author: HIGGINBOTHAM, J.' THERIOT, J.,

text:
    STATE of Louisiana v. Bryan Anthony GOLDEN
    NO. 2016 KA 1659
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      Allen J. Myles, Plaquemine, LA, Attorney for Defendant-Appellant, Bryan Anthony Golden
    Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, Attorneys for Appellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.'

^Defendant, Bryan Anthony Golden, was charged on two counts by bill of information with armed robbery involving the use of a firearm, violations of La. R.S. 14:64 (count one) and 14:64.3 (count two). He pled not guilty. Defendant waived, his right to a jury trial, and this matter was tried as a bench trial. Defendant was found guilty as charged. Defendant filed a motion for new trial, which the trial court denied. Thereafter, the trial court sentenced defendant on the armed robbery conviction (count one) to fifteen years at hard labor, without the benefit of parole, probation, or suspension of sentence. For the use of a firearm during the armed robbery (count two), the trial court imposed an additional five years at hard labor, without the benefit of parole, probation, or suspension of sentence. The sentences imposed were ordered to be served consecutively. Defendant now appeals, alleging two assignments of error.

FACTS

Around 12:30 p.m. on February 19, 2014, a subject wearing a motorcycle helmet and brandishing a handgun entered the Red River Bank on La. Hwy. 73 in Geismar. The individual, who tellers could identify only as a black male, jumped the teller line counter and began to pull cash from the bank’s drawers. Because the bank had recently received a cash delivery, the subject eventually fled with almost fifty thousand dollars. Witnesses outside the bank described seeing a gold, four-j ¡floor vehicle fleeing the área at a high rate of speed. One of the witnesses described seeing a helmeted person sitting inside the passenger’s side of the vehicle.

Following the robbery, another witness observed an abandoned vehicle on Coco Road and informed the police about the car. Lieutenant Aaron Hooper, from Hunt Correctional Center, assisted the Ascension Parish Sheriffs Office by utilizing one of his tracking dogs in the area of the abandoned vehicle, a stolen gold Chevrolet Malibu. Lieutenant Hooper’s dog established a track which led to a trailer located at 36695 River Oaks Road, where an individual named Travis West lived. Lieutenant Hooper and his dog then backtracked to the vehicle. In traversing through the woods, Lieutenant Hooper located sweatpants, a t-shirt, and a pair of shoes neatly stacked along the trail. A subsequent search of the vehicle revealed a cardboard money divider used by one of the bank’s tellers.

In their investigation, the police spoke with West several times. As a result of these interviews, the police developed as suspects Emerson and defendant. Emerson is West’s cousin, and subsequent DNA testing could not exclude him as a contributor to a profile discovered on some of the clothing recovered from the woods. West later pled guilty to accessory after the fact to- armed robbery, and Emerson and defendant were tried together in the instant matter.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, defendant contends that the evidence presented at trial was insufficient to support his convictions. In particular, he argues that the state’s evidence regarding his identity as the perpetrator who entered the bank was purely circumstantial and failed to exclude every reasonable hypothesis of innocence,

14A conviction based on insufficient' evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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 beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, ..both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, and 2000-0895 (La. 11/17/00), 773 So.2d 732.

Defendant does not dispute that an armed robbery took place at the Red River Bank on February 19, 2014. Rather, he argues that the state failed to prove his identity as the perpetrator. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by Lonly one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this Court will generally not second-guess those determinations. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 2001-3033 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.

None of the tellers who witnessed the robbery or external witnesses who witnessed the flight could identify any of the perpetrators. Further, the only significant DNA evidence introduced at trial linked co-defendant Emerson to some of the clothing recovered along the scent trail from the gold Chevrolet Malibu to West’s trailer. Neither the weapon nor the motorcycle helmet used by the perpetrator were ever recovered.

Defendant turned himself in to the police on February 21, 2014. After being Mirandized, he gave an unrecorded statement. In the statement, defendant described that he was napping during the time of the robbery. Defendant said that when he woke up around 2:00 or 3:00 p.m., he had a friend bring him to Gonzales Motors, where he bought a blue Mercury Sable for $3,300 in cash. He then went to Best Buy in. Baton Rouge, where he spent another $1,000 in cash. Defendant told the detectives that he then partied because his birthday was the week before. Defendant explained that he had gotten some money from an insurance settlement in the fall of 2013 and another $1,000 for driving trucks. Defendant advised that he had a bank account with United Community Bank (UCB).

The state called a UCB employee to testify at trial. The employee assisted in reviewing defendant’s bank records. According to the employee, defendant made a $10,000 deposit on November 18, 2013, but his balance was just under $600 on December 31, 2013. In addition, defendant made a $1,000 cash deposit after 4:00 p.m. on the •date of the armed robbery. The UCB employee recalled defendant’s deposit on this day and testified that the bills deposited were new $100 bills that stuck together. A .manager at Gonzales Motors also testified at trial regarding | defendant’s purchase of the Mercury Sable. The manager described that defendant paid in cash with new $ 100 bills that stuck together.

At the time of the robbery, defendant lived at Twin Lakes Mobile Home Park. The park’s office manager testified at trial that defendant routinely had trouble paying his rent on time from the time he began living there in March or April of 2013.

Detective Brad Gomez of the Ascension Parish Sheriffs Office was the lead investigator in the armed robbery. He participated in executing a search warrant of defendant’s trailer. During a search of the trailer, the police recovered numerous items with defendant’s name on them. Also recovered from defendant’s trailer were three Best Buy receipts from the evening of February 19, 2014, totaling approximately $1,000 in cash expenditures. The search also revealed an empty motorcycle helmet bag, as well as a large, zippered black bag.

West testified at trial. He described that on the day of the incident, he was riding around the area of his home with friends when he saw his cousin, co-defendant Emerson, walking on La. Hwy. 73. West described that he picked up Emerson and began to drive him in the direction of Emerson Road when he noticed defendant walking out of the woods carrying a large bag or shirt. According to West, defendant got into the car and said to Emerson that he thought he had left DNA behind. West stated that he drove defendant and Emerson to Emerson Road, where he let them out of the vehicle. West admitted to pleading guilty to accessory after the fact, though he stated he did so on the advice of counsel.

On March 11, 2014, Marcus Sterling wrote a letter addressed to Ascension Parish Sheriff Jeff Wiley. Sterling was being jailed with defendant and indicated in the letter that defendant had told him some of the details of the bank robbery. Detective Gomez received the letter as part of his investigation and found it to contain details of the offense that were not released in a Crime Stoppers bulletin. Among these details were: the “black teller” had fallen during the robbery, the | .¿fleeing subject dropped some money outside the bank, the subject wore a mask under his helmet, a different teller helped the suspect retrieve the money, guns found in defendant’s home did not include the gun used in the robbery, the suspect received a ride from West in a gold car (West owned a gold Nissan Altima), the tellers were two white women and a black woman, and defendant purchased a new cell phone after the robbery. Sterling later met with Detective Gomez and made a statement concerning his knowledge reflected in the letter.

Sterling also testified at trial and reiterated some of the details included in the letter; he claimed not to remember other details. Sterling indicated that defendant told him he stole over $40,000, splitting half with co-defendant Emerson. Defendant told Sterling that he gave his money to “his baby mamma,” and Emerson buried his share. A search of defendant’s girlfriend’s residence, conducted three months after the robbery, did not reveal any evidence. Defendant did not testify at trial. To impugn Sterling’s credibility, defendant called Sterling’s ex-girlfriend, who stated that Sterling was not truthful and would make up stories to get out of jail. Co-defendant Emerson called two witnesses who presented alibi evidence on his behalf.

Following the presentation of evidence, the trial court orally set forth the reasons for its verdict. The trial court first noted that defendant shared some of the physical characteristics of the suspect who went inside the bank, presumably his skin color and height. The trial court noted that a helmet bag was found in defendant’s home, and defendant spent over $4,000 on the day of the robbery and also deposited $1,000 in new $100 bills. The court highlighted defendant’s statement that he left his DNA and credited West’s testimony-regarding witnessing defendant carry. a black sack.

The trial court then turned to the Sterling evidence. While the trial court found Sterling’s credibility to leave “a lot to be desired,” it noted the ability to believe some testimony while disbelieving other statements. The trial court found that Sterling’s | «letter to the sheriff contained statements of fact that he otherwise could not have known, and it chose to credit his recitation of those facts.

In his brief, defendant seizes upon a statement by the trial court that the'evidence does not exclude every reasonable hypothesis of innocence. However, a review of the context of this statement indicates it to be a simple misstatement rather than a finding. The trial court stated;

And basically, when we look at all the circumstantial evidence in order to convict, the Court must exclude every reasonable hypothesis of innocence. In this case the circumstantial evidence when taken as a whole does not exclude every reasonable hypothesis of innocence and the Court finds Bryan Golden guilty of armed robbery and that the robbery was committed with a firearm.

(Emphasis added). The trial court clearly recited the proper applicable law and then determined defendant to be guilty as charged, indicating that the emphasized “not” was unintended.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We-are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

Viewed in the light most favorable to the state, the evidence establishes that on February 19, 2014, defendant was in possession of a substantial amount—at least $5,000—of new $100 bills. He possessed and spent this cash despite apparently |shaving no stable job or other source of income. On this date, West saw defendant holding a large black bag, similar to one which was later recovered from defendant’s home. Additionally, a search of defendant’s home led the police to discover a bag for a motorcycle helmet, and the evidence indicates that the suspect in the bank robbery wore a motorcycle helmet. In addition, upon entering West’s vehicle, defendant expressed his concern about leaving behind his DNA. Finally, Sterling informed the police of information that defendant told him- regarding .the robbery, and this information was of the-kind not released by the detectives to the public. The trial court’s ultimate verdicts largely reflect credibility determinations, which are entitled to great deference on appeal.

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The trial court’s verdict in this case reflected the reasonable conclusion that defendant was the individual who conducted the robbery of the Red River Bank. In finding defendant guilty, the trial court rejected the theory of defendant’s complete non-involvement. See Id. In accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder’s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law, See State v. Mire, 2014-2295 (La. 1/27/16), — So.3d -, -, 2016 WL 314814, *4 (per curiam).

After a thorough review of the record, we find that the evidence supports the trial court’s verdict finding defendant guilty of armed robbery involving the use of a firearm. We are convinced that viewing the evidence in the light most favorable to the prosecution, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that defendant 11ltwas guilty of these offenses. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).

This assignment of error is without merit.

FAILURE TO DISCLOSE BRADY INFORMATION

In his second and final assignment of error, defendant argues that the state failed to disclose information regarding any leniency given to the informant, Sterling, in exchange for his'testimony.

The rule established in Brady v. Maryland is that upon request, the state must produce evidence that is favorable to the accused where it is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). See also State v. Bright, 2002-2793 (La. 5/25/04), 875 So.2d 37, 41. Failure to do so violates a defendant’s due process rights. Bright, 875 So.2d at 41. The Brady rule applies to both exculpatory and impeachment evidence, including evidence that impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Bright, 876 So.2d at 41; State v. Knapper, 579 So.2d 956, 959 (La. 1991). A Brady violation occurs when the “evidentiary suppression undermines confidence in the outcome of the trial.” State v. Garcia, 2009-1578 (La. 11/16/12), 108 So.3d 1, 37, cert. denied, — U.S. -, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).

Defendant argues that he was not informed in a timely manner that the state agreed to nolle-prosse an armed robbery charge pending against Sterling on the date he made his statement to the police, resulting in his release from jail. However, contrary to defendant’s assertion, the record does not establish that the state made a deal with Sterling to obtain his testimony.

On the morning that trial began, defense counsel requested any Brady maternal that had not yet been given. The state responded that the only deal made In was one with West, who had already pled guilty. The state noted that a charge against Sterling had been nolle-prossed but indicated that it was not in exchange for his testimony. At that time, the state informed .defense counsel and the court that Sterling still had an outstanding charge for attempted possession of drugs.

During the trial testimony of Detective Gomez, defense counsel again raised the Brady issue with respect to Sterling’s involvement in the case. While the prosecutor admitted that Sterling’s armed robbery charge was nolle-prossed on May 12, 2014, when he made a statement to the police, the prosecutor indicated that it was not done in exchange for Sterling’s statements or testimony. Rather, the prosecutor explained that similar charges had been nolle-prossed for three of Sterling’s co-defendants in exchange for their pleas to drug offenses. The prosecutor was clear that Sterling was never told that his robbery charge would be dismissed in exchange for his statement or testimony. Because the decision . to nolle-prosse the armed robbery charge led to a bond reduction, Sterling was eventually released from jail on May 20, 2014. In his own testimony, Sterling testified that he received no promises or deals for his statement or testimony. Sterling noted that he still had a pending drug charge, and in the interim since his release, he had served more jail time -as a result of a domestic' abuse charge.

In sum, there is no indication that Sterling’s letter,- statement, or testimony were the result of any deal entered into between him and the state. Therefore, there was nothing for the state to disclose pursuant to defendant’s Brady request. Further, to the extent that the state’s decision to nolle-prosse the armed robbery charge might be considered a “deal,” that information was revealed on the morning of trial, and the issue would become one of late disclosure, not non-disclosure. Defense counsel fully cross-examined Sterling about his “hope” of the outcome of his pending charges, and the trial court was undoubtedly aware of all of the relevant facts concerning Sterling’s involvement in the instant matter. There is no evidence in the record of any prejudice to defendant.

haThis assignment of error is without merit,

CONCLUSION

For the stated reasons, we find no merit to defendant’s assignments of error and, therefore, we affirm the convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

Theriot, J., dissents with reasons.

THERIOT, J.,

dissenting and assigning reasons.

hi respectfully disagree with the majority’s analysis and conclusion regarding the defendant’s second assignment of error, wherein the defendant contends that the state failed to disclose exculpatory information to him regarding leniency given to one of the state’s key witnesses, Marcus Sterling, in contravention of the rule established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), along with its progeny. I believe the record establishes that the' state failed to timely disclose material impeachment evidence about Mr. Sterling to the defendant, and find that the state’s failure to timely disclose such evidence denied the defendant of his constitutional right to a fair trial. Thus, for the reasons set forth more fully below, I would reverse the defendant’s conviction and sentence, and would grant the defendant a new trial.

It is well-settled that the state’s suppression of evidence which is favorable to the defendant violates the defendant’s due process rights if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecuting attorney. See Brady, 373 U.S. at 86-87, 83 S.Ct. 1194. The state’s duty to disclose evidence which is favorable to the defendant includes both exculpatory evidence and impeachment evidence. See State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545 (per curiam). The Brady rule encompasses evidence that impeaches the testimony of a witness when the reliability or credibility of that witness may determine the defendant’s guilt or innocence. State v. Bright, 02-2793 (La. 5/25/04), 875 So.2d 37, 41 (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The state must timely disclose the favorable evidence to the defendant so as to provide the defense with an adequate opportunity to present the material effectively in its case. See Kemp, 828 So.2d at 545.

In order to prove a Brady violation oh appeal, the defendant must first establish that the evidence at issue was, in fact, exculpatory or impeaching. See State v. Eley, 15-1925 (La.App. 1 Cir. 9/16/16), 203 So.3d 462, 472. If the defendant proves that the state failed to disclose Brady material, the conviction must be reversed, and a new trial must be granted, if the omission was of sufficient significance to result in the denial of the defendant’s right to a fair trial. See United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Brown, 15-2001 (La. 2/19/16), 184 So.3d 1265, 1266. Notably, both the late disclosure, as well as the nondisclosure, of exculpatory evidence may deprive the defendant of a fair trial. See Kemp, 828 So.2d at 545; State v. Williams, 448 So.2d 659, 665 (La. 1984). The impáct of either the late disclosure or the complete suppression of exculpatory evidence must be evaluated in the context of the entire record. Kemp, 828 So.2d at 545.

The jurisprudence clearly recognizes the breadth of the state’s duty to disclose Brady material. See e.g., Cone v. Bell, 556 U.S. 449, 470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (explaining that favorable evidence is subject to constitutionally mandated disclosure if it could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict). Thus, for example, in State v. Lindsey, 621 So.2d 618 (La. App. 2 Cir.), writ denied, 629 So.2d 417 (La. 1993), the appellate court found that the state had a duty to disclose evidence of an understanding between the state and a witness, even though the state had not reached a consummated plea agreement with the witness; In that case, the prosecuting attorney did not make any explicit promises of leniency to the witness, but promised the witness’ attorney that he would take the witness’ testimony into consideration when entering a plea bargain. The appellate court recognized that there was no binding agreement between the state and the witness, but held that the state was required to turn over any evidence of an understanding between the state and the witness regarding the expectation of favorable consideration, thereby acknowledging that the state’s constitutional duty to disclose material evidence which is favorable to the defendant is not limited to formal, consummated, binding agreements exacted between the state and a witness. See Lindsey, 621 So.2d at 624-28.

In today’s opinion, the majority finds no merit to the defendant’s second assignment of error, reasoning that the state did not have & duty to disclose Brady material to the defendant, and concluding there is “no indication” that Mr. Sterling’s letter, statement, or testimony were the result of any deal entered between him and the state. In support of its finding, the majority primarily relies upon the fact that both the prosecuting attorney and Mr. Sterling denied he was induced to testify against the defendant. To this point, the record does reflect that, on the morning of trial, defense counsel asked the prosecuting attorney for any Brady material that had not yet beén turned over. The prosecuting attornéy responded by informing defense counsel—for the first time—that certain criminal |4charges had been dismissed against Mr. Sterling. The prosecuting attorney stressed that she “wouldn’t call it a deal,” and averred that the charges had not been dropped 'in exchange for Mr. Sterling’s testimony against the defendant. Thereafter, during cross-examination by defense counsel, Mr. Sterling likewise stated he had not been made any promises by the state in exchange for his testimony at trial.

In my opinion, the majority’s decision is erroneous, since, even if there was no express agreement between Mr. Sterling and the state, the record contains significant contrary circumstantial, evidence indicating, at a minimum, the reasonable impression that Mr. Sterling may have been afforded leniency in return for his statement against the defendant. For example, in the letter Mr. Sterling wrote to Ascension Parish Sheriff Jeffrey Wiley, dated March 11, 2014, Mr. Sterling himself indicated that he was willing to testify against the defendant in exchange for leniency. Mr. Sterling stated that he was in jaü on criminal charges and was willing to testify against the defendant as follows: “I would take 5 years probation do [ (sic) ] to me doing something [illegible], I would testify and do a statement.” Mr. Sterling also expressed a willingness to testify about the criminal acts of another individual, and framed his ability to provide the police with information about this individual in concomitant terms with his imprisonment and punishment, noting, in an addendum to the letter, “Oh yeah I could take down the man that[’]s getting a hundred kilos of heroin a month in this parish that[’s] a promise!;] if not yall [ (sic) ] can give me life.”

More importantly, the record establishes that, during the middle of the trial, the defendant learned of additional information about Mr. Sterling that raises reasonable doubt as to the credibility and reliability of his testimony, which information had not previously been disclosed to the defendant. Specifically, upon Indirect examination, one of the state’s witnesses, Detective Gomez, testified that Mr. Sterling’s attorney had provided him with Mr., Sterling’s “rap sheet.” Defense counsel immediately objected to Detective Gomez’s statement, arguing that the testimony concerned information about Mr. Sterling that had not been disclosed in accordance with Brady. This objection set off lengthy arguments concerning potential Brady violations by the state. The defendant learned by , and through these arguments that Mr. Sterling had provided a recorded statement to the police concerning his knowledge about the bank robbery allegedly perpetrated by the defendant on May 12, 2014; that the armed robbery charges against Mr. Sterling had been nolle prossed on this same date; and that the prosecuting attorney in the case against the defendant had entered the nolle prosse dismissing the charges against Mr. Sterling.

Notably, although the prosecuting attorney maintained that there was no explicit agreement between the state and Mr. Sterling, she did not dispute the underlying facts that call into question the credibility of Mr.- Sterling’s testimony. Thus, for example, while the prosecuting attorney pointed out that the armed robbery charges against Mr. Sterling’s several co-defendants had also been dismissed, she admitted the charges, had been dropped on different dates, and she acknowledged that Mr. Sterling’s co-defendants all 'pled guilty to other charges, whereas the state simply dropped the armed robbery charges against Mr. Sterling on,the same date he gave a recorded statement to the police. In addition, the prosecuting attorney admitted on at least two separate occasions that there may have been some tacit connection between the state’s decision to dismiss the | (jCi-iminal charges against Mr. Sterling and Mr. Sterling’s cooperation with the police, as shown in the following colloquy;

THE COURT: Here’s the problem. I’m just—and take your time because it may very well have an explanation. But now what you’re saying is they have four people charged; three of them in return for pleading guilty to drug charges, you dismissed the armed robbery, but [Mr. Sterling] didn’t plead to anything and it still got dismissed.
[THE PROSECUTING ATTORNEY]: That is correct, but at that point ... Mr. Sterling had been in jail for quite some time, I don’t know the dates, and everyone else had long since been released from jail, pled to probation. I mean by that point he had served enough time that -1 believe he, you know, if he pled guilty tomorrow.... .1 mean the max was like 2 ½ years and I mean he was in jail a substantial amount of time before that to where even if he pled, I don’t, think that would have' changed anything. ... I mean, I don’t—I never told him I’m going to do this if you go make a statement., However, I mean he did make a statement and I mean I’m going to presume that my feeling at that point was that it was the right thing to do,
THE COURT: The only thing different is he gives a statement and the armed robbery gets dismissed. So what [the defendant is] entitled to know is did that statement influence that dismissal of that armed robbery charge because [Mr. Sterling] didn’t plead guilty to the drugs.:.,
[THE PROSECUTING ATTORNEY]: It didn’t have any influence. I can tell you I never communicated anything to Mr. Sterling.
THE COURT: All right, so in other words, he never—as far as you’re aware of—
[THE PROSECUTING ATTORNEY]: I never told him—
THE COURT: —Mr. Sterling was never conveyed if you—that’s what [the defendant] needs to know.
[THE PROSECUTING ATTORNEY]: Correct. And if we could get ... those minutes I could tell you a little more accurately what all happened in that case because obviously it’s been a little while. But in my opinion ... I did not think it was a good case for armed robbery just as I did not think it was a good case against the shooter for murder. And I acted accordingly and pled those cases down accordingly....
|7[DEFENSE COUNSEL]: Your Hon- or, it’s quite a coincidence—
THE COURT: I got all that, but I’m going to let her—you know, she can print her minutes and then you just got to find out from Mr. Sterling what his impression was, you know, and whether or not that was conveyed to him. I mean I take her for her word.
[THE PROSECUTING ATTORNEY]: I never spoke to Mr. Sterling until after he was out of jail. Now I had talked to his attorney and I don’t know if his attorney said, look, I think maybe she’ll do this, you know. And I’m not going to say it’s not related—
THE COURT: No, I’m not—I understand.
[THE PROSECUTING ATTORNEY]: —because I think I probably felt like if this guy is going to help us out he shouldn’t still be sitting in jail when everybody else is home. But I mean like I said, it’s attempted possession is the charge, 2 ½ year max, and he was in jail a good bit. Again, I—
THE COURT: No, the charge y’all dismissed was robbery; it was armed robbery.
[THE PROSECUTING ATTORNEY]: Right, but that was never going anywhere .... I did not think there was sufficient evidence on the armed robbery which is why I let every single person plead to the drug charge except—
[DEFENSE COUNSEL]: See, that’s what—Judge. They don’t produce any of this stuff. They don’t produce anything on armed robbery. We’re hearing it right now. You’re hearing it for the first time.... It was good enough to hold them in jail for 6-6-7 months but it ain’t [ (sic) ] good when he’s going to ... tell these things that I think I need to say and I’m letting him out of jail coincidentally on the day he gives me the statement. I mean I should have had all of that. I should have been able to investigate that so I could adequately defend my [client]—that’s clear Brady to me.

(emphasis added).

In sum, the totality of the record evidence proves that the state failed to timely acknowledge the existence of the reasonable impression of an understanding between the state and Mr. Sterling to the defendant. Like in Lindsey, supra, the state’s failure to appropriately disclose material impeachment evidence to the defendant prevented defense counsel from making the best use of |sthe information through, inter alia, effective and vigorous cross-examination. Thus, turning to the remaining question of materiality and prejudice, it merits emphasizing that this determination must be made reflective of the “overriding concern with the justice of the finding of guilt.” Agurs, 427 U.S. at 112, 96 S.Ct. 2392. The finding of guilt is permissible only if supported by evidence establish-mg guilt beyond a reasonable doubt; hence, if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has occurred, and the defendant is entitled to a new trial. If there is no reasonable doubt as to the defendant’s guilt whether or not the evidence at issue is considered, there is no justification for a new trial. Conversely, if the verdict is already of “questionable validity,” additional evidence of relatively minor importance might be sufficient to create reasonable doubt. Agurs, 427 U.S. at 112-13, 96 S.Ct. 2392.

Here, it seems clear that the state would not have had sufficient evidence to convict the defendant of armed robbery without Mr. Sterling’s testimony. Mr. Sterling testified at trial that the defendant revealed confidential information about the details of the bank robbery that had not been revealed to the public and which only the perpetrator of the robbery could have known. The state did present other evidence against the defendant, including, for example, through the testimony of Travis West, which appears sufficient to tangentially link the defendant to the overall conspiracy. However, as the majority recognizes, none of the witnesses to the armed robbery identified Mr. Sterling as the perpetrator of the crime, and the only DNA evidence introduced at trial linked another individual to the clothing found along the scent trail leading from the scene of the crime. Accordingly, the remaining record evidence does not dimmish the importance of Mr. Sterling’s testimony, especially since where the key issue in a case is the defendant’s identity as the perpetrator,, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentifieation. See State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Therefore, I find the defendant’s second assignment of error has merit. The state’s failure to timely disclose Brady material deprived the defendant of his constitutional right to a fair trial. The defendant is entitled to a new trial.

I respectfully dissent.

      . Charged'in the same bill of information was co-defendant Cedric D, Emerson, who' was found not guilty after these proceedings.

      . The minute entry from defendant’s sentencing indicates that , these sentences have been enhanced pursuant to La. R.S. 15:529.1, but the state did not file a habitual offender bill of information, and the trial court made, no habitual offender finding at the time of sentencing. This "enhancement” is not reflected in the sentencing transcript and appears to be a simple clerical error that tracks what appear to be standardized written reasons for sentencing filed by the trial court. Where there is a discrepancy between the transcript and the minutes, the transcript must prevail. See State v. Lynch, 441 So.2d 732, 734 (La. 1983), The trial court mentioned at the sentencing that defendant was classified as a "first felony offender.” Therefore, there is no habitual offender adjudication in the instant case, and the sentences imposed are legal under the applicable sentencing provisions. See La. R.S. 14:64(B) and 14:64.3(A).

      . We note that in order to challenge the conviction on the basis of insufficiency of the evidence, defendant should have proceeded by way of a motion for postverdict judgment of acquittal rather than a motion for new trial. See La. Code Crim. P. arts, 821, 851, and 858. In the instant case, defendant filed only a motion for new trial, alleging newly discovered evidence. Nevertheless, we will consider a claim of insufficiency of the evidence that has been briefed pursuant to a formal assignment of error. See State v. Dugas, 96-1006 (La.App. 1 Cir. 2/14/97), 691 So.2d 197, 201; State v. Tate, 506 So.2d 546, 551 (La. App. 1st Cir.), writ denied, 511 So.2d 1152 (La. 1987).

      . While the trial court did not note it in the reasons for its verdict, Sterling was incarcerated on the date of the robbery, so he had no personal knowledge of the offense.

      . In Lindsey, 621 So.2d at 626-28, the defendant was permitted to cross-examine the witness about the existence of an actual agreement between her and the state, whereupon the witness attested that she had not been made any promises in exchange for her testimony. In assessing whether the defendant was prejudiced by the failure of the state to disclose impeachment evidence, the court specifically noted that the defendant had been deprived of his confrontation clause rights. The court explained that the failure of the state to disclose the impression of an agreement between the witness and the state limited the defendant’s ability to effectively and vigorously cross-examine the witness—whose credibility was essential to the verdict—and that there was a reasonable likelihood that the verdict would have been different but for the ■ suppressed evidence. Id.

      . Mr. Sterling incorrectly stated in the letter that he was in jail on "principle to first degree murder” charges.

      . Furthermore, the prosecuting attorney in the case against the defendant was not originally assigned to the charges against Mr. Sterling. The trial court recognized this fact after examining the paperwork concerning the charges filed against Mr. Sterling in open court, noting that Mr. Sterling had been charged with armed robbery by bill of information signed by a different Assistant District Attorney with the 23rd Judicial District Attorney’s Office, The trial court asked the prosecuting attorney about this issue, whereupon, the prosecuting attorney acknowledged that the charges against' Mr. Sterling were originally assigned to a different division, but averred that the charges had been transferred to.Jher division after Mr. Sterling’s indictment. The prosecuting attorney explained that she believed the matter had been transferred to her division because of a “co-defendant issue.”


source: Caselaw Access Project

author: Judge Terri F. Love

license: Public Domain

text:
    LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION v. LAA SHORING, LLC, Luis Acosta & ABC Insurance Company Ronald and Antoinette Johnston v. State of Louisiana, Division of Administration, Office of Community Developments Disaster Recovery Unit, Hazard Mitigation Grant Program; Shaw Environmental & Infrastructure, Inc.; LAA Shoring, LLC; Luis A. Acosta; ABC Insurance Company, ACI Construction; DEF Insurance Company; Don A Garland; GHI Insurance Company; Greg Pierson; David Knight; Francis King; Minola Butler; Louisiana Citizens Property Insurance Corporation
    NO. 2016-CA-1136, NO. 2016-CA-1137
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      Wayne J. Fontana, Skye S. Fantaci, ROEDEL PARSONS KOCH BLACHE BALHOFF & MCCOLLISTER, 1515 Poydras Street, Suite 2330, New Orleans, LA 70112—3720, COUNSEL FOR CROSS-CLAIM PLAINTIFF/APPELLANT, LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION
    M. David Kurtz, Brian M. Ballay, Laura E. Carlisle, BAKER DONELSON BEAR-MAN CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE, CB & I GOVERNMENTAL SOLUTIONS, INC.
    W. Nicholas Dietzen, IV, Kevin R. Tully, CHRISTOVICH & KEARNEY, LLP, 601 Poydras Street, 2300 Pan American Life Center, New Orleans, LA 70130—6078, COUNSEL FOR DEFENDANT/APPEL-LEE, STATE OF LOUISIANA, THROUGH THE DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT, DISASTER RECOVERY UNIT
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Terri F. Love

1 ,This appeal arises from damages sustained during the elevation of plaintiffs’ home following Hurricane Katrina. Plaintiffs filed suit contending that the elevation contractor was negligent, as well as the State of Louisiana, who administered the elevation program. Plaintiffs’ insurer, that paid proceeds under their homeowners’ insurance policy, filed a cross-claim against the defendants sued by the plaintiffs. The State of Louisiana filed an exception of no right of action, which maintained that the State was not liable for the contractor’s alleged negligence. The trial court granted the exception of no right of action, dismissing the claims against the'State with prejudice.

Plaintiffs’ insurer appealed, asserting that it was partially subrogated to plaintiffs’ rights, which permitted the appeal. The State filed a motion to dismiss contending that plaintiffs’ insurer did not have a right to appeal without plaintiffs. Plaintiffs’ insurer also avers that the State’s administration of the elevation program was sufficient to negate the exception of no right of action.

We find that plaintiffs’ insurer was partially subrogated to plaintiffs’ claims, which allowed it to exercise appellate rights, and deny the motion to dismiss appeal. Further, we find that plaintiffs’ insurer failed to show that a stipulation | ¿pour autrui existed, as any benefit derived by the plaintiffs from the contract between the State and the elevation contractor was incidental. Lastly, we find that the State did not assume a duty to the plaintiffs. Therefore, the trial court did not err by granting the State’s exception of no right of action. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ronald and Antoinette Johnston own a home damaged by Hurricane Katrina. As a part of the recovery process, the John-stons decided to elevate their home. The State of Louisiana, Division of Administration, Office of Community Development, Disaster Recovery Unit (hereinafter referred to as “State”) administered -the Hazard Mitigation Grant Program (“HMGP”), which provided home elevation grants to homeowners who met certain criteria. The Johnstons received an HMGP grant and selected Luis Acosta with LAA Shoring, LLC (“LAA”) to complete their elevation. LAA was paid $80,000 by the Johnstons from monies received from the HMGP.

The Johnstons then alleged that LAA damaged their home such that the home was uninhabitable. Subsequently, the Johnstons filed a claim with their homeowners’ insurance provider, Louisiana Citizens Property Insurance Corporation (“LCPIC”), for the damage. LCPIC paid the Johnstons $65,230.20 under the policy.

LCPIC then filed suit against LAA, Mr. Acosta, and their insurer, Hermitage Insurance Company, seeking the monies it extended. A few months later, the John-stons filed a suit for damages against the State; CB & I Solutions, Inc. f/k/a Shaw Environmental & Infrastructure, Inc. (“CB & I”); LAA; Mr. Acosta; LAA’sL insurer; ACI Construction; Michael Brown; ACI’s insurer; Don Garland; Garland’s insurer; Greg Pierson; David Knight; Francis King; Minóla Butler; and LCPIC. Once the Johnstons’ petition was filed, LCPIC filed an Unopposed Motion to Transfer and Consolidate its case with the John-stons. The trial court granted the consolidation.

Around the same time as the consolidation, LCPIC filed a cross-claim against the defendants sued by the Johnstons alleging that they were liable via subrogation to LCPIC for the $65,230.20 paid to the Johnstons. The State filed an Exception of No Right of Action contending that the Johnstons’ claims and LCPIC’s cross-claims against the State should be dismissed. The State alleged that the John-stons did not have a contract or third-party beneficiary relationship with the State. The trial court sustained the State’s Exception of No Right of Action, and dismissed all claims against it with prejudice. LCPIC’s devolutive appeal followed.

LCPIC contends that the trial court erred by sustaining the State’s Exception of No Right of Action because the petition asserted a valid cause of action and because the State may have assumed a duty, which would present a fact question for trial.

MOTION TO DISMISS

The State filed a Motion to Dismiss the appeal contending that LCPIC’s appeal is barred, as the Johnstons did not appeal the trial court’s ruling. The State Lavers that La. C.C.P. art. 1673 connotes that the trial court’s judgment as to the Johnstons is final; therefore, the appeal is barred by res judicata. • • ■

“Under Louisiana law, a subro-gated insurer acquires no greater rights than those possessed by its subrogor and is subject to all limitations applicable to the original claim of the subrogor.” Travelers Ins. Co. v. Impastato, 607 So.2d 722, 724 (La. App. 4th Cir. 1992). The Louisiana. Supreme Court found that plaintiffs may tacitly release an obligor by failing to appeal a dismissal with prejudice. Perkins v. Scaffolding Rental & Erection Serv., Inc., 568 So.2d 549, 551 (La. 1990). The insurer then has no rights against' the released obligor, as “the rights of the insurer are not superior to those of the owner.” State v. U.S. Fid. & Guar. Co., 577 So.2d 1037, 1039 (La. App. 4th Cir. 1991). “Thus neither the plaintiff nor anyone seeking to stand in the shoes of the plaintiff through subrogation can have a cause of action against the released party.” Illinois Cent. Gulf R. Co. v. Deaton, Inc., 581 So.2d 714, 716 (La. App. 4th Cir. 1991). The insurer cannot have greater rights than the insured. Perkins, 568 So.2d at 552. Therefore, the insurer is barred from pursuing the subrogation actions pursuant to the doctrine of res judicata. Perkins, 568 So.2d at 553.

Contrariwise, LCPIC maintains that its subrogation rights are only partial, such that its right to pursue an action against the State remains viable. The Louisiana Supreme Court stated that “when an insurer pays his insured only part of the damages to which the insured is entitled from a tortfeasor, the insurer becomes only partially and subordinately subrogat-ed to the insured’s right, and the insured is entitled to exercise his right for the balance of the partially paid claim in preference to the insurer-subrogee.” S. Farm Bureau Cas. Ins. Co. v. Sonnier, 406 So.2d 178, 180 (La. 1981). “Moreover, in a partial subrogation the debt is divided between the subrogor and subrogee, making them either joint or several obligees, and allowing each to exercise his right without prejudice to the other.” Id.

Given that LCPIC tendered proceeds for only a portion of the Johnstons’ damages, we find that LCPIC obtained partial subrogation rights. Consequently, LCPIC and the Johnstons may each exercise their rights without prejudice to the other. Therefore, the Johnstons’ failure to appeal the trial court’s judgment does not preclude LCPIC from appealing. The motion to dismiss is denied.

NO RIGHT OF ACTION

The exception, of no right of action is peremptory in nature. La. C.C.P. art. 927. “The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.” La. C.C.P. art. 928. “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear .from the petition.” .La. C.C.P. art. 931. “If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.” La. C.C.P. art. 934.

“The determination of whether a plaintiff has a right of action is a question of law.” Mendonca v. Tidewater Inc., 03-1015, p. 3 (La. App. 4 Cir. 12/17/03), 862 So.2d 505, 508. “The standard of review of a trial court’s ruling on an exception of no right of action is de novo.” N. Clark, L.L.C. v. Chisesi, 16-0599, p. 3 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1015. “Therefore, this court is required to determine whether the trial court applied the law appropriately.” Mendonca, 03-1015, p. 3, 862 So.2d at 508,

|f,“[A]n action can be brought only by a person having a real and actual interest which he asserts.” La. C.C.P. art. 681. “An exception of no right of action determines whether a plaintiff belongs to the class of persons to whom the law grants the cause Of action asserted in'the petition and whether the particular plaintiff has a real and actual interest in the subject matter of the litigation.” Alderdice v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., 12-0148, p. 7 (La. App. 4 Cir. 7/25/12), 107 So.3d 7, 12. “The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit.” State in Interest of K.C.C., 15-1429, p. 5 (La. 1/27/16), 188 So.3d 144, 146. “[I]t assumes the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interést in the subject matter of the litigation.” Id. “For purposes of the exception, all well-pleaded facts in the petition must be taken as true.” K.C.C., 15-1429, p. 5, 188 So.3d at 146-47.

LCPIC contends that the State and CB & I were negligent in the administration of the elevation program. LCPIC maintains that the Johnstons selected LAA as their contractor because LAA was included on the “HMGP List of Contractors.” Further, the Johnstons alleged in their petition, as incorporated and referenced in LCPIC’s cross-claim, that the State and CB & I were negligent with regard to verifying the licenses and/or contractors on the HMGP list and by failing to inspect and/or supervise the elevation work.

Stipulation Pour Autrui

The Johnstons did not contract with CB & I. However, the Johnstons claimed status as a third-party beneficiary to the contract between the State and CB & I. La. C.C. art. 1978 states that “[a] contracting party may stipulate a benefit for a third |7person called a third party beneficiary.” “Under Louisiana law, such a contract for the benefit of a third-party is referred to as a stipulation pour autrui and gives the third party beneficiary the right to demand performance from the promisor.” Smith v. State Farm Ins. Companies, 03-1580, p. 4 (La. App. 4 Cir. 3/3/04), 869 So.2d 909, 912. “A stipulation pour autrui is never presumed.” Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary, 05-2364, p. 9 (La. 10/15/06), 939 So.2d 1206, 1212. “The party claiming the benefit bears the burden of proof.” Id.

There are “three criteria for determining whether contracting parties have provided a benefit for a third party.” Id., 05-2364, p. 8, 939 So.2d at 1212. First, “the stipulation for a third party” must be “manifestly clear.” Id., 05-2364, pp. 8-9, 939 So.2d at 1212. Second, there must be “certainty as to the benefit provided the third party.” Id., 05-2364, p. 9, 939 So.2d at 1212. Lastly, “the benefit” cannot be “a mere incident of the contract between the promisor and the promisee.” Id. “The most basic requirement of a stipulation pour autrui is that the contract manifest a clear intention to benefit the third party; absent such a clear manifestation, a party claiming to be a third party beneficiary cannot meet his burden of proof.” Id.

The contract between the State and CB & I did not contain a manifestation of clear intent to benefit a third party. The contract was to provide staffing services to help with the administration of the HMGP. Also, there is no certainty as to the alleged benefit to the third party; here, the John-stons. Arguably, the benefit was that the JHMGP was more organized and well-staffed. However, any benefit the John-stons received was merely incidental to the State needing to acquire additional staffing and executing a contract to achieve same. This Court found that contracts entered into by municipalities generally benefit all citizens, but do not constitute a stipulation pour autrui. Albe v. City of New Orleans, 12-0073, p. 8 (La. App. Cir. 7/5/12), 97 So.3d 583, 589. “A person may derive a benefit from a contract to which he is not a party without being a third party beneficiary.” Joseph, 05-2364, p. 12, 939 So.2d at 1214.

Further, the covenant between the State and the Johnstons contained a clause limiting the State’s responsibility. The covenant provided that:

Owner(s) shall be responsible for ensuring compliance with both Louisiana Contractor Licensing Law and the Louisiana Home Improvement Registration Act for mitigation work performed on his/ her/their property. In addition, all mitigation work must comply and adhere to more stringent local requirements, building codes, permitting, ordinances, standards, etc.

Given the above covenant provision and the Louisiana Supreme Court’s requirements for finding a stipulation pour au-trui, we find that LCPIC was unable to affirmatively demonstrate that a benefit provided to the Johnstons was more than incidental. Even accepting all of the well-pleaded facts as true, the three criteria of Joseph were not met. Therefore, as a matter of law, a stipulation pour autrui was not shown. The trial court did not err by sustaining the State’s exception of no right of action.

Assumption of a Duty

LCPIC also asserts that the State assumed a duty, which should overcome an exception of no right of action and be presented to the factfinder.

“Duty is a question of law.” Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984). “Under Louisiana law, one who does not owe a duty to |3act may assume such a duty by acting.” Hebert v. Rapides Par. Police Jury, 06-2001, p. 9 (La. 4/11/07), 974 So.2d 635, 643. “[I]f a person undertakes a task which he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable and prudent manner.” McGowan v. Victory & Power Ministries, 99-0235, p. 4 (La. App. 1 Cir. 3/31/00), 757 So.2d 912, 914.

The Louisiana Supreme Court stated that “an assumption of duty arises when the defendant (1) undertakes to render services, (2) to another, (3) which the defendant should recognize as necessary for the protection of a third person.” Hebert, 06-2001, p. 9, 974 So.2d at 643. “[W]hether such an action was taken involves an examination of the scope of the defendant’s involvement, the extent of the defendant’s authority, and the underlying intent of the defendant.” Hebert, 06-2001, p. 10, 974 So.2d at 644. “However, neither a defendant’s concern with safety conditions and its general communications regarding safety matters, nor its superior knowledge and expertise regarding safety issues, will create a duty to guarantee safety.” Id. “Likewise, inspections and mere safety recommendations, which recommendations are not mandatory and are not within the authority of the defendant to remediate, cannot create such a duty.” Id.

The Johnstons alleged that Francis King, an employee of CB & I/State, provided a list of contractors and was responsible for verifying the licensing and credentials of same. The Johnstons also contended that Greg Pierson, an employee of CB & I/State, should have served as a contractor liaison and overseen the work performed by LAA. However, Mr. Pierson allegedly did not inspect or supervise the work. Subsequently, after construction problems began, David Knight, an employee of CB & I/State, advised the Johnstons to continue working with LAA. Lastly, the Johnstons asserted that the State assumed a duty by agreeing to review |inall elevation projects, maintain required documents, confirm building permits/plans, review calculations, take photos of ongoing work, and inspect the property at the middle and end of construction to comply with HMGP requirements.

Accepting all of the above allegations as true, as required in the examination of an exception of no right of action, we do not find that the State assumed a duty to the Johnstons, as a matter of law. Ensuring compliance with the HMGP and attempting to verify safety information or ensuring adherence to safety standards does not equate with undertaking a duty the State was not already obligated to perform as part of the administration of the HMGP. See Hebert, 06-2001, p. 10, 974 So.2d at 644. Again, the State included the following clause to escape liability in the covenant between the State and the Johnstons:

Owner(s) shall be responsible for ensuring compliance with both Louisiana Contractor Licensing Law and the Louisiana Home Improvement Registration Act for mitigation work performed on his/ her/their property. In addition, all mitigation work must comply and adhere to more stringent local requirements, building codes, permitting, ordinances, standards, etc.

Accordingly, we do not find that the State assumed a duty to the Johnstons. As such, the trial court did not err by granting the State’s Exception of No Right of Action and dismissing LCPIC’s claims with prejudice. The judgment of the trial court is affirmed.

DECREE

For the above-mentioned reasons, we deny the State’s Motion to Dismiss, as LCPIC, a partial subrogoh, has a right to exercise its appellate rights. We also find that LCPIC did not prove the existence of a stipulation pour autmi Further, we do not find that the State assumed a duty to the Johnstons. Therefore, the trial court ludid not err by granting the State’s Exception of No Right of Action and dismissing LCPIC’s claims with prejudice. The trial court’s judgment is affirmed.

MOTION DENIED; AFFIRMED

LANDRIEU, J., CONCURS IN THE RESULT

LOBRANO, J., CONCURS IN THE RESULT

      . The amount listed in LCPIC’s cross-claim.

      . LCPIC filed a Notice of Settlement with this Court on May 22, 2017, providing that it "entered into a binding confidential settlement” with CB & I on March 23, 2017, LCPIC further stated that "the dispute between Citizens and CB & I has been fully and finally resolved.” Accordingly, the portion of this appeal regarding CB & I is pretermitted.

      .- La C.C.P. art. 1673: provides, in' pertinent part: "A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial.”

      . The State avers that the assumption of a duty is not properly before the Court because LCPIC did not present the argument to the trial court. The record reveals this assertion lacks merit. LCPIC included the theory of the assumption of a duty in the Opposition to the Exception of No Right of Action and in the Opposition to CB & I’s Motion for Summary Judgment. The trial court’s reasons for judgment do not reference the assumption of a duty. "It is well settled that a judgment’s silence as to an issue is a rejection of the claim.” DeSoto v. DeSoto, 04-1248, p. 7 (La. App. 3 Cir. 2/2/05), 893 So.2d 175, 180.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. David BOURG
    16-915
    Court of Appeal of Louisiana, Third Circuit.
    06/21/2017
    Rehearing Denied August 23, 2017

      H. Todd Nesom, District Attorney-33rd Judicial District Court, Joe Green, Assistant District Attorney-33rd Judicial District Court, P. 0. Box 839, Oberlin, LA 70655, Telephone: (337) 639-2641, COUNSEL FOR: Plaintiff/Applicant—State of Louisiana
    Chad Guidry, P. 0. Box 447, Kinder, LA 70648, Telephone: (337) 738-2280, COUNSEL FOR: Defendant/Respondent— David Bourg
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   THIBODEAUX, Chief Judge.

liThe State of Louisiana (State) filed a writ application for supervisory review of the trial court’s ruling granting the defendant, David Bourg, a new trial following the jury’s verdict that the defendant was guilty of manslaughter. We docketed the State’s writ application for full briefing and argument. Upon review, we find that the trial court legally erred and abused its discretion in granting the defendant a new trial. Accordingly, we grant the State’s writ application and reverse the ruling of the trial court. We remand this case to the trial court for sentencing of the defendant in accordance with the manslaughter statute, La.R.S. 14:31.

I.

ISSUE

We must decide whether the trial court erred in granting the defendant’s motion for new trial on the grounds that the State failed to prove specific intent beyond a reasonable doubt.

II.

FACTS AND PROCEDURAL HISTORY

• On June 1, 2014, David Bourg drove Michael Pitre home from target practice. While parked in front of Pitre’s mother’s house, Bourg shot Pitre in the head with Bourg’s nine millimeter Ruger handgun, killing Pitre. Pitre did not have a gun. The bullet entered Pitre’s left temple and exited above and behind his right ear. Pitre slumped forward in the passenger seat. The blood from Pitre’s head wound soaked the right edge of the passenger seat in Bourg’s truck and ran into the |2passenger door sill. Bourg immediately lit a cigarette and paced outside his truck with his still-loaded gun and cell phone in hand, attempting repeatedly to call his sister, his sister’s boyfriend, and his brother. He did not attend to Pitre or call 911. Pitre’s brother and his mother heard the shot from Pitre’s mother’s house and went outside. Pitre’s brother saw the gun and sent his mother back inside. She called 911. Pitre’s brother asked Bourg repeatedly to put the gun down so he could lend assistance to his brother.

Police officers arrived, as did Pitre’s son and daughter-in-law, who began CPR. Bourg put the gun to his own head. Officer Frank Restivo arrived first and heard Bourg say, “I will kill myself’ and “I will kill ya’ll.” Officer Restivo and Officer Matthew Hebert ordered Bourg to throw the weapon down at least ten times. Bourg ultimately de-cocked the gun and threw it on the ground. Officer Restivo saw Bourg look toward the weapon again, and he ran at Bourg and tackled him to the ground, briefly, or almost, rendering him unconscious. Officer Restivo is six feet five inches tall and weighs 280 pounds. Bourg’s head and back hit the pavement hard, and his body bounced. Dr. Jude Agendia treated Bourg at Kinder Hospital and noted ecchymosis around the eye, which is bleeding or draining under the skin. Dr. Christopher Tape testified that Bourg’s ecchy-mosis around the eyes was consistent with his head hitting the pavement very hard.

When asked why he shot Pitre, Bourg told the arresting chief of police, Grady Haynes, that Pitre threw his laptop or iPad out of the window. An Allen Parish Grand-Jury charged David Bourg with the second-degree murder of Michael Pitre, a violation of La.R.S. 14:30.1. Two years later, a jury convicted |aBourg, eleven to one, of the responsive verdict of manslaughter, a violation of La.R.S. 14:31.

Defense counsel filed a “Motion for New Trial and/or Motion for Post-Verdict Judgment Granting Acquittal.” The defendant sought the acquittal pursuant to La.Code Crim.P. -art. 821, asserting that there had been insufficient evidence to support his conviction. He requested a new trial pursuant to La.Code Crim.P. art. 851(B)(1) and (5), arguing that the verdict was contrary to the law and evidence and that the ends of justice would be served by the granting of a new trial.

At the hearing on the motions, the defense requested either a new trial or an entry of a post-verdict judgment of “negligent homicide.” The trial court denied the motion for a post-verdict judgment but granted the motion for a new trial. The State filed an application for- supervisory review by this court.'

The State contends that there are issues of law and a showing of an abuse of discretion, which warrant review and are within this court’s jurisdiction. We granted the State’s application for supervisory review and now find that the trial court erred as a matter of law on the issue of specific intent and upon the granting of a new trial.

III.

LAW AND DISCUSSION

The trial for second degree murder lasted six days and ended in June 2016, with a jury’s verdict convicting the defendant of manslaughter. Second degree murder is punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:30.1(B). Manslaughter is 1 ¿punishable by imprisonment at hard labor for zero to forty years. La.R.S. 14:31(B).

At the end of the trial, the jury was instructed to find the defendant “guilty” based upon a finding of the elements of second degree murder, as charged, or the responsive verdict of manslaughter, or the responsive verdict of negligent homicide; or, if the juxy found justification sueh as self-defense, it was to find the defendant “not guilty.'” The jury was given the elements of each offense.

Second degree murder was defined to the jury as “the. killing of a human being when the offender has a specific intent to kill or inflict great bodily harm.” See La. R.S. 14:30.1(A)(1). Manslaughter was defined as “the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” See La.R.S. 14:31(A)(1).

Negligent homicide was defined as the killing of a human being by criminal negligence, which exists when there is “such disregard of the interest of others that the offender’s conduct amounts to á gross deviation below the standard of care expected to be maintained by a reasonably careful person under similar circumstances.” See La.R.S. 14:32. The jury was. further instructed on the definitions of justified homicide and self-defense. The jury returned a verdict of “guilty of manslaughter.”

Hearing on the Defendant’s Motions

The hearing on the defendant’s motion for a post-verdict judgment of either acquittal, or of negligent ■ homicide, or for a new trial, was held three months |safter the June verdict, in September 2016. It appears that-the trial transcript had not yet been prepared and that the trial court did not have the trial testimony for review on the motions. At the beginning of the hearing, Mr. Bourg’s attorney stated, “we are relying completely on the evidence not being sufficient” for the conviction. He very briefly argued, “I think the evidence was clear that there was a fight. I think he was protecting himself and that he didn’t intend to kill Mr. Pitre.” The State’s attorney briefly argued the lack of evidence of a fight and the fact that the defendant shot Mr. Pitre in the head because Mr, Pitre threw his laptop out of the window. He pointed out the absence of any injuries on Mr.- Pitre’s hands indicating that he had punched Bourg repeatedly, 'as Bourg claimed. He also pointed out the undisturbed nature of the items in the truck, indicating that no fight took place. This was essentially all of the argument that was presented.

- -After discussing the evidence in a light favorable to the defendant; the trial court set aside the jury’s verdict of manslaughter, finding that the - State had failed to provide sufficient evidence, proof beyond a reasonable doubt, of the “critical” element of “specific intent.” The trial court stated:

Considering that the burden is on the State to prove every element of a crime beyond a reasonable doubt, and that the specific intent required Of'this crime is one of those'elements, it is the finding of the Court that the forensic evidence creates more than a doubt on the . critical question of specific intent. .

Specific Intent

Specific intent is ultimately a legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982); State v. Lewis; 525 So.2d 215 (La.App. 1 Cir.), writ denied, 531 So.2d 469 (La.1988). “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); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, Lindsey v. Louisiana, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent can be formed in an instant. State v. Harris, 01-2730 (La. 1/19/05), 892 So.2d 1238, cert. denied, Harris v. Louisiana, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382. Specific intent need not be proved as fact; it may be inferred from the circumstances of the transaction and- the actions of the defendant. State v. Graham, 420 So.2d 1126.

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. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, cert. denied, Seals v. Louisiana, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). The defendant does not dispute that his gun was the only weapon in the truck or that he pulled the trigger and fired the bullet that killed Michael Pitre. While not evident in his words or actions at the scene of the crime, Mr. Bourg argued at trial that the gun discharged accidentally while he was defending himself against the victim and trying to use it as a bludgeoning device. But the jury heard much testimony and saw photographic evidence that contradicted the defendant’s assertions.

Sufficiency of the Evidence and Standard of Review

In reviewing the sufficiency of the evidence, an appellate court must determine that the direct and/or circumstantial evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is a question of legal sufficiency of the evidence. State v. Combs, 600 So.2d 751 (La.App. 2 Cir.), writ denied, 604 So,2d 973 (La.1992). This standard of review is applicable to the trial court as well. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). Here, where the trial court found the evidence insufficient but did not view the evidence in the light most favorable to the prosecution, as required by Jackson there was error of law, and the motion must be reconsidered. State v. Chapman, 438 So.2d 1319 (La.App. 3 Cir. 1983).

The trial court began its comments making reference to the State’s theory, but not discussing the State’s evidence, on second degree murder:

The State is not required to prove a motive for a killing. But in the face of the confusing evidence or lack thereof regarding what did transpire in the truck, the State sought to flesh out a theory of specific intent based on anger toward the decedent. This was grounded on defendant’s own testimony and earlier statements to law enforcement that as he and the decedent were approaching their final destination the decedent threw an iPad or a laptop or similar device out of the truck. The State contended that this act enraged the defendant to the point that he reached into the space between the console and his seat, pulled the pistol, and shot the decedent once in the head. The defendant dismissed the idea that he could have been so angry about the loss of the device.

Next the trial court made various comments that were contrary to the defendant’s own testimony and the evidence at trial:

While his denials on the stand can be explained as self-serving testimony, it is true that there is no indication in any of the evidence of the trial that the defendant had a violent or explosive disposition. While it is not part of the trial evidence the Pre-Sentence Report does not contradict that conclusion. The defendant’s criminal record is devoid of any felonies or even misdemeanors, violent or otherwise.

IsThe defendant himself admitted at trial that he had been “ticketed” for fighting, or disturbing the peace, decades before this incident. The record contains a printout showing that David Bourg had four previous arrests before this shooting: an arrest in Allen, Louisiana, in 1989 for disturbing the peace (fight); another arrest in Allen for disturbing the peace in 1991; an arrest in Lafayette in 1992 for refusing to move on; and an arrest in Lafayette in 2004 for a traffic violation. The victim, on the other hand, was revealed to have thrown one single punch in a bar many years before this incident. The only witness called by the defendant at trial was the man who received that punch, Bon Manuel. Mr. Manuel 'testified that while playing pool with Mr. Pitre, Mr. Pitre punched him once, and that was it—nothing more.

The trial court next discussed the defendant’s version of the shooting, omitting crucial details in the record that were part of the State’s evidence:

The version of events based on defendant’s testimony develop a different picture. He testified that it was the decedent who had become inexplicably angry, evidenced by the tossing of the iPad or the electronic device. The defendant had brought his truck to a stop in front of decedent’s mother’s home, where the decedent was staying at the time, when suddenly and without apparent reason the decedent began hitting the defendant full in the face. The defendant does not deny that he pulled the gun from its holster, but claimed that he was trying to use it as a club in self-protection. When pressed by the Assistant District Attorney about whether he meant to fire the weapon or whether it went off accidently the defendant’s responses were generally that owing to the excitement and bizarre circumstances of the moment he did not know.

The trial court did not discuss the State’s evidence at all, much less in a light favorable to the State. For example, part of the referenced “bizarre circumstances” were created by the fact that both men had been drinking quite a bit | sof beer on the day and evening of the shooting. However, the defendant also admitted to having taken the prescription drugs Xanax, Oxycodone, and Roxicodone. Several members of Mr. Pitre’s family testified that Mr. Pitre had a drinking problem and usually drank until he passed out, often having to be helped from someone’s vehicle or helped into bed after falling asleep at the kitchen table. However, testimony revealed that he was never aggressive; he was always home by dark; he did not have a vehicle or a driver’s license; and he worked at a nursing home a few blocks from his mother’s house, as well as doing maintenance work on rent houses in the neighborhood. The testimony overwhelmingly shows that the victim often helped his friends with handyman tasks including plumbing, tinting glass, and working underneath houses where others could not; and those folks would pick him up and bring him home from these projects.

Evidence further showed that there were no drugs in Mr. Pitre’s system when he died, but his blood alcohol level was over two times higher than Mr. Bourg’s (.383 for Mr. Pitre and .123 for Mr. Bourg). Dr. Tape, who performed the autopsy, testified that intoxication at the level of Mr. Pitre’s would have resulted in impaired motor skills, lack of coordination, decreased level of consciousness, and could have caused blurry vision among other effects.

The jury also heard evidence that Mr. Bourg was five feet eleven inches tall and weighed 210 pounds, while Mr. Pitre was five feet seven inches tall and weighed 166 pounds. The jury heard Mr. Pitre’s brother, Brett Pate, testify that when he was finally allowed to go to the truck to get his brother, he physically picked him up and “cradled” him in his arms to carry him into his mother’s yard. The jury also saw closeup photographs of Mr. Pitre’s hands taken, as a matter of professional habit, by Dr. Christopher Tape who conducted the autopsy. There |inwere no scrapes, contusions, broken skin or bruises on Mr. Pi-tre’s hands or his knuckles, even though Mr. Bourg testified that Mr. Pitre had hit him in the face with his fists seven times. While not discussed at all by the trial court, a rational jury could have concluded, in light of all this evidence, that Mr. Pitre was not a reasonable threat to Mr. Bourg and that Mr. Bourg’s assertions were not borne out by the evidence.

Finally, the trial court discussed the evidence regarding the trajectory of the bullet in a light favorable to the defendant, further omitting crucial details, and misconstruing the defendant’s own testimony:

[T]he trajectory of the bullet, which was established by x-rays, physical probes, and expert testimony, supplies the key. If the State’s version is accepted the weapon would have been aimed at a seated Michael Pitre and the trajectory of the bullet would have been somewhat horizontal unless its path was diverted by some force or object, which was not indicated, the bullet would have ended up hitting the window or at least the door on the passenger side. But that is not where the spent projectile was found. It was located in the roof of the cab, nearly centrally located. Integrating this irrefutable physical evidence defendant’s testimony that decedent had aggressively attacked him and was beating on him is supported by the location of the spent cartridge. It indicates that the shot was fired upward toward an assailant. This means that Michael Pitre was out of his seat and was atop the defendant at the moment that the shot was fired. This is also consistent with the medical testimony of the path of the projectile as it entered and exited the decedent’s skull.

The trial court’s summary is contrary to the testimony and the evidence at trial. Mr. Bourg himself testified that Mr. Pitre was not on top of him when the gun was fired. The trial judge said that since there was some blood on the passenger’s side of the console, the top of Mr. Pitre’s head was probably as far as the midline of the console at the time he was shot. Mr. Bourg also testified that |nhe got the gun out of the holster and held it back behind the seat, which indicates that, if Mr. Pitre did reach for the gun, Mr. Bourg had it safely away from Mr. Pitre but chose to bring it back around to the front again. Additionally, the bullet was not centrally located in the roof of the truck; nor did the location of the spent cartridge support an attack by the victim. The photographs showed the bullet hole located in the ceiling toward the passenger door. Crime Scene Investigator Chris Oakes found the spent shell casing on a towel in the middle of the back seat. He testified that it had been ejected to the right when the gun was fired. Although Detective Oakes could not tell the exact angle of the weapon when it was fired, he testified that the gun was fired from the driver’s side of the truck toward the passenger side; the gun was pointed up, and the bullet hole was off toward the passenger side of the vehicle. Detective Oakes further testified that he tested the gun and that the trigger had to be pulled in order for it to fire. When fired, the gun ejected the spent bullet casing to the right.

The jury further heard Mr. Pitre’s brother, Brett Pate, testify that when he opened the passenger door of the truck, his brother was sitting in the center of the passenger seat of the truck, slumped forward, his hands on his legs, palms open and facing inward. Had the victim been attacking the defendant and received the gun shot to the head while over the defendant, .he. would have slumped over the defendant and bled on him and the driver’s seat of the truck.

The jury heard Detective Chris Oakes testify that the only blood inside the truck was on the passenger seat and passenger side of the console. Likewise, the jury saw photographs of the interior of the' truck with blood only on the passenger’s side, with a blood-soaked passenger seat, but soaked only on the right edge of the passenger seat and dripping into the right door’ sill. All of | ^Detective Oakes’s testimony, as well as the defendant’s own testimony, support the conclusion that Mr. Pitre was on the passenger side of the vehicle when he was shot, not on top of the defendant as concluded by the trial court.

The jury also heard the defendant’s own testimony showing that he took deliberate actions that a rational juror could have seen as forming the specific intent to shoot the victim, if not kill him. The defendant admitted that the holster had a strap that had to be unsnapped before the gun could be removed. While the defendant testified that Mr. Pitre reached for the gun, the defendant not only admitted to pulling it from its holster between the driver’s seat and the driver’s side of the console; he admitted to taking the extra step of unsnapping the strap that kept the gun secured inside the holster:

Q. Okay. So, while he is hitting at you, you pushed him back.
A. I pushed him back and I pushed his right hand away and I grabbed the gun with my right.
Q. You grabbed the gun with your right hand.
A. Yes.
Q. Okay. And you had to pull it out of the holster?
A. Yes.
Q. How did ■ you unstrap that? With what hand did you unstrap it?
A. With my thumb.

If Mr. Bourg had wanted to-get away from Mr. Pitre and protect himself, he could have grabbed the entire-holster and thrown it out the driver’s side window or door, and gotten out of the truck. Á rational juror could easily have' found that Mr. Bourg formed the specific intent to shoot the victim when he | ^reached down by his/ seat, unlatched the strap of the holster, pulled the gun from its holster, held it by its stock, not by its barrel, and placed his finger on the trigger. Mr. Bourg himself testified that in order for the gun to fire, the trigger had to be pulled:

Q, For that particular gun, you said that it was not cocked. So, you had to pull the trigger for it to fire, correct?
A. Correct. Even if it was cocked you would have to pull the trigger for it to fire.

The jury also heard Mr. Bourg testify that he thought it was necessary to kill Mr. Pitre at the time; however, he later tried to retract any admission of intent:

Q, Do you believe it was necessary to kill Michael Pitre.
A. To protect myself at that point, yes.
Q. So, you intentionally shot—
A.- I didn’t intentionally shoot him, no.
Q. So, -was this self-defense or was this an accident?
A, It was a combination of both because I was trying to protect myself when the gun accidently went off. I didn’t mean to pull the trigger. You know, it is hard to say, it just' happened.

In addition to evidence that Mr. Pitre was too drunk and too small to harm Mr. Bourg, the jury heard testimony from witnesses who saw Mr, Bourg immediately after he exited the truck, and none of them noticed any disabling limitations or any injuries indicating that he had been attacked. Wesley Pitre, Mr. Pitre’s son who lived two doors from his grandmother, testified that when he | ^arrived at the scene, the defendant was walking around in circles, with no problems walking. Brett Pate testified that the defendant smoked a cigarette and paced around after, exiting the truck with no trouble walking, no appearance of pain, and no injuries to his. face. When officers arrived, they. noticed the same things. From fifteen feet away, Officer Frank Restivo saw no injuries on Mr. Bourg, no difficulty walking; and he was not acting as if he were in pain. Officer Matthew Hebert confirmed that he saw no injuries to the defendant upon his arrival. The only evidence of an injury to Mr. Bourg prior to Officer Restivo’s tackle was Mr. Bourg’s verbal complaint of a chipped tooth and some blood on a cigarette found at the scene. The photographs taken after Mr. Bourg’s arrest show only a very light smudge of blood in the center of the front of his t-shirt. The jury heard repeated testimony indicating that Mr. Bourg’s injuries were the result of being tackled by the six-foot-five-inch, 280-pound Officer Resti-vo, who hit him with all of his force, such that Officer Hebert saw his body bounce off of the asphalt after hitting it.

Other testimony included Oberlin Chief of Police Grady Haynes, who arrived at the scene and was told that Mr. Bourg wanted to see him:

A. And once he was subdued I stayed with the subject, and they [other officers] went to the yard.
Q. Okay. And what did you do then?
A. Just stayed with the subject and tried to listen to what was going on. But I talked to the subject.
Q. Okay, And what did he say?
A. Well, I asked him, who did he shoot. And he said Mike.
Q. Uh huh (yes).
ItfiA And I asked him, I said, well, why did you do that. He said, because he threw a laptop out of the window.
Q, Did he say anything else?
A. ,1 asked him, I say, well, that is not worth shooting anybody oyer, you know. And he told me he tried to kill.himself. And that he wasn’t worth living for.
Q. So, Mr. Bourg said he, Mr, Bourg, tried to kill himself.
A. Yeah. '
Q. Okay. Did he say anything else to you? ...
A. That was it.
Q. Did he say that Mike was trying to or Mike had been hitting him, punching him, anything that?
A. Nothing at all. That was the last thing he said to me.
Q. Did he ever say Mike had the gun, tried to get my gun,—
A. No.
Q.—anything like that?
A. No, sir.
Q. ■ So, he said, he threw my laptop and that was it?
A. Uh huh (yes), :

Even though the defendant now denies the above statements and argues that the shooting was in self-defense and accidental, the jury’s verdict of manslaughter demonstrates that the jury accepted the testimony of the State’s twenty-six witnesses, found intent and provocation in the defendant’s words and actions immediately following the shooting, and rejected the defendant’s trial version of the shooting. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. See State v. Johnson, 99-385 (La.App. 1 Cir. 11/5/99), 745 So.2d 217 , writ denied, 00-829 (La. 11/13/00), 774 So.2d 971. After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved manslaughter beyond a reasonable doubt.

We further note that if the trial court had used the proper Jackson standard and viewed the evidence in the light most favorable to the prosecution and still found the evidence not sufficient to prove specific intent beyond a reasonable doubt, the court would have been required to acquit the defendant on his motion for post-verdict judgment of acquittal, due to the prohibition against double jeopardy. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970; State v. Voorhies, 590 So.2d 776 (La. App. 3 Cir. 1991).

Improper Standard and Analysis in Granting New Trial

The defendant argues that the trial court granted his motion for a new trial based upon a finding that the jury’s verdict was “contrary to the law and the evidence,” which is a statement that the trial court made following its analysis of insufficient evidence to support the conviction on the element of intent. The defendant argues that the granting of a new trial on the basis that the verdict was contrary to the law and evidence is unre-viewable under State v. Guillory, 10-1231 (La. 10/8/10), 45 So.3d 612. This is a reference to La.Code Crim.P. art. 858, which states that appellate jurisdiction cannot be invoked to review the granting or the refusal to grant a new trial in criminal-cases, “except for error of law.” Per Guillory, legal questions and legal errors are always reviewable.

|17As shown above, however, the trial court’s entire analysis was on insufficient evidence of specific intent; the court used the wrong standard for that inquiry as well, and it came to the wrong conclusion; i.e,, that the evidence was insufficient to prove intent beyond a reasonable doubt. Just because the trial court stated at the end of its analysis that the verdict was “contrary to the law and the evidence,” which uses a different standard and a different analysis, without applying the proper standard and the proper analysis, does not remove a legal error or supply an omitted analysis. As succinctly stated by the fifth circuit:

Pursuant to [La.Code] Cr.P. art. 851, the motion for new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied no matter upon what allegations the motion is grounded. In a motion for new trial, the trial judge can only review the weight of the evidence and as such make a factual review as a “thirteenth juror,” rather than under the sufficiency of evidence standard enunciated in Jackson v. Virginia[.]

State v. Badeaux, 01-618, p. 6 (La.App. 5 Cir. 11/27/01), 802 So.2d 905, 908, writ denied, 01-3403 (La. 10/4/02), 826 So.2d 1121.

Weight of the Evidence

As illustrated above, the trial court did not consider the weight of the evidence on both sides. It discussed a very small portion of the evidence, the trajectory of the bullet, in a light favorable only to the defendant; and it misstated the evidence on that issue. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 02-2595 (La. 3/28/03), 840 So.2d 566, and 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The trial court did not discuss or re-weigh conflicting testimony.

The “ ‘weight of the evidence refers to a determination by the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” State v. Jeanlouis, 96-474, p. 9 (La.App. 3 Cir. 11/6/96), 683 So.2d 1355, 1361 (quoting Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982)), writ denied, 96-2822 (La. 4/18/97), 692 So.2d 446. Likewise, the trial court did not discuss a greater amount of credible evidence on either side. In failing to weigh the evidence introduced by both the defendant and the prosecution, or reweigh the evidence as a thirteenth juror sitting as the trier of fact, the trial court again applied the wrong standard for determining whether a new trial should be granted. In so doing the trial court committed legal error and an abuse of discretion. Accordingly, the new trial should not have been granted.

IV.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s ruling granting the defendant’s motion for a new trial. We remand this case to the trial court for the sentencing of Mr. Bourg according to the jury’s verdict of manslaughter under La.R.S. 14:31.

      . Dr. Tape explained that ecchymosis occurs when blood drains away from the area of contact and settles somewhere else.

      . Mr. Bourg testified that he was injured at work in the 1990’s, had had two back surgeries, and had been on disability and not worked since the injury.