author: AMY, Judge.

text:
    Gerald JANISE v. ACADIAN AMBULANCE SERVICE, INC., et al.
    17-1100
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 2018
    Brenda Sibille Piccione, Piccione & Piccione, A.P.L.C., Post Office Drawer 3029, Lafayette, LA 70502-3029, (337) 233-9030, COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Janise
    Tracy P. Curtis, Lewis Brisbois Bisgaard & Smith, LLP, 100 E. Vermillion, Suite 300, Lafayette, LA 70501, (337) 326-5777, COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Janise
    Bart Bernard, Bart Bernard Law Firm, 1031 Camellia Boulevard, Suite 301, Lafayette, LA 70508, (337) 989-2278, COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Janise
    Brad J. Brumfield, Bruce D. Beach, Ryan T. Morrow, Law Office of Keith S. Giardin, 9100 Bluebonnet Centre Boulevard, Suite 300, Baton Rouge, LA 70809, (225) 293-7272, COUNSEL FOR DEFENDANTS/APPELLEES: Acadian Ambulance Service, Inc. William J. Gerard Liberty Mutual Insurance Company
    Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
   AMY, Judge.

This dispute arises from an automobile accident between the plaintiff, Gerald Janise, and William Gerard, who was operating an Acadian Ambulance vehicle at the time of the collision. Following the accident, the plaintiff filed a petition for damages against Mr. Gerard, Acadian Ambulance, and the company's insurer. The jury ultimately found in favor of the defendants, and the plaintiff now appeals. For the following reasons, we affirm.

Factual and Procedural Background

On April 16, 2013, at the intersection of the Evangeline Thruway and Mudd Avenue in Lafayette, the plaintiff, Gerald Janise, was involved in an automobile accident with William Gerard, an operations supervisor for Acadian Ambulance Service, Inc. (hereafter referred to as "Acadian Ambulance"), who was driving a company vehicle. Subsequently, Mr. Janise filed a petition for damages, naming Mr. Gerard, Acadian Ambulance, and their insurer, Liberty Mutual Insurance Company (hereafter referred to as "Liberty Mutual"), as defendants. The petition alleged: "When confronted with a red light ..., William J. Gerard, with wanton disregard and gross negligence, failed to obey the traffic control signal, failed to secure a proper lookout, and failed to proceed through the intersection with caution, thereby causing the collision with Gerald Janise's vehicle." The petition further alleged that, as a result of the collision, the plaintiff sustained bodily injury, particularly to his head, neck, and back. The defendants answered, responding, in pertinent part: "Defendant avers that, by statute, it is entitled to qualified immunity due to the use of the ambulance's lights and siren, and, therefore, may not be held liable in this matter in the absence of gross negligence, which is expressly denied."

Thereafter, the defendants filed a motion for summary judgment, arguing that, under La.R.S. 32:24, which is set forth in pertinent part below, "the driver of an emergency vehicle can be held liable only if his conduct amounts to reckless disregard for the safety of others." They argued that the conditions of La.R.S. 32:24 had been met in this case and, further, that Mr. Gerard's actions did not constitute reckless disregard for the safety of others, such that the defendants were not liable to the plaintiff. The trial court denied the defendants' motion for summary judgment, and the matter proceeded to a jury trial.

At trial, when asked to describe the accident, the plaintiff explained that he was traveling south in the left of three lanes on the Evangeline Thruway and approaching the intersection of the Evangeline Thruway and Mudd Avenue when he "heard something" but "wasn't positive if [he] heard an ambulance or not." He testified that he looked to his right and saw an 18-wheeler in the middle lane and that "nothing was in the back of me or the front of me that I noticed." The plaintiff stated that he noticed that the 18-wheeler was "[s]lowly moving, coming to a stop but slowly moving." The plaintiff was asked whether the "[c]ars moving slowly up to the green light and congested traffic" notified him "that something may have been wrong" or "that it may have been unsafe to go through the intersection[.]" The plaintiff responded, "No." He stated that he saw a green light ahead of him, proceeded into the intersection, and then collided with the Acadian Ambulance vehicle.

Mr. Gerard also recounted the accident at trial. He testified that, prior to the accident, he received a call from dispatch directing him to utilize the vehicle's lights and siren to respond to an emergency. After activating the lights and siren, he explained that he was traveling east on Mudd Avenue and had a red light, as well as other vehicles, ahead of him as he approached the Evangeline Thruway. He stated that he stopped the vehicle when he arrived at the Evangeline Thruway and that he noticed vehicles stopped in the right lane of the Evangeline Thruway, which was the lane closest to him, as well as a "bigger vehicle" or large truck in the middle lane. The "bigger vehicle," as Mr. Gerard explained, was large enough to block "some of" his view of the left lane, which was the lane farthest from him, such that he "could see the entry part-a little bit of the [left] lane" and could see that there was no vehicle stopped in the left lane. He testified that, after observing that there was no vehicle in the left lane and that the traffic in the right and middle lanes had stopped, he started to cross the intersection and was "creeping across ... slowly" at about five to ten miles per hour. Mr. Gerard confirmed that once he began to cross the intersection, he did not stop the vehicle until the accident.

Additionally, the jury heard testimony from Ronnie Angelle, who witnessed the accident. Mr. Angelle explained that at the time of the accident he was operating a tow truck and traveling southbound on the Evangeline Thruway but could not remember in which lane he was driving. He testified that, about a block before arriving at the intersection of the Evangeline Thruway and Mudd Avenue, he heard a siren. He stated that, as he approached Mudd Avenue, "everybody was either slowing down to stop or were stopped" even though the traffic light ahead was green. He testified that he then saw an emergency vehicle to his right on Mudd Avenue and further observed lights on the vehicle. Mr. Angelle testified that he stopped "about four or five car lengths away from ... the stoplight," and noticed a car come from somewhere behind him, enter the intersection while the traffic light was still green, and collide with the Acadian Ambulance vehicle.

After the plaintiff presented his case in chief, the defense moved for a directed verdict, asserting that the record contained support that the conditions of La.R.S. 32:24 had been met, namely that Mr. Gerard was stopped before entering the intersection, proceeded with caution, and used lights and a siren. The defense argued that, because the conditions of the statute had been met, the question was whether the record contained evidence of gross negligence. The defense contended that the record did not contain evidence of gross negligence, such that a directed verdict was proper. However, the trial court denied the defendants' motion for directed verdict. After the defendants presented their case in chief, the plaintiff also moved for a directed verdict, alleging that La.R.S. 32:24 was inapplicable because the defendants had not established that Mr. Gerard was responding to an emergency at the time of the accident. The trial court denied the plaintiff's motion.

The jury ultimately found that Mr. Gerard was responding to an emergency call; that Mr. Gerard proceeded past a red or stop signal but only after slowing down or stopping as may be necessary for safe operation; that Mr. Gerard made use of audible or visual signals sufficient to warn motorists of his approach; and that Mr. Gerard did not act with reckless disregard for the safety of others. In accordance with the jury's verdict, the trial court issued a judgment dismissing Mr. Janise's claims against Mr. Gerard, Acadian Ambulance, and Liberty Mutual, with prejudice. The plaintiff now appeals, asserting the following assignments of error:

1. The jury was clearly wrong when it found [Mr.] Gerard was responding to an emergency call.
2. The jury was clearly wrong when it found [Mr.] Gerard proceeded through a red light but only after slowing down as necessary for safe operation [in] accordance with La.R.S. 32:24.
3. The jury was clearly wrong when it failed to follow the dictates of La.Civ.Code art. 2323 which requires the trier of fact to determine the degree or percentage of negligence of all persons causing or contributing to the injury.
4. The jury was clearly wrong in failing to award general and special damages to Gerald Janise.

Discussion

The plaintiff's first two assignments of error deal with the applicability of the emergency vehicle statute, La.R.S. 32:24, which provides, in pertinent part:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, ... may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
....
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
....
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals ... sufficient to warn motorists of their approach ....
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

In discussing La.R.S. 32:24, the supreme court has explained:

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver's actions fit into subsections A, B and C of La.Rev.Stat. 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver's conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver's actions will be gauged by a standard of "due care."
"Due care" is synonymous with ordinary negligence. "Reckless disregard," however, connotes conduct more severe than negligent behavior. "Reckless disregard" is, in effect, "gross negligence." Gross negligence has been defined by this court as "the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise." State v. Vinzant , 200 La. 301, 7 So.2d 917 (1942). "Reckless disregard" or "gross negligence" is the standard to be applied if the emergency vehicle driver's actions fit La.Rev.Stat. 32:24(A) through La.Rev.Stat. 32:24(C). Otherwise, the standard is ordinary negligence.
Thus, if the provisions of subsections A, B and C of La.Rev.Stat. 32:24 apply to the accident or incident in question, then the driver will be held liable only for his conduct which constitutes reckless disregard for the safety of others.

Lenard v. Dilley , 01-1522, pp. 6-7 (La. 1/15/02), 805 So.2d 175, 180.

Whether the emergency vehicle driver's conduct "should be gauged by a 'reckless disregard' or 'ordinary negligence' standard of care is a question" for the trier of fact. Price v. Valenti , 13-822, p. 6 (La.App. 5 Cir. 4/9/14), 140 So.3d 121, 124, writ denied , 14-0978 (La. 8/25/14), 147 So.3d 1120. Regarding appellate review of factual findings, the supreme court has explained:

In reviewing the factual findings of a trial court, we are limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury , 95-1100, p. 4 (La. 1/16/96), 666 So.2d 612, 615. It is well settled that an appellate court may not disturb a jury's finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab , 96-1027, p. 4 (La. 5/20/97), 693 So.2d 1173, 1176. An appellate court must do more than simply review the record for some evidence which supports or controverts the findings. Stobart v. State of La., through Dep't of Transp. & Dev. , 617 So.2d 880, 882 (La.1993). It must instead review the record in its entirety to determine whether the factual findings were clearly wrong or manifestly erroneous. Id.
Significantly, the issue to be resolved is not whether the jury was right or wrong, but whether its conclusion was reasonable. Id. Thus, this Court, after a full review of the record, may not reverse reasonable findings, even if we had weighed the evidence differently sitting as the trier of fact. Siverd v. Permanent General Ins. Co. , 05-0973, p. 3 (La. 2/22/06), 922 So.2d 497, 500.

Fontenot v. Patterson Ins. , 09-0669, pp. 8-9 (La. 10/20/09), 23 So.3d 259, 267. With this standard of review in mind, we turn to consideration of the plaintiff's assignments of error.

Responding to an emergency call

In his first assignment of error, the plaintiff asserts that "[t]he jury was clearly wrong when it found [Mr.] Gerard was responding to an emergency call." In briefing to this court, the plaintiff argues that the defendants did not prove that Mr. Gerard was responding to an emergency call, such that La.R.S. 32:24 does not apply to this case. In particular, the plaintiff alleges that "the evidence does not support the need for an emergency dispatch" because "[Mr.] Gerard acknowledged that he knew another ambulance had been dispatched and was on its way to the scene." The plaintiff further asserts that the defendants failed to prove Mr. Gerard was responding to an emergency because Mr. Gerard "had been dispatched to check on a child who was hot earlier in the day, but 'is sleeping now, breathing all right.' "

We begin by addressing the plaintiff's argument that the evidence does not support the need for an emergency dispatch because Mr. Gerard testified that he knew another ambulance was on its way to the scene. In his testimony, Mr. Gerard acknowledged that, prior to the accident, he knew an ambulance had also been called to the scene. However, Mr. Gerard explained that part of his job duty as operations supervisor is to respond to calls to which an ambulance is also dispatched to the scene. Further, Mr. Gerard stated that sometimes he arrives at the scene prior to the ambulance and that his truck is equipped with the same supplies as an ambulance, such that he can begin to respond to the emergency before the ambulance arrives. The following colloquy occurred during Mr. Gerard's testimony:

Q. The other part of operations is that you would actually respond to calls that Dispatch sent you to?
A. Yes.
Q. And that's sort of to back up the paramedic or the ambulance?
....
A. Well, sometimes we do arrive after the ambulance and sometimes we may arrive before the ambulance arrives.
Q. Okay. And when you were talking earlier about how the truck is allowed-that you work out of-it has equipment and gauge and things like that, that you can use for emergencies?
A. Everything that an ambulance carries, we have on our truck, just maybe smaller quantities.
....
Q. And what you do then is, you-if you're called, you are sent in tandem, thought [sic], with an ambulance, right? You're never just called on your own. You know that an ambulance is going to the scene as well?
A. Most of the time, not always.
....
Q. Now, the instances where you're also called, in addition to the ambulances, sometimes you might be closer than the ambulance, right?
A. Correct.
Q. And the thought is that you get there maybe to the scene or the caller before the ambulance, right?
A. Correct.
Q. And that helps reduce the response time?
A. Correct.

Considering the foregoing testimony from Mr. Gerard regarding the potential for an operations supervisor to arrive on scene prior to the ambulance and begin responding to an emergency, we find that the record contains evidence to support the jury's finding that Mr. Gerard was responding to an emergency call. See Fontenot , 23 So.3d 259.

We next consider the plaintiff's assertion that the jury was wrong in finding that Mr. Gerard was responding to an emergency call because he was "dispatched to check on a child who was hot earlier in the day but 'is sleeping now, breathing all right.' " As discussed above, La.R.S. 32:24 applies and grants certain privileges to drivers of an authorized emergency vehicle "when responding to an emergency call." For example, in Freeman v. Washington Parish Fire Dist. No. 6 , 15-0273, p. 17 (La.App. 1 Cir. 9/18/15), 181 So.3d 91, 103, the appellant therein similarly contended that the record did not support a finding that the emergency vehicle driver was responding to an emergency call, asserting: "[The emergency vehicle driver] admitted that [the patient] had been non-responsive, without a pulse or heartbeat and not breathing for approximately fifty-five minutes[.]" On appeal, the first circuit stated that the call to which the emergency vehicle driver responded was a "Code 3 medical emergency" for which the emergency vehicle driver was required to activate the vehicle's lights and siren. Id. The first circuit further noted that "[the emergency vehicle driver] admitted that he was of the belief that [the patient] may have already died, given that he was unresponsive at his home and when they placed him in the ambulance. However, he stated that did not give him any authority to downgrade the emergency code under which he was required to proceed." Id. The first circuit ultimately concluded that the record supported the jury's finding that the emergency vehicle driver was responding to an emergency call. Id.

Turning to the facts of this case, Mr. Gerard testified about Acadian Ambulance's response procedure. Like the emergency vehicle driver in Freeman , 181 So.3d 91, Mr. Gerard explained that he does not determine the emergency nature of the situation. Specifically, Mr. Gerard stated: "I don't make the determination on how I respond. I'm directed by my dispatch center, how I respond to calls." In this regard, Mr. Gerard testified that the dispatch center determines and instructs Mr. Gerard whether a call is considered an emergency or "lights and siren" situation. Regarding the call he received prior to the accident at issue herein, Mr. Gerard testified that he activated the vehicle's lights and siren after dispatch instructed him to do so.

Mr. Gerard further testified regarding the specific nature of the call that he received prior to the accident, and the following colloquy occurred:

Q. All right. Well, tell us then, what kind of call were you on?
A. It looked like a three-year-old with a seizure. That's what I can remember.
....
Q. What is that? What else do you remember? Please tell the jury what else you remember.
A. The three-year-old in a car that got hot.
Q. What else?
A. Sleeping now, breathing.
....
Q. You were relying on Dispatch that you needed lights and siren?
A. That's correct.
Q. You were relying on them, Dispatch, Acadian's dispatch, that the call was a legitimate emergency, correct?
A. Obviously, yes.

In his testimony, Mr. Gerard also indicated that the emergency nature of the call is not necessarily ascertainable in advance:

Q. What happens in those cases when it is not a false alarm? Is there any variety in the patients that you encounter in that context where it's not a false alarm?
A. Yes.
Q. Can you tell the jury something about that?
A. Well, sometimes it could be something minor or it could be something life threatening.
Q. Okay.
A. It can be anywhere in between.
Q. And do you know before you get there?
A. No.
....
Q. Have you responded to any calls that you considered less emergent and then found out that was wrong?
A. Yes.
Q. How often does that happen?
A. Every day.
....
Q. Why? And why do you respond to false alarms?
A. Because it could be a true alarm.

Considering the foregoing testimony from Mr. Gerard regarding the instruction he received from dispatch that he was to respond to a "lights and siren" situation, as well as the specific nature of the call, the record contains evidence to support the jury's finding that Mr. Gerard was responding to an emergency call. See Freeman , 181 So.3d 91. See also Fontenot , 23 So.3d 259.

Having reviewed the record in its entirety, we find that the jury's determination that Mr. Gerard was responding to an emergency at the time of the accident was reasonable and was not clearly wrong or manifestly erroneous.

Slowing down or stopping as may be necessary for safe operation

We next consider the second assignment of error in which the plaintiff asserts: "The jury was clearly wrong when it found [Mr.] Gerard proceeded through a red light but only after slowing down as necessary for safe operation [in] accordance with La.R.S. 32:24." As discussed above, an emergency vehicle driver may "[p]roceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation." La.R.S. 32:24(B)(2). For example, in Price , 140 So.3d 121, the emergency vehicle driver testified that, while crossing an intersection at which she had a red light, she was traveling at approximately five miles per hour and had observed a car in the right lane closest to her, as well as an 18-wheeler truck in the middle lane. Id. The emergency vehicle driver "did not see any vehicle prior to entering the left lane" and "also testified that her view was not blocked by the 18-wheeler and that she could see farther down [the] [p]arkway." Id. at 123. A witness "observed the ambulance go through the intersection very slowly, lane by lane." Id. The fifth circuit concluded that the emergency vehicle driver's conduct met the requirement of La.R.S. 32:24(B)(2). Id.

The testimony regarding Mr. Gerard's attempt to cross the intersection is similar to the testimony adduced in Price , 140 So.3d 121. Mr. Gerard testified as follows:

Q. So when you got to Evangeline, you stopped?
A. Yes.
Q. And you looked to your left and saw the three-there were three southbound lanes of Evangeline Thruway-
A. Correct.
....
Q. And you saw to your left multiple cars backed up in the first lane, the lane closest to you?
A. Correct.
Q. And you saw a vehicle in the middle lane?
A. Yes.
Q. And that was the 18-wheeler?
A. I remember it being a bigger vehicle and a passenger car, yes.
Q. So a large truck?
A. Yes.
Q. It is a vehicle that was large enough to block your view of the far left lane, correct?
A. Some of it, yes.
Q. Well, what do you mean, some of it?
A. Well, I could see the entry part-a little bit of the lane. I couldn't do it all-
....
Q. So you could see the very front of the far left lane and you could see that there wasn't a car stopped there or any vehicle stopped there?
A. Correct.
Q. And after you observed the traffic in the closest lane, in the middle lane, had recognized you, you started to cross the intersection, correct?
A. Creeping across, yes, slowly.
Q. Going five to ten miles per hour?
A. Correct.

Additionally, Mr. Angelle, who witnessed the accident, stated that Mr. Gerard "crawled through the intersection, slowly."

Having reviewed the record in its entirety, and considering the testimony of both Mr. Gerard and Mr. Angelle, we find that the jury's determination that Mr. Gerard proceeded through the red light after slowing down or stopping as necessary for safe operation in accordance with La.R.S. 32:24(B)(2) was reasonable and was not clearly wrong or manifestly erroneous.

Failure to determine the degree or percentage of negligence

In his third assignment of error, the plaintiff contends that "[t]he jury was clearly wrong when it failed to follow the dictates of La.Civ.Code art. 2323 which requires the trier of fact to determine the degree or percentage of negligence of all persons causing or contributing to the injury." As discussed above, the supreme court has explained:

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver's actions fit into subsections A, B and C of La.Rev.Stat. 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver's conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver's actions will be gauged by a standard of "due care."

Lenard , 805 So.2d at 180.

Above we have determined that the jury was not clearly wrong or manifestly erroneous in concluding that Mr. Gerard's conduct fit the conditions in subsections A and B of La.R.S. 32:24, namely that Mr. Gerard was "responding to an emergency call" and that he "[p]roceed[ed] past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation." Regarding whether Mr. Gerard was "making use of audible or visual signals ... sufficient to warn motorists" of his approach in accordance with La.R.S. 32:24(C), Mr. Gerard testified that he activated the vehicle's lights and siren after dispatch instructed him to do so, and he explained that a "yelp" siren tone is used at intersections to make the emergency vehicle "more noticeable." Additionally, Mr. Angelle testified that "approaching the intersection, [he] could hear sirens" about a block away and that he "s[aw] the lights" on the Acadian Ambulance vehicle. Considering the foregoing, we conclude that the jury's determination that Mr. Gerard used audible or visual signals sufficient to warn other motorists was reasonable and was not clearly wrong or manifestly erroneous. See Fontenot , 23 So.3d 259. Accordingly, the record supports a finding that Mr. Gerard's conduct met the requirements of subsections A, B, and C of La.R.S. 32:24 when crossing the intersection, and therefore the jury was correct to apply the "reckless disregard" or "gross negligence" standard. La.R.S. 32:24. See also Lenard , 805 So.2d 175.

Furthermore, and in consideration of that standard, we find that Mr. Gerard's actions did not constitute "reckless disregard" or "gross negligence." As discussed above, Mr. Gerard stated that he stopped when he arrived at the intersection and entered the intersection only after observing that there was no vehicle in the left lane and that the traffic in the right lane and the middle lane had stopped. The testimony supported the view that Mr. Gerard "slowly" and "cautiously" crossed the intersection at about five to ten miles per hour in a manner he described as "creeping" and which Mr. Angelle described as "crawl[ing]." Further, Mr. Gerard testified that he "was trying to see if there was a vehicle coming" as he crossed the intersection and that "[a]s far as [he] could see, as [he] was going through it, it was clear[.]" Given that version of events, and as apparently accepted by the jury, we do not find that Mr. Gerard "was grossly negligent in failing to anticipate that a driver ... would ignore (or fail to hear and see) the lights and siren, and also the fact that traffic was stopped around him, and proceed through the intersection without stopping or even slowing down." Price , 140 So.3d at 125. Accordingly, we find no error in the jury's determination that Mr. Gerard did not act with reckless disregard for the safety of others, thus declining to assign a degree or percentage of negligence to Mr. Gerard.

Failure to award general and special damages

In his last assignment of error, the plaintiff argues that "[t]he jury was clearly wrong in failing to award general and special damages to Gerald Janise." In view of our determination that the record supports the jury's finding that Mr. Gerard did not act with reckless disregard or gross negligence and thus should not have been assigned a degree or percentage of negligence, we pretermit consideration of this assignment of error.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court, dismissing Gerald Janise's claims against William Gerard, Acadian Ambulance Service, Inc., and Liberty Mutual Insurance Company, with prejudice. All costs of this proceeding are assessed against the plaintiff, Gerald Janise.

AFFIRMED.

      In his trial testimony, Mr. Gerard explained that, as an operations supervisor, about "50 percent" of his job involves handling administrative duties, while the remaining "50 percent" of his job is spent responding to calls to which dispatch sends him.
      Further, Mr. Gerard stated that, as an operations supervisor, he works in a vehicle, which he described as follows: "On the surface, it's a pick-up truck. It's a little bit more elaborate than that, but it is a pick-up truck." When asked how it is more "elaborate," he testified that the truck contains paramedic equipment, as well as lights and a siren.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Daniel Jeremy ECKERT
    17-848
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Hon. Asa Allen Skinner, Thirtieth Judicial District Attorney, Terry Wayne Lambright, First Assistant District Attorney, P. O. Box 1188, Leesville, LA 71496-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Katherine M. Franks, Louisiana Appellate Project, P. O. Box 1677, Slidell, LA 70459-2341, (985) 847-1212, COUNSEL FOR DEFENDANT/APPELLANT: Daniel Jeremy Eckert
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

Defendant, Daniel Jeremy Eckert, appeals his conviction of second degree murder, a violation of La.R.S. 14:30.1. For the reasons that follow, we affirm.

FACTS

On February 10, 2016, Defendant and his wife, Clarissa, were engaged in a physical altercation at their Anacoco, Louisiana, home. Defendant placed Clarissa in a choke hold, where he held her until she passed out. Sometime between 12:00 and 12:30 a.m., Defendant went to the home of his neighbor, Mr. Justin Kay, and asked if he could use his phone because his wife had hidden their phones. Mr. Kay testified that Defendant told him his wife had been drinking, fell, and hit her head on the wall. Defendant told Mr. Kay that he thought Clarissa had broken her neck. Mr. Kay asked if he should call an ambulance, to which Defendant responded that it was too late, "She's cold." Defendant then called 9-1-1.

Deputy Drew Coleman of the Vernon Parish Sheriff's Office was the first authority to arrive on the scene. Defendant was in his back yard. He told Deputy Coleman that he thought his wife had committed suicide. Deputy Coleman entered the home and found Clarissa seated or propped up beside the bed of the master bedroom. Her eyes were open, but her skin was red-purple. She had what appeared to be blood around her mouth and nose.

To preserve the scene, Deputy Coleman began to take photographs of the body and surroundings. The space in which Clarissa's body sat was very close to a wall. In the course of attempting to photograph the body, Deputy Coleman knocked it over when he disturbed the mattress. He replaced the mattress and repositioned the body where it had been. Deputy Coleman also called his supervisor, Deputy Jerry Twyman, who was already en route.

Detective Misti Bryant led the sheriff's office investigation of Clarissa's death. She testified that after she completed her survey of the scene, she proceeded to the sheriff's office, where Defendant had been taken. After advising Defendant of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Detective Bryant interrogated Defendant, who told her that his wife had begun drinking earlier in the evening. Defendant cooked supper, got the couple's two children ready for bed, then went to bed himself. He woke up around midnight and went to the bathroom and found his wife dead on the floor.

Later, Defendant was interviewed by Detectives Bryant and David Vance. In this interrogation, which lasted about four hours, Defendant stated that his wife had retired to the room of his two children, with "her bottle," to watch a television program. He cooked supper and got his kids ready for bed. He and his two children then got into his bed and began watching a DVD movie. Some time later, according to Defendant, Clarissa then began trying to kick the door in before she realized it was not locked. Clarissa was angry at the couple's daughter, Belle. Clarissa entered the room and began to hit and shake Belle. Wyatt, Belle's younger brother, attempted to intervene, but Clarissa hit or pushed him off the bed. At that point, Defendant told the investigators, he seized Clarissa from behind in a choke hold, which he maintained until, he thought, Clarissa passed out. Defendant left Clarissa passed out on the floor and restarted the movie. Later, he awoke and saw that Clarissa was still on the floor. At this point, he discovered that she was dead. He then went to Mr. Kay's home and called 9-1-1.

Belle was interviewed at the Rapides Children's Advocacy Center in Alexandria. Detective Bryant was present, but Bethany Branim conducted the interview. She told the interviewer that her mother entered the room as Belle, her dad, and brother were watching a "dragon show." Clarissa entered the room and started kicking Belle, telling her to get out of the bed and go to her room. Then Clarissa began hitting Defendant. Defendant then grabbed Clarissa and was "holding on (gestures) to her neck really long and she stopped. ..." Belle later stated that Defendant held Clarissa for ten seconds. After Clarissa stopped moving, Defendant told Belle that Clarissa was asleep, but Belle thought her mother was dead. She unequivocally identified Clarissa's drinking and behavior as the catalyst for the violence, attributing it to Clarissa's consumption of vodka and Coke. "And when she drunk it every time, she started to be bad and be mean."

A Vernon Parish grand jury indicted Defendant for second degree murder. Several discovery motions were filed by Defendant and the State. The State filed a notice of its intent to introduce evidence of prior domestic violence incidents pursuant to La.Code Evid. art 404.

In response to discovery requests, Defendant identified Rich Clementi and Matthew Larsen as potential expert witnesses. These men were identified as experts in the "naked choke hold." The State moved for a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Larsen testified that he joined the United States Marine Corps in 1984. While stationed at Marine Barracks Tokyo, he began training in martial arts. This training continued throughout Larsen's duty with the Marine Corps. After leaving the Marine corps, Larsen enlisted in the United States Army. While in the Army, Larsen convinced his then-commander, Stanley McChrystal, that the prevailing methods of hand-to-hand combat training were insufficient. Larsen was tasked with developing new methods, which resulted in Larsen being named Battalion Master Trainer. Larsen went on to become the Regimental Trainer for an Army Ranger Regiment at Fort Benning, Georgia, then Brigade Trainer for an entire Ranger Brigade.

In 2002, Larsen re-wrote the Army Field Manual for hand-to-hand combat. This manual was used to train every active-duty, reserve, and National Guard soldier. Larsen re-wrote the manual in 2009, after he had retired from the Army and had been hired by the Army as Director of its Combatives Program. Mr. Larsen continues to train soldiers, law enforcement officers, and private individuals.

Larsen was questioned about the "rear naked" choke hold. This is a hold taught in hand-to-hand training in the Army. One combatant attempts to restrict the blood flow to the brain by applying pressure to one side of the neck with his biceps and to the other with his forearm, effectively forming a "V" with his arm. The hands are clasped, allowing the holder to apply force with his back muscles. This usually results in the person being held losing consciousness in between ten and twelve seconds, according to literature from the United States Judo Association. After the hold is released, consciousness will return as the blood flow is restored. The hold is called "naked" because it does not rely upon using the held person's clothing to gain mechanical advantage.

The rear naked choke hold is taught in judo to students as young as twelve. The hold is considered a legal hold in Olympic judo competition, as well as in jiu-jitsu and mixed martial arts competitions. The rear naked choke has been taught in the Army since 1905.

On cross-examination, Larsen admitted that he had met Defendant the day of the hearing. In preparation for the hearing, Larsen reviewed the statements given by the witnesses to Clarissa's death. Larsen opined that Defendant employed a rear naked choke hold on Clarissa primarily based upon Belle's description of the incident. He also opined that a rear naked choke hold was used based upon the lack of damage to Clarissa's neck area. Larsen possesses no specialized medical training beyond the type of trauma medicine taught Army Rangers, nor does he have any forensic training. While he did not necessarily opine that the choke was used correctly Larsen was careful to state that it was not used incorrectly, which would be indicated by damage to Clarissa's esophagus. Larsen has been accepted by a military court as an expert in hand-to-hand combat.

At the close of his testimony, Larsen was offered by Defendant as "an expert in martial arts, specifically, the application of the rear naked chokehold." The trial court granted the State's motion to exclude Larsen as an expert because it did not feel that he was qualified to opine whether the application of a rear naked choke resulted in Clarissa's death. Accordingly, the trial court denied Larsen qualification as an expert witness.

Defendant's jury trial commenced on April 3, 2017. Detectives Bryant and Vance testified as set forth above. Belle testified that "everyone" was asleep in her parents' bed when Clarissa suddenly slapped Defendant in the face. Defendant attempted to slap her back, but instead hit Belle. Belle's parents then started fighting and rolled off the bed, and Defendant began to choke Clarissa on the floor and stopped when he thought she was "asleep." Belle had no recollection of her interview at the Rapides Children's Advocacy Center. That interview was played for the jury.

The State called Dr. Terry Welke, forensic pathologist at the Calcasieu Parish Forensic Center, who performed the autopsy on Clarissa's body. Dr. Welke catalogued the many signs of trauma he noted to Clarissa's body, including bruising on both sides of her head, her chin, breasts, and neck. He opined that Clarissa died from asphyxia, which is a deprivation of oxygen from the brain. There are several means of succumbing to asphyxia, including strangulation, suffocation, exposure to toxic gases, and "positional asphyxia," which occurs when a person becomes incapacitated and falls into a position in which the chin is too close to the chest.

Dr. Welke submitted Clarissa's blood for toxicological analysis. Clarissa's blood demonstrated an alcohol concentration of .277 grams per deciliter of blood, roughly four times the limit for intoxication while driving. Clarissa's blood also contained a high level of Hydroxyzine, a sedative. Clarissa's blood measured 477 nanograms per milliliter, and the "normal level is up to 80." "And, so, that means it was elevated. And did she have any reaction to that, I don't know, possibly, maybe a little drowsiness, and in combination with the alcohol, probably so." Dr. Welke did not feel that the hydroxyzine and alcohol combination would have been potentially lethal. Dr. Welke would not express an opinion whether Hydroxyzine can cause seizures.

In Dr. Welke's opinion, whether Clarissa asphyxiated from suffocation or strangulation or positional asphyxia as a result of her being rendered unconscious from a rear naked choke hold was of small import, because all three would be actions of another person that led to her death, which meant that the death was a homicide. He did concede that all of his findings are consistent with positional asphyxia.

On cross-examination, Dr. Welke agreed that bruising can be caused by a number of things, including, in the case of someone with a high alcohol concentration, simply falling down or bumping into objects. He also agreed that Clarissa's neck exhibited no damage to its internal structures. Dr. Welke was familiar with a rear naked choke hold, which he termed a "carotid sleeper," and demonstrated the hold to the jury. In a rear naked choke hold, the choking arm does not close the airway but compresses the blood vessels on the sides of the neck. This hold can result in unconsciousness when applied for between ten and fourteen seconds. A person placed in a carotid sleeper for ten seconds would not die from it. If that person was then sat upright leaning against a bed, she would not likely succumb to positional asphyxia.

Defendant called two witnesses to testify. Vernon Parish Chief Deputy Coroner Sharon Green testified as to her crime-scene examination of Clarissa's body. She noted that Clarissa's tongue had been bitten as though Clarissa had experienced a seizure. Nonetheless, Deputy Coroner Green felt that Clarissa's death was a homicide.

Defendant's second witness was Dr. Cary J. Sharp. Dr. Sharp is an emergency physician in Zachary, Louisiana. In preparation for his testimony, Dr. Sharp reviewed the autopsy report, coroner's report, toxicology report, and documented injuries. He also reviewed several published studies related to positional asphyxia. Dr. Sharp has not been trained in forensic pathology. He had been involved in cases of positional asphyxia that were brought to the emergency room.

The State objected to Dr. Sharp's qualification as an expert on the basis of his lack of education and experience. The trial court ruled that an emergency room physician was not qualified to deliver expert testimony of the nature Defendant sought to elicit from Dr. Sharp regarding positional asphyxia. Defendant then sought to offer Dr. Sharp as an expert on the issue of the effects of the combination of alcohol and Hydroxyzine on the human body. The State objected to this qualification of Dr. Sharp as well, arguing that the defense violated the Louisiana Code of Criminal Procedure articles dealing with discovery of expert reports and anticipated testimony. Specifically, the defense had listed Dr. Charles Mize as an expert who would opine that Clarissa died from a combination of alcohol and Hydroxyzine that resulted in positional asphyxia. The trial court refused to allow Dr. Sharp to deliver expert testimony because of his lack of experience in death investigations and on the grounds that posing purely hypothetical questions, as Defendant sought to do, would confuse the jury.

Following the disqualification of Dr. Sharp, Defendant rested his case. Defendant exercised his right to not testify. The jury returned a unanimous verdict finding Defendant guilty of second degree murder.

ASSIGNMENTS OF ERROR

Defendant contends that the trial court committed the following errors:

1. The evidence is insufficient to demonstrate that Daniel Eckert possessed the specific intent to kill or to inflict great bodily harm.
2. The trial judge erred in denying expert status to two proffered defense witnesses.
3. The actions of the trial judge denied Mr. Eckert his right to present a defense.

ANALYSIS

Sufficiency of the evidence

In State v. Hearold, 603 So.2d 731 (La.1992), the Louisiana Supreme Court stated that when issues of sufficiency of the evidence and other errors are asserted, the issue of sufficiency of evidence should be addressed first. We stated, in State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371 (citations omitted):

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson [v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ] standard of review. In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Second degree murder is defined in La.R.S. 14:30.1(A)(1) as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. "Specific intent is the 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." State v. Carroll, 95-859, p. 4 (La.App. 3 Cir. 1/31/96), 670 So.2d 286, 288. Specific intent may be inferred from the circumstances of the case and the defendant's actions. Id.

Defendant argues that Belle's testimony establishes that he only choked Clarissa for ten seconds. This, Defendant contends, shows that he lacked specific intent to kill or inflict great bodily harm. The State, on the other hand, argues that La.R.S. 14:34.1, defining the offense of second degree battery, defines "serious bodily injury" as "bodily injury which involves unconsciousness. ..." Because La.R.S. 14:30.1 does not provide a more precise definition of "great bodily harm," we rely upon the legislative expression in defining "serious bodily injury" as a guide in defining "great bodily harm." We do not need to reach this question.

Defendant's interrogation in which he stated that he held the choke hold for ten seconds was played to the jury. Belle's statement to Ms. Branim at the Rapides Children's Advocacy Center was also presented. These both contain references to "ten seconds." However, Belle also stated that Defendant held Clarissa in the hold for a "really long" time. Belle's testimony, as viewed from the stale transcript, can reasonably be read to contrast quite vividly from her previous statement:

Q. Okay, and do you remember how long that he was on the floor choking her?
A. No, sir.
Q. Okay.
A. When um, he' d been choking her, I didn't know time.
Q. Okay. So, when you think back on it, is it something that you're not able to say how long it went on?
A. Yes, sir, I-I definitely didn't know what time was.
Q. Okay.
A. But now I do know what time is.
Q. Okay. When you're watching your mom and dad fight did it seem like to you it went on for a long time?
A. It looked like it was kind of long.

Further along in Belle's testimony, she stated:

A. She's like, "get off, Dan, get off."
Q. Okay, so she said it to him. She didn't scream it at him, is that right?
A. She yelled at him.
Q. Okay. And did he get off?
A. No, he kept on choking her 'til she, um, was dead, but he thought she was alive still and asleep. But-

Even if, as Defendant suggests, Clarissa was the aggressor in this confrontation, a reasonable jury could find that she was attempting to withdraw, surrender, or otherwise cease the confrontation, based on Belle's testimony. Thus, any force employed thereafter ceases to constitute self-defense. See La.R.S. 14:20. Further, Defendant's assertion that the evidence demonstrates that the choke hold was only applied for ten seconds is not wholly correct; some evidence suggests that, but by no means all. Belle's actual testimony did not establish a ten-second limit to Defendant's choke hold. And a reasonable jury could conclude that a six-year-old child might possess a tenuous grasp of concepts of time.

The elements of second degree murder, as set forth above, are a killing of another with intent to kill or inflict great bodily harm. There is no dispute that Defendant applied a choke hold to his wife; the only question for the jury to decide was his intent. Given the facts elicited at trial, viewed in the light most favorable to the prosecution, including the history of abuse-on the part of both Defendant and Clarissa-in the relationship, the application of a choke hold by Defendant on Clarissa after she seemed to signal her intent to withdraw from the confrontation, and the disputed length of time the choke was applied, we conclude that a rational trier of fact could have found every element of the crime proven beyond a reasonable doubt. This assignment of error lacks merit.

Exclusion of Matthew Larsen's testimony

The decision to accept or reject a witness as an expert lies within the great discretion of the trial court and will not be overturned unless that discretion was abused. State v. Edwards , 97-1797 (La. 7/2/99), 750 So.2d 893, cert. denied , 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). The threshold necessary for the introduction of expert testimony is set forth in La.Code Evid. art. 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.

There is no question in our minds that Larsen is an expert in hand-to-hand combat; he literally wrote the book on the subject. However, simply being an expert on a subject does not make one's opinion testimony admissible. The first test of admissibility of opinion testimony is whether it "will help the trier of fact understand the evidence or to determine a fact in issue."

We have already noted that significant discrepancies existed in the accounts regarding the length of time the hold was placed on Clarissa. Larsen's opinions were predicated upon the ten-second application of the hold. A ten-second hold would not be lethal; a longer hold could be. Larsen was not going to state that the hold was correctly applied by Defendant, but was instead going to testify that it was not applied incorrectly. Whether the hold was correctly or incorrectly applied, however, was not the issue. How long it was applied was the central inquiry, for upon that inquiry lay the determination of the cause of Clarissa's death and Defendant's intent in applying the hold, be it to calm her, incapacitate her, or kill her.

A trial court's decision to not receive the testimony of an expert witness will rarely result in reversal. State v. Craig , 95-2499 (La. 5/20/97), 699 So.2d 865, cert. denied , 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). This is particularly true where, as in this case, the question of whether a ten-second rear naked choke would result in death was not disputed. Dr. Welke confirmed that it would not. Accordingly, even if we were to conclude that the trial court erred in not admitting Larsen's testimony, that error would be deemed harmless. This assignment of error lacks merit.

Exclusion of Dr. Cary J. Sharp's testimony

Dr. Sharp had been an emergency room physician for twenty-two years at the time of trial. Other than cases that presented to his emergency room, Dr. Sharp had no experience in death investigations. He had not received training in forensic pathology. Defendant asserted at trial and in brief that the questioning of Dr. Sharp would have been limited to hypothetical questions related to positional asphyxia and the effects of the alcohol-Hydroxyzine combination. The trial court refused to allow this testimony on the basis that it felt Dr. Sharp was not qualified and that such questioning would confuse the jury.

Even were we to conclude that we would have allowed Dr. Sharp's testimony, we can only overturn the trial court's decision if we conclude that the trial court abused its discretion in refusing to allow the testimony. Edwards , 750 So.2d 893. In the present case, given the other evidence in the case and the lack of evidence regarding positional asphyxia, we find no abuse of the trial court's discretion. With regard to the effects of the alcohol-Hydroxyzine combination, we agree with the trial court regarding the potential for confusing the jury. Those effects are relevant to the issue of positional asphyxia, which we have already addressed, and that of whether Clarissa might have suffered a seizure that caused or contributed to her asphyxia. While there was some evidence that she might have suffered a seizure, primarily the bitten or clenched tongue, a critical inquiry of whether to allow expert opinion testimony is the foundation of that testimony in sufficient basis in fact or data. We cannot say the trial court erred in this regard.

Assignment of error three

Defendant maintains that the exclusion of Larsen and Dr. Sharp as expert witnesses denied him a meaningful opportunity to mount an defense:

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, supra [ 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967) ; Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S.[ 479], at 485, 104 S.Ct. [2528,]at 2532[ 81 L.Ed.2d 413 (1984) ] ; cf. Strickland v. Washington, 466 U.S. 668, 684-685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) ("The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment"). We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507-508, 92 L.Ed. 682 (1948) ; Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and "survive the crucible of meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984). See also Washington v. Texas, supra, 388 U.S., at 22-23, 87 S.Ct. at 1924-1925.

Crane v. Kentucky , 476 U.S. 683, 690-91, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636 (1986). Given our discussion above relative to the exclusion of Larsen's and Dr. Sharp's testimonies, we conclude that no "competent, reliable evidence" was excluded at trial. Id.

DECREE

Defendant's conviction is affirmed.

AFFIRMED.

Perret, Judge, dissents and assigns reasons.

PERRET, CANDYCE, J. DISSENTS WITH REASONS:

I respectfully dissent from the majority opinion that affirms Defendant's conviction of second degree murder. Specifically, I disagree with the majority opinion that affirms the trial court's ruling excluding Matthew Larsen as an expert witness on choke holds and its finding that "even if we were to conclude that the trial court erred in not admitting Larsen's testimony, that error would be deemed harmless." Rather, I find that the exclusion of Mr. Larsen's testimony denied Defendant his constitutional right to present a defense, a defense that wanted to explore potential causes of death other than strangulation. For the reasons stated below, I would reverse Defendant's conviction and grant a new trial.

Defendant offered Mr. Larsen as "an expert in martial arts, specifically, the application of the rear naked choke hold" to support his theory that he countered his wife, Clarissa's, attack on him and their child, with non-lethal force, and that it was due to her drugged and intoxicated state that she fell to the floor where she died of positional asphyxia. At trial, the State also suggested an alternative theory that Clarissa died from positional asphyxia due to the way she was left by Defendant-in a seated position with her back against the bed. Thus, the defense in this case was based on showing that Defendant did not intend to kill his wife. Because the defense was not allowed to present Mr. Larsen's testimony, it was unable to address the weaknesses in the State's case.

While the trial court has wide discretion to allow or exclude the testimony of an expert witness, if clearly erroneous, it can be reversed. See State v. Higgins , 03-1980 (La. 4/1/05), 898 So.2d 1219, 1239-40, cert. denied , 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Under La.Code Evid. art. 702 (emphasis added), "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion ... if: (1) [t]he expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue ...."

Although the majority finds "[t]here is no question in our minds that Larsen is an expert in hand-to-hand combat" it agrees with the trial court that Mr. Larsen was not qualified to opine whether the application of a rear naked choke hold resulted in Clarissa's death. I find that Mr. Larsen's testimony was not being offered to show that the choke hold did not cause her death but rather was being offered to show that the choke hold, if administered properly and for the time both Belle and the Defendant stated, would only cause unconsciousness and not death. I find this evidence would have helped the trier of fact to better understand the evidence, especially considering Coroner Green's testimony that: (1) Clarissa's tongue had been bitten as though she had experienced a seizure; (2) Clarissa's death was due to asphyxia ; and (3) Clarissa had no apparent damage to her esophagus as a result of the hold. I find that Mr. Larsen's opinion that if the choke hold had been administered for only 10-12 seconds, it would not have caused the death of Clarissa, but only unconsciousness, could have supported Defendant's theory that he did not intend to kill his wife. I also find that the use of a non-lethal choke hold is outside the knowledge of the average lay juror.

Because the defense theory, if properly presented, could have sufficiently planted a reasonable doubt in the jury's mind, the exclusion of this evidence was not harmless beyond a reasonable doubt. Accordingly, I find the trial court clearly erred in denying Mr. Larsen's testimony and that Defendant was denied his constitutional right to present a defense to support his argument that he did not intend to kill his wife but only to subdue her.


text:
    STATE of Louisiana v. Anthony JACK aka Anthony Kwonskiee Jack
    17-856
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Edward K. Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Anthony Jack
    Trent Brignac, District Attorney, Julhelene E. Jackson, Assistant District Attorney, Post Office Drawer 780, Ville Platte, LA 70586, (337) 363-3438, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
   AMY, Judge.

After a deputy was dispatched to a residence, the State charged the defendant with one count of resisting an officer with force or violence and one count of aggravated battery. Following jury selection, one of the jurors notified the court that she was related to the defendant's grandmother, and the trial court excused the juror and replaced her with an alternate. The defendant moved for a mistrial, which was denied, and the jury ultimately convicted the defendant as charged. The defendant now appeals. For the following reasons, we affirm.

Factual and Procedural Background

After being dispatched to a residence in reference to an "Unauthorized Use complaint," Deputy Joshua Uhlman of the Evangeline Parish Sheriff's Office included, in pertinent part, the following narrative in his complaint report:

Upon arrival I spoke to Mr. Julius Thomas who stated that his girlfriend's grandson Anthony Jack took his car without permission but pulled back up in the car before my arrival....
I then turned to Anthony, who was standing on the side of the yard and advised him to come see I need to talk to him. He then put up his hands in a fighting position and kept saying "I will whip your ass". I advised him to stand down and to place his hands behind his back but he took off running. I then gave chase on foot and radioed into dispatch to send another unit. While running, Anthony picked up a glass bottle that was lying in a yard and threw it towards me. I was able to move out the way of the bottle. The foot chase then continued into a yard ... and that is when Anthony picked up a long board and swung it towards me hitting me in my left side of my chest with it causing me to fall backwards. Anthony then came towards me with the board while I was on the ground and attempted to hit me in my head with the board. I then drew my service weapon and aimed it at Anthony and gave the verbal command to drop the board. Anthony complied with the order and I was able to get back up and I reholstered my service weapon and pulled out my impact baton and gave the verbal command to stop resisting and get on the ground. Anthony refused and took a swing at me with a closed fist. He missed then stated "I will shoot you" and picked up his right hand and made a gun gesture towards me. I then swung my impact baton striking him ... and he took off running again. I then gave chase again and was able to catch up to him. Anthony then stopped and attempted to swing at me with a closed fist again but missed. I then gave the command to stop resisting but he refused to comply. I then struck Anthony ... and that is when [Deputy] Kent Vidrine arrived to assist. Anthony was still resisting and [Deputy] Vidrine administered a short 2 second burst of Pepper Spray. At this point [Deputy] Joshua Estes also arrived and Anthony was taken into custody.
Anthony Jack was transported to the Evangeline Parish Jail by [Deputy] Estes. While in transport to the jail, Anthony spit on [Deputy] Estes in the patrol unit and started to fight with [Deputy] Estes in the patrol unit.

On March 10, 2014, the State filed a bill of information by which the defendant, Anthony Jack, was charged with two counts of resisting an officer with force or violence; two counts of aggravated battery; and one count of aggravated assault. Subsequently, the bill of information was amended three times. The third bill of information, upon which the State proceeded to trial, charged the defendant with one count of resisting an officer with force or violence, a violation of La.R.S. 14:108.2(A)(3), and one count of aggravated battery, a violation of La.R.S. 14:34. The defendant pled not guilty, and a jury trial began on April 3, 2017.

On April 4, 2017, on day two of the trial, Juror # 1, Elizabeth Bellard, approached the bailiff about some concerns she had. Referring to the defendant's grandmother, whom she said she had observed in the courtroom, Ms. Bellard notified the trial court: "I know the lady ... [my brother, my sister, and I] call her Aunt Annie." When asked whether she knew the defendant and whether she knew if she was related to the defendant, Ms. Bellard answered, "I don't know him" and "I don't [know] but if that's his grandmother then we['re] related." The trial court followed up by asking Ms. Bellard whether that would affect her ability to be fair and impartial to which she responded, "Yes it will." The trial court instructed Ms. Bellard not to speak to the other jurors while the court and the attorneys discussed the matter.

Subsequently, Juror # 5, Rebecca Fontenot, was interviewed by the court and explained that Ms. Bellard is her aunt. Ms. Fontenot indicated that Ms. Bellard had just told her about Ms. Bellard's relationship to the defendant's grandmother. When asked whether she was related to the defendant's grandmother or the defendant, Ms. Fontenot responded: "I've never seen her or him before." The trial court asked Ms. Fontenot whether this affected her ability to be fair and impartial, and Ms. Fontenot answered, "no." Additionally, the trial court asked Ms. Fontenot if she could judge the case strictly based on the evidence and if she would be fair to both sides, to which she responded, "Yeah."

Following Ms. Bellard's revelation, defense counsel stated:

I would have picked my jury differently if I would have known she would have been challenged for cause. Okay it changed the way I used my back strikes ... changed the makeup of the jury. I tried to make the makeup as close to the actual community[.]
....
[Mr. Jack] deserves [a] jury of his peers[.]

In particular, defense counsel argued that to remove Ms. Bellard from the jury and replace her with the alternate would change the racial composition of the jury. However, citing Ms. Bellard's testimony that she could not be fair and impartial, the trial court notified the parties of its decision to excuse Ms. Bellard from the jury and replace her with the alternate juror. Defense counsel objected, asserting: "[W]e feel that we have suffered substantial prejudice to our case and the jury panel is no longer a jury panel we freely choose chose [sic]."

Thereafter, defense counsel moved for a mistrial, arguing:

[S]he tainted the jury if she lied in Voir Dire and I picked a six man jury based on her lies then it taints my own jury pool and I should get to pick a new jury that's more fair to my client and more representative to a jury of his peers.

The trial court denied the defendant's motion, stating:

I don't believe that Ms. Bellard made an intentionally false statement on Voir Dire because when she came in here she admitted that she just found out that she maybe [sic] related. Number two I don't believe that it would prevent a fair trial. Everybody picked the jury there was one removed and had Ms. Bellard stated that last time it may or may not have affected how you ... chose your jury but the fact is I don't know that it would of [sic] affected anything. So I don't believe that it prevents a fair trial ... the jury is still made up of a cross section of the community female, male, white, and black and I don't believe the mere argument of race at this point shows any actual racial issues that have come up.... so motion denied.

Defense counsel asked the trial court to instruct the remaining jurors to disregard any conversations and interactions that they might have had with Ms. Bellard, but the trial court denied this request too. On April 4, 2017, the jury convicted the defendant as charged. Defense counsel moved for a judgment of acquittal, which was denied by the trial court.

On April 21, 2017, after the defendant was convicted of resisting an officer and aggravated battery but before the sentencing hearing on those charges, the State filed another bill of information under the same docket number. The bill of information charged the defendant with battery of a police officer, a violation of La.R.S. 14:34.2, and aggravated assault, a violation of La.R.S. 14:37. According to the minutes, the defendant ultimately pled guilty to these charges and was sentenced to serve six months on each charge, with the sentences to run concurrently. Additionally, a fine, court costs, and other fees were imposed.

On June 22, 2017, the trial court sentenced the defendant to three years at hard labor and a fine of $1500.00 for resisting an officer with force or violence and to seven years at hard labor and a fine of $2500.00 for aggravated battery, with the sentences to run concurrently. Thereafter, the defendant filed a "Motion of Amendment of Sentence"; a "Motion and Order to Reconsider Sentence"; and a "Motion To Correct A[n] Illegal Sentence." The trial court denied the motions. The defendant now appeals, asserting the following assignment of error: "The trial court erred in failing to grant Anthony Jack's Motion for Mistrial."

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. An error patent is one "that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La.Code Crim.P. art. 920(2). Upon review, we find that there are no errors patent.

However, we note that there is a procedural issue. As discussed above, after the defendant was convicted of resisting an officer and aggravated battery, but before the sentencing hearing on those charges, the State filed another bill of information under the same docket number. That bill of information charged the defendant with battery of a police officer and aggravated assault, and the defendant pled guilty to both charges. The defendant's convictions for battery of a police officer and aggravated assault are misdemeanors, and the proper appellate review for these offenses is by writ of review, not an appeal. La.Code Crim.P. art. 912.1.

The defendant has not challenged his misdemeanor convictions. Rather, his only assignment of error concerns the denial of his motion for mistrial regarding his convictions for resisting an officer with force or violence and aggravated battery. Therefore, we hereby sever the misdemeanors from this appeal and instruct the defendant that if he chooses to seek review of the misdemeanors, he must file an application seeking supervisory review with this court within thirty days of the court's ruling on appeal. See State v. LeBlanc , 08-1533 (La.App. 3 Cir. 6/10/09), 12 So.3d 1125, rev'd on other grounds , 09-1355 (La. 7/6/10), 41 So.3d 1168 ; State v. Turner , 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied , 05-0871 (La. 12/12/05), 917 So.2d 1084.

Motion for Mistrial

As discussed above, in briefing to this court, the defendant argues that the trial court erred in failing to grant his motion for mistrial, which was "based on false statements given in voir dire." In briefing to this court, the defendant reiterates the arguments that defense counsel made to the trial court. In particular, the defendant asserts that defense counsel would have picked the jury differently if the defense had known that Ms. Bellard could be challenged for cause. The defendant also re-urges that excusing Ms. Bellard and replacing her with the alternate juror changed the racial makeup of the jury. Citing State v. Carmouche , 01-0405 (La. 5/14/02), 872 So.2d 1020, the defendant argues that the trial court erred in not ordering a new trial or dismissing the jury panel when Ms. Bellard was excused. Further, and citing State v. Marlowe , 10-1116 (La.App. 4 Cir. 12/22/11), 81 So.3d 944, writ denied , 12-0231 (La. 5/18/12), 89 So.3d 1191, the defendant states that the trial court should have questioned all of the jurors to see if Ms. Bellard had spoken with them in order to determine "whether the jury was tainted."

Louisiana Code of Criminal Procedure Article 775 is titled "Mistrial; grounds for" and provides, in pertinent part:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
....
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

The trial court has discretion in deciding whether to grant a mistrial when a juror has made a false statement during voir dire, and the trial court's ruling should not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Short , 94-0233 (La.App. 4 Cir. 5/16/95), 655 So.2d 790, writ denied , 95-1520 (La. 11/17/95), 663 So.2d 719. In discussing La.Code Crim.P. art. 775, the fifth circuit has explained:

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Davis , 08-165, p. 17 (La.App. 5 Cir. 7/29/08), 993 So.2d 295, 305, writs denied , 08-2188 [ ( ]La.5/1/09), 6 So.3d 810, and 08-2200 (La.5/1/09), 6 So.3d 811. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. Id.
....
The trial court has discretion to use the services of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. State v. Tatum , 09-1004, p. 17 (La.App. 5 Cir. 5/25/10), 40 So.3d 1082, 1092.

State v. Dorsey , 11-745, 11-955, pp. 9-10 (La.App. 5 Cir. 4/24/12), 94 So.3d 49, 56 (affirming the trial court's decision to deny the defendant's motion for mistrial, dismiss a juror, and replace that juror with an alternate after the juror notified the trial court that he had told other jurors that he knew one of the victims), writ denied , 12-0998 (La. 10/12/12), 99 So.3d 39. With this standard in mind, we turn to the facts of the case.

Regarding the defendant's assertion that false statements were made during voir dire, Ms. Bellard explained to the trial court that she did not realize that she was related to the defendant's grandmother until the second day of trial after seeing the defendant's grandmother in the courtroom. Upon this realization, Ms. Bellard notified the trial court about the relationship and told the trial court that this would affect her fairness and impartiality. As discussed above, in denying the defendant's motion for mistrial, the trial court stated: "I don't believe that Ms. Bellard made an intentionally false statement on Voir Dire because when she came in here she admitted that she just found out that she maybe [sic] related." Accordingly, we find no abuse of the trial court's discretion in its denial of the motion for mistrial based on allegedly false statements made during voir dire.

Next, we consider whether the trial court abused its discretion in concluding that the defendant had not suffered substantial prejudice such that he could not receive a fair trial. We first address the defendant's assertions that defense counsel would have picked the jury differently if the defense had known that Ms. Bellard could be challenged for cause and that excusing Ms. Bellard and replacing her with the alternate juror changed the racial makeup of the jury. As discussed above, the trial court denied the defendant's motion for mistrial and stated: "Everybody picked the jury ... the jury is still made up of a cross section of the community female, male, white, and black and I don't believe the mere argument of race at this point shows any actual racial issues that have come up." We find no abuse of the trial court's discretion in its rejection of the motion for mistrial in this regard.

We next address the defendant's argument that the trial court erred in failing to order a new trial, dismiss the jury panel, or question the jurors based on comments that Ms. Bellard might have made to the other jurors. As discussed above, "[a] mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial." Dorsey , 94 So.3d at 56. For example, in Carmouche , 872 So.2d 1020, which was cited by the defendant in briefing to this court, a prospective juror commented about a sanity report pertaining to the defendant and of which she had knowledge, and other prospective jurors overheard her comment. The trial court denied the defendant's motion for mistrial. Id. On appeal, the supreme court concluded that the trial court had not abused its discretion in finding that there was no prejudice. Id. In the other case cited by the defendant, Marlowe , 81 So.3d 944, a deputy sheriff overheard one of the jurors state: "I don't care if they keep me here for three days, I'm going to vote guilty." Subsequently, defense counsel requested individual voir dire regarding the juror's comment, and each juror was questioned by the State and defense counsel to determine if the jury panel had been tainted. Id.

Here, we find no abuse of the trial court's discretion in denying the defendant's motion for mistrial. Initially, we note that no grounds for mistrial under La.Code Crim.P. arts. 770 and 771 are presented here. As discussed above, after Ms. Fontenot, Ms. Bellard's niece, notified the trial court that she had spoken with Ms. Bellard about Ms. Bellard's relationship to the defendant's grandmother, the trial court interviewed Ms. Fontenot. Ms. Fontenot stated that she had never seen the defendant or his grandmother before; that her ability to be fair and impartial was not affected; that she could judge the case strictly based on the evidence; and that she would be fair to both sides. Aside from Ms. Fontenot, the record does not indicate that the other remaining jurors were related to the defendant or spoke to Ms. Bellard about her relationship to the defendant's grandmother. Even if the other jurors had spoken to Ms. Bellard and had knowledge of her relationship to the defendant, such knowledge is unlikely to have affected the jurors' ability to be fair and impartial or to have otherwise tainted the jury or prejudiced the defendant. See Dorsey , 94 So.3d 49. See also State v. Cushenberry , 407 So.2d 700, 702 (La.1981) (wherein the supreme court concluded that the prospective "juror's comment was less than overwhelming and would not have influenced any other juror even if it was heard" after the prospective juror stated during voir dire that she had been a robbery victim and that the defendant resembled the person that had robbed her).

Moreover, the trial court corrected any perceived prejudice by dismissing Ms. Bellard and replacing her with the alternate. See Dorsey , 94 So.3d 49. Regarding the defendant's assertion that the trial court should have questioned the remaining jurors to determine if Ms. Bellard had spoken with any of them, we note that in this case, unlike in Marlowe , 81 So.3d 944, the record does not indicate that the defendant requested individual voir dire to ascertain whether the jurors spoke to Ms. Bellard.

Based on the foregoing, we find no abuse of the trial court's discretion in its conclusion that any comments Ms. Bellard might have made to the other jurors about being related to the defendant's grandmother did not cause the defendant to suffer substantial prejudice such that he could not receive a fair trial. See Dorsey , 94 So.3d 49. We also find no merit in the defendant's argument that the trial court should have interviewed each of the remaining jurors. See Marlowe , 81 So.3d 944.

DECREE

For the foregoing reasons, we affirm the convictions and sentences of the defendant, Anthony Jack, for resisting an officer with force or violence and aggravated battery. The defendant's misdemeanor convictions for battery of a police officer and aggravated assault are severed from the appeal. The defendant is instructed that he has thirty days from this court's ruling on appeal to file an application seeking supervisory review of the misdemeanors, if he so desires.

AFFIRMED.

      The amended bill of information charged the defendant with two counts of resisting an officer with force or violence and one count of battery of a police officer.
      The second amended bill of information charged the defendant with two counts of resisting an officer with force or violence and one count of aggravated battery.

      In pertinent part, La.R.S. 14:2(A) provides:
      A. In this Code the terms enumerated shall have the designated meanings:
      ....
      (4) "Felony" is any crime for which an offender may be sentenced to death or imprisonment at hard labor.
      ....
      (6) "Misdemeanor" is any crime other than a felony.
      The defendant pled guilty to battery of a police officer, a violation of La.R.S. 14:34.2, which provides, in pertinent part: "Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence." La.R.S. 14:34.2(B)(1). The defendant also pled guilty to aggravated assault, a violation of La.R.S. 14:37, which provides, in pertinent part: "Whoever commits an aggravated assault shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both." La.R.S. 14:37(B).