , 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ; State v. Johnson, supra.

Mingo's assertion of his right to self-representation was made on the first day of trial, just minutes before the commencement of voir dire . The ruling on his motion was within the discretion of the trial court, and the motion was properly denied. In addition to the last-minute timing of the motion, the answers provided by Mingo during the Faretta hearing support the denial of his motion. Mingo admitted he experienced mental problems, including bipolar disorder and anxiety. He stated, "I'm having some issues as far as mental goes and me be able to proceed [sic ] things... I don't know what's happened and I'm not getting-I haven't been to the neurologist yet, but I have an appointment." Mingo also stated he had quit taking his anxiety medications the day before trial.

When asked about his understanding of the nature of the charge of second degree murder, Mingo explained:

Well second degree murder is-is basically defined as like if-if you had general intent or transfer intent in committing a crime or if you actually had any premed-well it's not premeditation, it's without the thought of premeditativeness I believe.

Mingo understood that the penalty for second degree murder was life imprisonment, without the benefit of probation, parole, or suspension of sentence.

The trial court provided thorough and thoughtful reasoning for denying Mingo's motion for self-representation. The ruling was not an abuse of discretion.

Denial of Voir Dire Rights

Throughout the proceedings, Mingo filed many pro se motions, some of which the trial court allowed him to argue and some of which the trial court ruled on. One motion for voir dire was filed on the day of trial. After questioning, it was determined that Mingo was seeking to question the prospective jurors himself in addition to, or possibly instead of, his counsel.

In light of the denial of Mingo's motion for self-representation, the trial court explained that Mingo was not the proper party to question the jurors. The trial court explained at length the process in which Mingo could consult with his counsel regarding his concerns about potential jurors, which his counsel would then address with the court. Accordingly, the trial court found the motion to be moot because Mingo was afforded his full voir dire rights under the Constitution.

Mingo presents little argument on this issue, but appears to advocate for individual voir dire with questioning of prospective jurors done outside the presence of the remaining jury venire. This argument is blended with his challenge to the denial of his motion to self-represent. In sum, there is no support based on the evidence or law for these arguments. Mingo was afforded his full voir dire rights, and there is no requirement for individual voir dire .

CONCLUSION

For the foregoing reasons, Mingo's conviction and sentence are affirmed. Mingo's assignments of error regarding his right to self-representation and denial of voir dire rights are without merit. There was sufficient evidence such that the jury unanimously found him guilty as charged.

AFFIRMED.

      Surveillance video of the truck entering the casino garage at 11:30 p.m. on March 14, 2015, and leaving the garage at 4:33 a.m. on March 15, 2015, show an empty truck bed.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


source: Caselaw Access Project

author: BLEICH, J. (Pro Tempore )

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Randy ANDERSON, Appellant
    No. 51,603-KA
    Court of Appeal of Louisiana, Second Circuit.
    September 27, 2017 Rehearing Denied November 9, 2017
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullilvan, Counsel for Appellant
    JAMES E. STEWART, SR. District Attorney, Counsel for Appellee
    JASON W. WALTMAN TRENEISHA J. HILL REBECCA ARMAND EDWARDS Assistant District Attorneys
    Before MOORE, STONE, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This criminal appeal arises from the First Judicial District Court, Caddo Parish, State of Louisiana. The defendant, Randy Anderson, was convicted of second degree murder and sentenced to life imprisonment at hard labor without benefits, pursuant to La. R.S. 14:30.1. This appeal by Anderson ensued, and for the following reasons, we affirm his conviction and sentence.

FACTS

On December 2, 2012, Timothy Anderson ("Timothy") was found dead in his mother's home at 3712 Dilg League, in Shreveport, Louisiana. He had been shot seven times: once to the top of the head, four times to the back, and twice to the abdomen. Shreveport police quickly suspected Timothy's brother, Randy Anderson ("Randy"), for the murder. The next day, Randy was apprehended by police after the car he was traveling in, which was owned by Sterling Ary, was stopped in Bossier City, Louisiana. Randy's guitar case was found in the backseat of the car. Inside the case, police found a 9mm handgun and a shirt with stains on it-suspected to be blood. Randy was arrested at that time.

The police investigation showed that Randy had purchased the gun several days before. Firearms testing confirmed that the shell casings found at the scene and the bullets recovered from Timothy's body were fired from the 9mm gun. Also, DNA analysis revealed that the blood on the shirt was consistent with Timothy's DNA. Randy was charged by a grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1.

Because Randy has paranoid schizophrenia, sanity evaluations were conducted, after which the trial court determined that Randy was not competent to proceed. He was placed in the Feliciana Forensic Facility. Thereafter, Randy was re-evaluated and three court-appointed doctors determined that he was competent to proceed and knew right from wrong at the time of the incident.

On November 16, 2016, following a three-day trial, the jury found Randy guilty as charged of second degree murder. The jury was polled, revealing a vote of 10-2. Randy filed a motion for post-verdict judgment of acquittal, arguing that the evidence was insufficient to support his conviction, which motion was denied. He then waived sentencing delays, and the trial court sentenced him to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This appeal ensued.

DISCUSSION

Sufficiency of the Evidence

Randy's appeal counsel brings one assignment of error on appeal, arguing that the evidence introduced by the state at trial to convict Randy of second degree murder was circumstantial in nature and not sufficient to negate every reasonable hypothesis of innocence. Randy contends that the evidence did not lead solely to the conclusion that he killed Timothy, and therefore, the state failed to prove he was guilty beyond a reasonable doubt. Specifically, Randy maintains there was no eyewitness to the shooting, and the circumstantial evidence did not exclude every reasonable hypothesis of innocence. Randy further argues that although he owned the gun, he is not the only person who could have fired it, and the shirt with blood on it could have ended up in Ary's car at any time. Finally, Randy submits he may have been trying to protect the real shooter, and it is possible that Ary shot Timothy. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Sullivan , 51,180 (La. App. 2 Cir. 02/15/17), 216 So.3d 175. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford , 2005-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Sullivan, supra .

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id .When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Lilly, supra ; State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 2012-2658 (La. 05/17/13), 117 So.3d 918.

Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1.

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Mickelson , 2012-2539 (La. 09/03/14), 149 So.3d 178 ; State v. Walker , 51,217 (La. App. 2 Cir. 05/17/17), 221 So.3d 951. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd , 48,914 (La. App. 2 Cir. 01/14/15), 161 So.3d 879, writ denied , 2015-0307 (La. 11/30/15), 184 So.3d 33, cert. denied , --- U.S. ----, 137 S.Ct. 227, 196 L.Ed.2d 175 (2016). The determination of whether the requisite intent is present is a question for the trier of fact. Id. ; State v. Walker, supra .

At trial, the jury was presented with the following testimony and evidence. James Higdon, the manager of Lorant's Sporting Goods in Shreveport, testified that on November 1, 2012, Randy came into the store, picked out a Masterpiece Arms 9mm semi-automatic handgun, and completed the required forms to purchase the gun. On November 30, 2012, Randy completed the purchase and picked up the gun.

Martha Marshall, Randy's ex-girlfriend and the mother of his child, testified that Randy called her on December 2, 2012, the day of the murder, to come pick up money for child support. Martha went to Randy's house on Dilg League that afternoon, around 2:00 or 3:00 p.m. Randy met Martha in the driveway, gave her money and told her he had "found a way out," but did not explain what he meant. Martha testified that Randy's mother, Corrine Anderson, arrived at the house while she was there. After Martha left the house, Randy called her for a ride, but she was with a friend and refused. Martha testified that he continued to call her, about 16 times, but she only answered twice, and Randy asked for her sister's number. Later that night, Martha saw on the news that Timothy had been killed.

Corrine Anderson testified that Randy is her adopted son and Timothy is her biological son. Corrine's daughter, Lashondra, lives next door to her, and Timothy lived next door to her on the other side. Corrine testified that in December 2012, Randy and another son, Paul Anderson ("Paul"), lived with her at 3712 Dilg League. Paul has mental and physical disabilities and Lashondra and Timothy helped Corrine care for Paul.

At the trial, Corrine related that on the day of the murder she went to church and then returned home. At that time, Randy was at the house and Paul had just returned from Lashondra's house. Corrine testified that Randy was pacing and kept going out the front door. Corrine looked out and saw Martha next to a white car in the driveway. When Corrine went outside, Martha jumped in the car and left. Randy came inside, seemingly agitated, and mumbled to himself that Martha was coming for money. Corrine testified that he then left the house to go cash his check. A short time thereafter, between 2:30 and 3:00 p.m., Timothy came to Corrine's house after getting off work. Timothy and Paul were watching football in the den, and Timothy asked Corrine to go get a Christmas tree. Corrine left, and when she returned with the tree, she entered from a side door by the den. She noticed that Timothy's cell phone screen was broken, but she did not see Timothy or Paul. In the kitchen, Corrine saw that boxes of food had been knocked off the baker's rack, the food she had prepared for Timothy had not been eaten, and the tablecloth on the kitchen table was missing. She began looking for Timothy and finally went into Randy's bedroom. Corrine recalled she saw the missing tablecloth on the floor by the bed. The tablecloth was piled like a pyramid, the same way Randy had a habit of piling up his clothes. Corrine picked up the tablecloth and saw Timothy on the floor; he was unresponsive and had a bullet hole in his head.

Paul also testified and stated he was watching football with Timothy on the day Timothy was murdered. Paul noted that Randy took his phone, and he never got it back. Paul related hearing a noise that sounded like a gunshot, and he testified after hearing the noise he went to his sister's house, but did not tell her anything. Paul also stated that he saw Randy in the bedroom after he heard the noise, but he did not see Randy shoot Timothy, nor did he see Randy with a gun. According to Paul's account, Randy then left the house to go to the store. However, Paul also stated that Randy was at the house when the police arrived. Paul was at his sister's house when his mother returned to the house.

Dr. Long Jin, an expert in forensic pathology, performed the autopsy on Timothy. Dr. Jin testified that Timothy had seven gunshot wounds : one to the top of his head, four to his back, and two to his abdomen. The trajectory of the wounds to his head and back indicated that Timothy was on the ground when those shots were fired. Dr. Jin recovered six bullets from Timothy's body.

Officer Sean Hinderberger was a homicide investigator for the Shreveport Police Department when Timothy was murdered. Officer Hinderberger testified that he responded to the scene at Dilg League, and upon arriving, everything looked to be in place-there was no evidence of a struggle. At the scene, Ofc. Hinderberger interviewed Corrine, Lashondra, and Paul, but noted that Paul was "obviously mentally challenged" and could not give much information. Officer Hinderberger testified that all of the information he obtained pointed to Randy as the suspect. The next day, Ofc. Hinderberger interviewed Martha and her sister, Raqual, and determined that Randy was likely with his friend, Sterling Ary. According to Ofc. Hinderberger, Ary and Randy were stopped by police in Bossier City.

Ary testified he was a close friend of Randy. On December 2, 2012, Ary was working at a local casino when Randy called him around 4:00 p.m. asking for a ride. Ary left work, and went to Randy's house on Dilg League. Randy came outside and told Ary that he needed a ride to a "state building," and Ary agreed to take him. Randy went back inside the house and returned with a guitar case, which he put in the trunk of Ary's car. Ary testified that they drove to Marshall, Texas, but then realized that state buildings are closed on Sundays. They drove back to Shreveport, went to Ary's house for a while, and then drove around looking for a shelter for Randy to stay. At some point, they drove by Dilg League and saw police cars at Randy's house; Randy asserted he did not know why the police were there, and he told Ary to keep going. Ary eventually found a friend who agreed to let them sleep at her apartment that night. The next morning, before the friend told them to leave, Ary saw a story on the news that someone had been shot at Randy's house.

Ary testified that they drove to a parking garage at his place of employment and hung out for a while. They were trying to find a place for Randy to stay-he told Ary he wanted to go to Beaumont, Texas. In the meantime, Ary got a call from a friend who asked if he was still with Randy. The friend told Ary to drop Randy off, but would not explain why. Because Randy denied knowing what was going on, Ary disregarded the advice from the caller. Another friend then called Ary and informed him that someone had been shot and the police were looking for Randy. Later that night, Ary and Randy went to Justin Quarter's house. Ary testified he told Quarter to call the police and tell them Ary and Randy would be driving around I-20 so they could stop him. When the police located them in Bossier City, Randy told Ary to "punch it," but Ary stopped the car, and Randy was arrested.

Officer Tracy Mendels, a crime scene investigator for the Shreveport Police Department, testified that she took photos and collected evidence at the crime scene on Dilg League. According to Ofc. Mendels, the victim was lying face down on the floor in a bedroom between two twin beds. She noticed blood spatter on the dresser and the floor; a tablecloth soaked with blood, riddled with what appeared to be bullet holes; and, a black stocking cap with an apparent bullet hole, lying on the floor next to the victim. Five expended shell casings were found on the bed, the floor, and in the hallway. Officer Mendels testified that Corrine later found another shell casing in the kitchen, for a total of six shell casings found in the house.

Officer Mendels also took photos and collected evidence from Ary's vehicle. She testified that in the backseat of the car, there was a black guitar case with a 9mm gun sticking out of a pocket. The gun had a spot of suspected blood on it and a live round in the chamber, but the magazine, which was loaded with 10 bullets, was not seated in the gun. In the pocket with the gun, Ofc. Mendels found Randy's state identification card along with three expended shell casings. A shirt that appeared to have blood on it was inside the guitar case, along with a guitar. There was also an empty plastic gun box, labeled "Masterpiece Arms Defender" and a barrel extension in the backseat of the car. Officer Mendels testified she also recovered a cell phone which had blood all over it.

Greg Rudell, formerly a homicide detective for the Shreveport Police Department, testified that he was the lead detective on this case. Rudell interviewed Corrine at the scene and testified she told him that Randy, Paul, and Timothy were at the house when she left. Rudell recounted his interviews with Martha and Raqual, which eventually resulted in Randy being stopped in Bossier with Ary, who was not a suspect in the murder. Further, Rudell stated that the shell casings found in the guitar case in Ary's car were the same brand and caliber as the shell casings found in the house.

Chris Davis, a firearms examiner at the North Louisiana Crime Lab, examined the 9mm Masterpiece Arms gun, and all of the bullets and casings found in this case. Davis determined that all of the casings recovered from the scene and from Ary's car were fired from the gun belonging to Randy. Also, five of the bullets recovered from the victim's body were fired from the gun. The sixth bullet, which was damaged, was not sufficient for him to determine whether it was fired from the gun, but it did have the same class characteristics, meaning it was fired from a gun with the same number of lands and grooves.

Bill Duncan, an investigator with the Caddo Parish District Attorney's Office, testified that he collected a DNA sample from Randy and took it to the crime lab.

Monnie Michalik, a forensic DNA analyst at the North Louisiana Crime Lab, testified that she conducted DNA testing on a swab of blood from the gun, a swab from the grip of the gun, and a swab of blood from the shirt. The swab of blood from the gun contained insufficient DNA to produce a valid profile. Michalik obtained a partial DNA profile from the swab from the grip of the gun, which was consistent with Randy's DNA. Further, she testified that the swab of blood from the shirt was consistent with Timothy's DNA.

Randy did not testify, and the defense presented no evidence.

We find the evidence presented at trial was sufficient to support Randy's conviction for second degree murder. The fact that Timothy was shot seven times, including once to the top of the head, shows that the shooter had the specific intent to kill. Although circumstantial, the testimony and evidence was sufficient for the jury to conclude that Randy was the shooter.

The testimony established that Randy was at the Dilg League house at and around the time of the shooting. Although Corrine testified that Randy left the house before she left to go get a Christmas tree, Rudell testified that Corrine told him that Randy was at the house with Paul and Timothy when she left. Also, although Paul did not see the shooting, he testified that after he heard the gunshots, he saw Randy in the bedroom and then leave the house. Timothy's body was found in Randy's bedroom underneath the kitchen tablecloth, which was piled up in a pyramid, the unusual thing Randy usually did with his clothes.

Ary testified that when he picked Randy up from the house, he had his guitar case. Notably, Randy never returned to the house. When Randy was apprehended the next day, police found a 9mm gun, which he had purchased several days before, and a shirt with blood on it inside the guitar case. Ballistics testing showed that the shell casings found in the bedroom and the bullets recovered from Timothy's body were fired from Randy's 9mm gun. Further, Randy's DNA was found on the grip of the gun, and the blood on the shirt matched Timothy's DNA. Additionally, Randy instructed Ary to flee from police when the duo was being closed in upon.

Although Randy suggests that Ary shot Timothy, such a hypothesis of innocence is not reasonable as there is no evidence linking Ary to the shooting. The jury's decision to reject Randy's hypothesis of innocence was reasonable and based on rational credibility and evidentiary determinations, and it is improper on appeal to assess the credibility of witnesses or reweigh evidence.

Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis of innocence, that the defendant was guilty of the second degree murder of his brother, Timothy. This assignment of error is without merit.

Pro Se Assignments of Error

Randy also filed an untimely supplemental pro se brief, raising two assignments of error.

Randy's Mental Capacity

In his first pro se assignment of error, Randy asserts his rights provided by the Eighth Amendment to the United States Constitution against cruel and unusual punishment were violated where the trial court allowed him to proceed to trial without the trial court determining whether he had the capacity to understand the proceedings against him or to assist in his defense.

As previously noted, Randy has paranoid schizophrenia. On a motion by his defense counsel, the trial court appointed a sanity commission. On December 3, 2013, based on the opinions of Dr. Richard Williams and Dr. Marc Colon who examined Randy, the trial court determined that Randy was not competent to proceed to trial, and he was placed in the Feliciana Forensic Facility. Ultimately, it was concluded that Randy was able to understand the proceedings against him, and on November 5, 2014, the trial court ordered the doctors to re-evaluate Randy. The sanity hearing was held on May 31, 2016, at which Dr. Williams and Dr. Colon testified that Randy was competent to proceed, and he knew right from wrong at the time of the offense. The trial court then ordered Dr. Mark Vigen to examine Randy. Dr. Vigen concluded that Randy had the capacity to understand the proceedings against him and could assist in his own defense. Based on the medical opinions, the trial court found that Randy was competent to proceed and set the matter for trial.

In this assignment of error, Randy argues the trial court erred in relying solely on the conclusions of the doctors in making its legal determination he was competent to proceed to trial. He contends that the record contains sufficient evidence that he lacks the capacity to understand the proceedings against him or assist in his defense as he is a paranoid schizophrenic, bipolar, hyperactive, suffers from grandiose delusions, and takes numerous antipsychotic medications. Randy claims that the medical opinions, while relevant, were conclusory and incomplete. He notes in a February 17, 2015, report, Dr. Williams stated he needed to review more hospital records before he could determine whether Randy was able to distinguish between right and wrong at the time of the offense. Also, in an April 7, 2015, report, Dr. Colon found that Randy was likely operating under the presence of delusions at the time of the offense, but that there were not enough clinical indicators that he was unable to distinguish between right and wrong.

In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C. Cr. P. art. 841(A).

The due process clause of the Fourteenth Amendment protects an individual's right not to proceed to trial while legally incompetent. State v. Odenbaugh , 2010-0268 (La. 12/06/11), 82 So.3d 215, cert. denied , 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) ; State v. Taylor , 49,467 (La. App. 2 Cir. 01/14/15), 161 So.3d 963. Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La. C. Cr. P. art. 641.

Louisiana law presumes a defendant's sanity. La. R.S. 15:432 ; State v. Holmes , 2006-2988 (La. 12/02/08), 5 So.3d 42, cert. denied , 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). Therefore, an accused bears the burden of proving by a preponderance of the evidence that he lacks the capacity to stand trial. Id. Although a trial court may receive expert medical testimony on the issue of a defendant's competency to proceed to trial, the ultimate decision of capacity rests with the trial court. La. C. Cr. P. art. 647 ; Holmes, supra . A reviewing court gives great weight to the trial court's determinations as to the defendant's competency, and the trial court's ruling thereon will not be disturbed on appeal absent an abuse of discretion. State v. Anderson , 2006-2987 (La. 09/09/08), 996 So.2d 973, cert. denied , 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009) ; Taylor, supra .

The Louisiana Supreme Court in State v. Bennett , 345 So.2d 1129, 1138 (La. 1977), provided the proper considerations to determine whether a defendant is fully aware of the nature of the proceedings against him, which include whether he: (1) understands the nature of the charge and can appreciate its seriousness; (2) understands what defenses are available; (3) can distinguish a guilty plea from a not guilty plea and understand the consequences of each; (4) has an awareness of his legal rights; and, (5) understands the range of possible verdicts and the consequences of conviction.

The Bennett court also provided the following factors to consider when determining an accused's ability to assist in his defense, including whether a defendant: (1) is able to recall and relate facts pertaining to his actions and whereabouts at certain times; (2) is able to assist counsel in locating and examining relevant witnesses; (3) is able to maintain a consistent defense; (4) is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; (5) has the ability to make simple decisions in response to well-explained alternatives; (6) is capable of testifying in his own defense if necessary to defense strategy; and, (7) is apt to deteriorate mentally under the stress of trial. Id.

Here, although the defense did not object to the trial court's finding of competency, we conclude the trial court did not abuse its discretion in finding that Randy was competent to stand trial. The trial court was presented with the expert opinions of three doctors who found that Randy had the capacity to understand the proceedings against him and could assist in his own defense. At the sanity hearing, Dr. Williams and Dr. Colon testified that Randy understood his rights and the charges against him, could effectively participate in a trial, and could decide whether or not to testify. As to Randy's claim that the opinions of the doctors were incomplete, at the hearing, Dr. Williams testified that after he issued his report, he received the necessary records, which did not change his opinion that Randy was competent to proceed to trial and was able to distinguish between right and wrong at the time of the offense. Further, Dr. Williams and Dr. Colon testified that even though Randy was not compliant with his medications and had delusions at the time of the offense, the delusions did not relate to the offense, and therefore, Randy had the capacity to distinguish between right and wrong, and Randy's delusions would not impact his ability to consult with counsel during trial. The fact that Randy suffers from paranoid schizophrenia is not inconsistent with a finding that he was competent to stand trial. See State v. Jones , 376 So.2d 125 (La. 1979).

The trial court's determination of mental capacity is entitled to great weight, and the record does not support Randy's position that he lacked the capacity to understand the proceedings against him or to assist in his defense. Accordingly, this assignment of error is without merit.

Ineffective Assistance of Counsel

In his second pro se assignment of error, Randy asserts that his rights under the Sixth Amendment to the United States Constitution and the Louisiana Constitution to the assistance of counsel were violated where his trial counsel failed to prepare or adequately investigate the circumstances of his case. Randy argues that his attorney was ineffective by failing to undertake a reasonable investigation into the circumstances of this case when there was evidence that drugs may have been involved in the shooting, and in failing to investigate whether police obtained any evidence pointing to a different suspect. Randy notes that the case narrative section of the coroner's report states that according to the police, the victim was in the bedroom looking through things when Randy came in shouting at the victim and then pulled out his gun and began firing. Also, Randy notes that the coroner's report states: "Causes of death: Several baggies of marijuana were found in the bedroom where the decedent was shot." He claims that the state's case against him was circumstantial and there was no evidence to corroborate any theory that Randy shot his brother over drugs.

Randy further claims that his attorney was ineffective by failing to obtain a firearms expert to rebut the state's claim that the shots were fired from his gun. He argues that Chris Davis, who testified as an expert in firearms identification in this case, was never certified as a firearms examiner or as a tool mark expert by the Association of Firearm and Tool Mark Examiners, and had only been accepted as an expert in firearms identification only twice.

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Moore , 48,769 (La. App. 2 Cir. 02/26/14), 134 So.3d 1265, writ denied , 2014-0559 (La. 10/24/14), 151 So.3d 598 ; State v. Eiskina , 42,492 (La. App. 2 Cir. 09/19/07), 965 So.2d 1010. However, when the record is sufficient, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. Id.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by U.S. Constitutional Amendment VI. State v. Wry , 591 So.2d 774 (La. App. 2 Cir. 1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, to establish that his attorney was ineffective, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that counsel's deficient performance prejudiced his defense and that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra ; State v. Reese , 49,849 (La. App. 2 Cir. 05/20/15), 166 So.3d 1175, writ denied , 2015-1236 (La. 06/03/16), 192 So.3d 760.

A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Smith, 49,356 (La. App. 2 Cir. 11/19/14), 152 So.3d 218, writ denied , 2014-2695 (La. 10/23/15), 179 So.3d 597. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra ; Reese, supra .

The filing and pursuit of pretrial motions is squarely within the ambit of the attorney's trial strategy, and counsel is not required to engage in efforts of futility. State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So.3d 235, writ denied , 2014-2631 (La. 09/25/15), 178 So.3d 565.

Randy's claims of ineffective assistance of counsel are without merit. First, there is no evidence that Randy's attorney failed to conduct an adequate investigation into the facts of this case. Other than the fact that marijuana was found in the bedroom where the victim was shot, there is nothing in the record indicating that the shooting was the result of an argument over marijuana. Further, at trial, the officers testified that all of the evidence pointed to Randy as the suspect, and there is no evidence to suggest that another person shot the victim.

As to Randy's second claim that his attorney was ineffective in failing to retain a firearms expert, Randy merely complains that Chris Davis, the state's expert, was not qualified and does not state why independent testing should have been pursued. At trial, defense counsel objected to Davis' qualifications as a firearms examiner based on his lack of certifications and the fact that he had only testified on two prior occasions. The trial court overruled the objection. There is no indication that Davis' firearms testing in this case was incomplete or suspect in any way. Mere conclusory statements are insufficient to establish a claim of ineffective assistance of counsel. Randy failed to show that his attorney was deficient in failing to retain a firearms expert, or that additional firearms testing would have changed the outcome of his trial. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Randy Anderson's conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, MOORE, GARRETT, STONE and BLEICH, JJ.

Rehearing denied.

      At the time of the trial, Rudell was no longer employed by the Shreveport Police Department.

      Previously, on March 3, 2015, the defense had filed a motion to change Randy's plea to not guilty and not guilty by reason of insanity. However, the defense withdrew that motion prior to trial based on the medical opinions.


author: STONE, J.

text:
    Michael CARTER, Plaintiff-Appellant v. CITY OF SHREVEPORT, Willie Shaw, Jr., individually and in his official capacity as Chief of Police and William Bradford, individually and in his official capacity as City Attorney, Defendant-Appellee
    No. 51,589-CA
    Court of Appeal of Louisiana, Second Circuit.
    September 27, 2017
    BREEDLOVE LAW FIRM, By: Pamela N. Breedlove, Shreveport, Counsel for Appellant
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP, By: Edwin Henry Byrd, III, By: Joseph Samuel Woodley, Shreveport, Counsel for Appellee
    Before MOORE, STONE, BLEICH (Pro Tempore), JJ.
   STONE, J.

The Appellant, Michael Carter ("Carter"), appeals the trial court's ruling ordering him to pay $1,000 to obtain public records from Appellees, City of Shreveport ("City"), Willie Shaw, Jr., individually and in his official capacity as Chief of Police ("Shaw"), and William Bradford, individually and in his official capacity as City Attorney ("Bradford")(collectively, "Defendants"). Additionally, Carter appeals the trial court's denial of his request that Defendants be penalized for their delay in responding to the public records requests, and the trial court's award of only $2,000 in attorney fees. For the following reasons, we amend the judgment in part to reflect an increase in attorney fees and, as amended, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 14, 2015, Pamela Breedlove ("Breedlove"), counsel for Carter, faxed four separate public records requests ("the requests") to the City seeking certain documents from the Shreveport Police Department ("SPD"). The requests were also faxed to Shaw and Bradford. The requests are reproduced below:

Public Records Request # 1

1. Produce any and all Departmental Organization Chart, General Order, Bureau Manual, Human Resources Document, Departmental Memo, or other document which establishes the number authorized and/or allotted officers for the Shreveport Police Department's Five Divisions as set forth in its General Orders, which include: the Administrative Division, the Investigations Division, the Support Division, the Uniform Services East Division, and the Uniform Services West Division.
2. Produce any and all Departmental Organization Chart, General Order, Bureau Manual, Human Resources Document, Departmental Memo, or other document which establishes the number of authorized and/or allotted officers for the Shreveport Police Department in the following Bureaus and/or Units:
i. Chief's personal staff
ii. Staff Services Bureau
iii. Technical Services Bureau
iv. Violent Crimes Unit
v. Narcotics Unit
vi. Property Crimes Unit
vii. Juvenile Crimes Unit
viii. SRT Team
ix. CSIU
x. Information Services Bureau
xi. Human Resources Bureau
xii. Training Academy
xiv. Patrol Administration
xv. Community Oriented Policing Bureau
xvi. USD Administration
xvii. Area 1 Patrol Bureau
xviii. [sic ] Area 2 Patrol Bureau
xix. Area 3 Patrol Bureau
xx. Area 4 Patrol Bureau
xxi. Accident Investigation Unit
xxii. DWI Unit
xxiii. Radar Unit
xxiv. Motorcycles Unit
xxv. K-9 Unit
xxvi. Cross Lake Patrol
xxvii. Property Room/Property Management
xxviii. Internal Affairs
xxix. Deputy Chief Administration
xxx. Any other administrative positions
xxxi. Any other special units
3. For all divisions, bureaus, units, and/or staff positions so authorized and/or allocated, produce any and all memos, summaries, emails, and/or other documents showing the number of officers actually filling said positions.
4. For all divisions, bureaus, units and/or staff positions so authorized and/or allocated, produce any and all memos, summaries, emails, and/or other documents showing the number of vacancies in each such position.

Public Records Request # 2

1. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours earned by all officers in the Patrol Bureau since January 1, 2014.
2. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours taken off by all officers in the Patrol Bureau since January 1, 2014.
3. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours earned by all officers in the Investigative Division since January 1, 2014.
4. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours taken off by all officers in the Investigative Division since January 1, 2014.
5. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours earned by all officers in the Internal Affairs Bureau since January 1, 2014.
6. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours taken off by all officers in the Internal Affairs Bureau since January 1, 2014.
7. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours earned by all officers in the Field Support Bureau since January 1, 2014.
8. Produce any and all memos, summaries, reports, and other documents that show the total number of compensatory hours taken off by all officers in the Field Support Bureau since January 1, 2014.
If the Shreveport Police Department asserts it does not have any documents that break down this information as requested, then produce the following documents:
9. Produce any and all 2014 and 2015 time sheets for all officers in the Patrol Bureau.
10. Produce any and all 2014 and 2015 time sheets for all officers in the Investigative Division.
11. Produce any and all 2014 and 2015 time sheets for all officers in the Internal Affairs Bureau.
12. Produce any and all 2014 and 2015 time sheets for all officers in the Field Support Bureau.

Public Records Request # 3

1. Produce any and all General Orders, policies, memos, summaries, reports, emails, Internal Office Communications and other documents that establish, address, discuss, change, or interpret the requirements for compensatory time to be taken by members of the Shreveport Police Department including all divisions, bureaus, departments, and positions.
2. Produce any and all General Orders, policies, memos, summaries, reports, emails, Internal Office Communications and other documents that establish, discuss, change, interpret or otherwise address the minimum staffing required for each division, bureau, unit, and/or shift of the Shreveport Police Department.
3. Produce any and all General Orders, policies, memos, summaries, reports, emails, Internal Office Communications and other documents that establish, address, discuss, or otherwise set forth the time period by which police officers must request to take compensatory time off.
4. Produce any and all General Orders, policies, memos, summaries, reports, emails, Internal Office Communications and other documents that establish, address, discuss, or otherwise set forth the rank, title, and/or person at the Department responsible for making the decision whether to grant a request for compensatory time off.
5. [sic ] Produce any and all General Orders, policies, memos, summaries, reports, emails, Internal Office Communications and other documents that establish, address, discuss, or otherwise set forth the time period by which the person making the decision whether to grant a request for compensatory time off must make the decision after the request is received.

Public Records Request # 4

1. Produce a copy of all requests for compensatory time off for Shreveport Police Department officers that were granted in 2015 (which requests includes copies of the approval by the department).
2. Produce a copy of all requests for compensatory time off for Shreveport Police Department officers that were denied in 2015 (which requests includes copies of the denial by the department).

The next day, September 15, 2015, Bradford responded to Breedlove by telephone and indicated the City was working on a response to the requests. On October 6, 2015, Carter agreed to allow Defendants until October 8, 2015 to respond. Also on October 6, 2015, Breedlove sent Defendants the following additional requests:

Public Records Request # 5

1. Produce a copy of the City of Shreveport budget items related to the purchasing of vehicles for the Shreveport Police Department for the years 2014, 2015, and 2016.
2. Produce a copy of the City of Shreveport budget items, accounting items, and other reports showing how the City has accounted for insurance payments received on wrecked Shreveport Police Department vehicles from 2012 to present.

Public Records Request # 6

1. Inventory records, reports, memos, and/or other documents that show the number of vehicles owned by the City of Shreveport and assigned to civilian employees or civilian positions of the Shreveport Police Department, including the make and model of the vehicle and mileage of the same.
2. Inventory records, reports, memos, and/or other documents that show the number of vehicles owned by the City of Shreveport and assigned to Police Chaplain of the Shreveport Police Department, including the make and model of the vehicle and mileage of the same.
3. Inventory records, reports, memos, and/or other documents that show the make and model of the vehicle and mileage of vehicles owned by the City of Shreveport and assigned to the Chief of police, the Deputy Chief of Police, the Assistant Chiefs of Police, and the Assistant to the Chief of Police.
4. Inventory records, reports, memos, and/or other documents that show the make and model of the vehicle and mileage of vehicles owned by the City of Shreveport and assigned to any and all members of the Internal Affairs Division.
5. Inventory records, purchase records, and/or any other documents showing that any of the vehicles identified in response to any of the above Public Records Requests have the required insignia on both sides of the vehicles as required by Louisiana Revised Statute 49:121. If the City claims that any of the vehicles are exempt from marking pursuant to subsection E of the statute, produce any and all records showing that the City determined marking these vehicles would negate crime prevention function of the person assigned to the vehicle, including the date and rank of the person making the decision.

Public Records Request # 7

1. Inventory records, reports, memos, and/or other documents that show the number of Shreveport Police Department marked units currently owned by the City of Shreveport.
2. Inventory records, reports, memos, and/or other documents that show the year, model, mileage, and whether the vehicle is in service and being used by patrol officers of all Shreveport Police Department marked units currently owned by the City of Shreveport.
3. Inventory records, purchase agreements, invoices, bids, and/or other documents that shows the total costs to fully equip a car for use by patrol officers, including but not limited to installing partition between front and back seats, installing light bar, and other equipment necessary for patrol officers.
4. Inventory records, reports, memos, invoices, and/or other documents that show the number of cars purchased and fully equipped for patrol officers of the Shreveport Police Department since 2010.
5. Inventory records, repair records, and other documents that show the number of Shreveport Police Department marked units currently out of service for repairs.

Defendants timely responded to the added requests, but asked for additional time to respond to the September 14 requests. Carter agreed to give Defendants until Tuesday, October 13, 2015, to produce the requested records. On October 12, 2015, Bradford notified Breedlove that the Defendants still needed more time. Breedlove and Carter would not agree to an additional extension, and thereafter, on October 19, 2015, Carter filed a petition for a writ of mandamus ordering Defendants to respond to the September 14 requests. In his petition, Carter alleged Defendants were liable for penalties and attorney fees for violations of the Public Records Act, La. R.S. 44:1 et seq. Specifically, Carter alleged Defendants arbitrarily and capriciously failed to timely produce the requested records.

During the hearing on the writ of mandamus, Defendants presented testimony regarding the problems associated with responding to the requests, the problem created by disclosing when particular police units would not be working, and the difficulty in redacting certain information from such a voluminous response. After testimony and discussion from Carter and Breedlove, the parties agreed that Defendants would produce all 2014 records by February 1, 2016, and produce all 2015 records by April 1, 2016. The records would be redacted to remove protected, nonresponsive information. The trial court ordered Carter to pay $1,000 for copies of the records. Additionally, the trial court found Defendants were not arbitrary and capricious in their delayed response to the requests and declined to award Carter any penalties. The trial court awarded Carter $2,000 in attorney fees. Carter now appeals.

DISCUSSION

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes setting aside a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass'n, 2002-2660 (La. 06/27/03), 851 So.2d 1006, citing Rosell v. ESCO , 549 So.2d 840 (La. 1989) ; Hopkins v. Nola, 46,114 (La. App. 2 Cir. 03/09/11), 58 So.3d 1075. To reverse a factfinder's determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State Dept. of Transp. & Dev., 617 So.2d 880 (La. 1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Civil penalties

Carter asserts the trial court erred in failing to award him civil penalties pursuant to La. R.S. 44:35(E)(1) because Defendants arbitrarily and capriciously failed to respond in the 5-day time period prescribed by La. R.S. 44:35(A).

La. R.S. 44:32, in pertinent part, provides:

A. The custodian shall present any public record to any person of the age of majority who so requests. The custodian shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person and may require the person to sign a register and shall not review, examine or scrutinize any copy, photograph, or memoranda in the possession of any such person; and shall extend to the person all reasonable comfort and facility for the full exercise of the right granted by this Chapter; provided that nothing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined; and provided further, that examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours. In this event the persons designated to represent the custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public body having custody of such record, out of funds provided in advance by the person examining such record in other than regular office or working hours.
B. If any record contains material which is not a public record, the custodian may separate the nonpublic record and make the public record available for examination.

Proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, attorney fees, costs, and damages may be instituted by any person who has been denied the right to inspect or copy a public record, either by a final determination of the custodian or by the passage of five days, exclusive of weekends and legal public holidays, from the date of his request without receiving a written final determination by the custodian. La. R.S. 44:35(A). The remedy of civil penalties and damages is provided by La. R.S. 44:35(E)(1), which states:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

Whether civil penalties or damages may be awarded under La. R.S. 44:35(E)(1) is based on whether the custodian arbitrarily or capriciously withheld the requested records or arbitrarily or unreasonably failed to respond to the request as required by La. R.S. 44:32. The terms "arbitrarily and capricious" mean willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case. However, when there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached. Toups v. City of Shreveport, 10-1559 (La. 03/15/11), 60 So.3d 1215. An action is arbitrary and capricious if it is without rational basis. Atchison v. Monroe Mun. Fire & Police Civil Serv. Bd., 46,178 (La. App. 2 Cir. 05/04/11), 64 So.3d 874.

The requests made by Carter were indubitably onerous and burdensome. Moreover, the unarguably primitive state of record keeping by SPD must be taken into account when determining Defendants' reasonableness in responding to the requests. Many of the personnel records sought by Carter had to be arduously compiled by hand reviews and sorting, doubtless a tedious and labor-intensive task. With these facts in mind, it was unrealistic to assume that SPD could produce the requested documents in the allotted 5 days. The record reflects that on September 5, 2015, one day after the requests were sent, Bradford telephoned Breedlove and advised her the City was working on the responses. This is clear indication that the City was not intentionally trying to ignore Carter or avoid responding to the requests.

In a letter dated October 6, 2015, Carter agreed to give Defendants additional time to respond to the requests; however, Carter also requested additional documentation from Defendants, on top of what was already requested. Defendants timely responded to the subsequent requests but notified Carter of the need for additional time to respond to the September 4 requests. This again suggests Defendants were not intentionally attempting to evade Carter and, in fact, shows Defendants' good faith efforts to maintain communication.

During the hearing, Carter acknowledged that he had received all the documents except the time sheets, but agreed that a few additional months, about 5 months total, was necessary and reasonable for Defendants to produce the redacted time sheets. The record does not reflect, nor does Carter argue, Defendants did not produce the time sheets by the agreed upon deadlines.

Based on the evidence presented, we find Defendants fully complied with the provisions of La. R.S. 44:32, and there exists a factual basis for the trial court's determination that Defendants did not arbitrarily and capriciously withhold the requested records from Carter.

Costs of Copying Public Records

Carter argues Defendants demanded excessive labor charges for the requests. Specifically, Carter argues that instead of paying $1,000 for copies, he should have been required to pay only $588.60, which is the standard rate of 15 cents per page copied. Carter argues the additional $411.40 is for labor costs, and there is no authority for Defendants to impose such cost. According to Carter, Defendants have never required anyone else to pay labor costs for public records.

Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra; Turner v. State Farm Mutual Auto Ins. Co., 32,423 (La. App. 2 Cir. 10/27/99), 743 So.2d 924.

During the hearing on Carter's writ of mandamus, the City presented Carter with an invoice for $3,978.60 for the costs associated with copying the documents he requested. The City argued the total was based on having to pull at least 40 police officers away from their normal duties to copy the records. Carter argued he should only be required to pay $588.60 for the documents, 15 cents per page which is standard for copying charges.

We find $1,000 was a reasonable amount for the copies of the records. The trial court apparently took into consideration the copious documents requested by Carter and the obviously labor-intensive task of copying the documents. Moreover, considering the City actually requested $3,978.60, we find the trial court did not abuse its discretion by ordering Carter to pay $1,000 for the copies.

Redacted Time Sheets

Carter contends there is no legal authority to support Defendants' claims that parts of the time sheets needed to be redacted. Carter asserts unredacted time sheets are public record, and the trial court erred in allowing Defendants to redact certain information from the time sheets before providing Carter with copies.

The record does not reflect Carter contested or otherwise objected to the trial court's decision to allow the City to redact portions of the time sheets before producing them. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. Zellinger v.Amalgamated Clothing, 28,127 (La. App. 2 Cir. 04/03/96), 683 So.2d 726 ; Martinez v. Schumpert Med. Ctr., 27,000 (La. App. 2 Cir. 05/10/95), 655 So.2d 649. Carter's failure to contemporaneously object to the redaction constitutes a waiver of his right to complain on appeal that no parts of the time sheets should have been redacted.

DVD Costs

Carter also contends the trial court erred in not ordering Defendants to refund him for the $50 payments he previously paid for DVDs containing scanned versions of some of the requested documents. According to Carter, Defendants chose to scan the documents instead of copying them onto paper, and DVD charges are not delineated in the City Ordinance.

The issue of the $50 payments for the DVDs was never before the trial court. Carter made those payments prior to the hearing on the writ of mandamus and did not raise the issue during the hearing. Appellate courts generally will not consider issues raised for the first time on appeal. Costello v. Hardy, 2003-1146 (La. 01/21/04), 864 So.2d 129. Since the trial court never rendered a decision concerning the validity of the $50 payments for the DVDs, we pretermit any discussion on this issue.

Attorney Fees

Additionally, Carter asserts the trial court erred in awarding Carter only $2,000 in attorney fees.

The public's right to access public records is a fundamental right guaranteed by the state constitution. La. Const. art. 12, § 3 ; Title Research Corp. v. Rausch, 450 So.2d 933 (La. 1984). In accordance with this fundamental right, the public records statutes should be construed liberally. Id. With regard to attorney fees and costs, La. R.S. 44:35(D) states:

D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.

The amount of an award for attorney fees is within the discretion of the trial court. Dwyer v. Early , 2002-1545 (La. App. 4 Cir. 03/12/03), 842 So.2d 1124, writ denied , 2003-1013 (La. 05/30/03), 845 So.2d 1053 ; Bohn v. Louisiana Farm Bureau Mut. Ins. Co., 482 So.2d 843 (La. App. 2 Cir. 1986), writs denied, 486 So.2d 750 (La. 1986)and 486 So.2d 752 (La. 1986). Generally, each case is considered in light of its own facts and circumstances, but the amount awarded must be reasonable. Bohn, supra.

Breedlove submitted an affidavit wherein she stated she spent 21.7 hours drafting the writ of mandamus petition, corresponding with the City Attorney's Office and defense counsel, appearing at trial, participating in telephone conferences, drafting motions and memoranda, and preparing exhibits for those motions. She attested that her standard billing rate was $175 per hour, which is reasonable for an experienced attorney who has been practicing law for over 23 years.

There was no hearing on attorney fees and Defendants never challenged Breedlove's affidavit or offered contradictory evidence. It was within the trial court's discretion to determine what amount, if any, was reasonable for attorney fees. However, the trial court provided no reasons for its $2,000 award nor can we find any reasonable basis in the record supporting the trial court's decision, considering the work done in this matter from the filing of the initial petition until the judgment on the attorney fees and costs was obtained. Having reviewed this record and the affidavit submitted by Breedlove, we find the trial court abused its discretion in awarding only $2,000 in attorney fees. Accordingly, we find that the trial attorney fees should be increased to $3,797 for Breedlove's 21.7 hours of work at $175 per hour.

As for additional attorney fees for work done on appeal, the general rule is that an increase in attorney fees is usually allowed where a party was awarded attorney fees by the trial court and is forced to and successfully defends an appeal. Genusa v. Dominique , 97-0047 (La. App. 1st Cir. 02/20/98), 708 So.2d 784, 792. It is within the appellate court's discretion to award or increase attorney fees for appellate work. Nesbitt v. Nesbitt, 46,514 (La. App. 2 Cir. 09/21/11), 79 So.3d 347, writ denied, 2011-2301 (La. 12/02/11), 76 So.3d 1178. Carter challenged numerous parts of the trial court's judgment, but succeeded on only one of the issues he presented. Since Carter successfully defended a portion of the appeal, we award him an additional $1,200 in attorney fees for services rendered in connection with the appeal.

CONCLUSION

For the foregoing reasons, the ruling of the trial court is affirmed as it pertains to civil penalties and the costs of producing copies. The trial court's $2,000 judgment for attorney fees is reversed and Carter is awarded attorney's fees in the amount of $4,997. The appellate court costs in the amount of $1,492.50 are to be equally split between Carter and the City of Shreveport in accord with La. R.S. 13:5112.

AMENDED AND, AS AMENDED, AFFIRMED.