author: KEATY, Judge.

text:
    STATE of Louisiana v. Kerry BERTRAND
    16-659
    Court of Appeal of Louisiana, Third Circuit.
    12/28/2016

      Burleigh G. Doga, Assistant District Attorney, Post Office Box 288, Crowley, Louisiana 70526-0288, (337) 788-8831, Counsel for Appellee: State of Louisiana
    Edward K. Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602-1641, (337) 491-0570, Counsel for Defendant/Appellant: Kerry Bertrand
    Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

| defendant, Kerry Bertrand, was charged by bill of indictment with the second degree murder of his twenty-year-old stepdaughter, Skylar Credeur, in violation of La.R.S. 14:30.1. He waived formal arraignment and entered a plea of not guilty. A unanimous jury convicted him of the charged offense, and the trial court imposed a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant appeals. For the following reasons, we affirm Defendant’s conviction.

DISCUSSION

On August 21, 2013, authorities responded to a call that Defendant and the victim were alone in her home after a restraining order had been issued against him. There, they found the victim’s lifeless body in a bathtub with a laptop computer lying across her upper body. Shortly thereafter, Defendant was found hiding in the attic of the home. An autopsy revealed that the victim’s cause of death was drowning with strangulation or attempted strangulation before or during the drowning.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that “[t]he circumstantial evidence adduced at trial was insufficient to support the conviction of second degree murder beyond a reasonable doubt.”

Second degree murder is defined as the “killing of a human being ... [w]hen the offender has a specific intent to Mil or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). Specific intent is defined in La.R.S. 14:10(1) as “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.” In State v. Thibodeaux, 15-723, pp. 4-6 (La.App. 3 Cir. 4/13/16), 190 So.3d 426, 430-31, this court discussed the standard to be applied in cases where the sufficiency of the evidence is challenged and the case is based on circumstantial evidence:

The supreme court set forth the standard of review for evaluating the sufficiency of the evidence on appeal in State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86, where it held:
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La. 11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La. 4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.
The fifth circuit discussed the criteria for reviewing circumstantial evidence in the case of an attempted second degree murder in State v. Riley, 11-673, p. 10 (La.App. 5 Cir. 3/13/12), 90 So.3d 1144, 1149-50, writ denied, 12-855 (La. 9/28/12), 98 So.3d 828, where it held:
“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the |aexistence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id. (citation omitted).
When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier-of-fact, is sufficient to convict. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La. 4/26/02), 814 So.2d 549. Further, it is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence absent impingement on the fundamental due process of law.

At trial, a number of witnesses testified for the State. Michelle Sarver, a deputy clerk with the Acadia Parish Clerk’s Office, testified that on August 13, 2013, a temporary restraining order was issued ordering Defendant to “stay away from” the victim and her residence located at 140 Victor Road in Rayne, Louisiana. A hearing for a protective order was set for August 28, 2013. A separate temporary restraining order was issued on August 15, 2013, ordering Defendant to stay away from his wife, Alidia Credeur Bertrand, and their four minor children, who lived with the victim. The hearing date for this order was also set for August 28, 2013. Deputy James Landry with the Acadia Parish Sheriffs Department testified that he personally served Defendant with the summons for the temporary restraining orders regarding the victim and his wife on August 14, 2013, and on August 15, 2013, respectively.

|4Pr. Mark Dawson, the coroner of Acadia Parish for thirty-two years, testified that he received a call from the Acadia Parish Sheriffs Department on the afternoon of August 21, 2013, requesting that he go to the victim’s home. Upon his arrival, he found the victim deceased in the bathtub. Several officers from the Acadia Parish Sheriffs Department had arrived on the scene before him. Dr. Dawson described the bathroom as being in disarray with a shower curtain and towels on the floor and a laptop computer on the lavatory next to the bathtub. The power cord was attached to the computer and was plugged into the wall.

According to Dr. Dawson, there was no obvious cause of death. On the death certificate, he listed the cause of death as drowning. When asked what his initial thoughts were as to a cause of death, Dr. Dawson responded that electrocution and possible drug overdose were the two things that came to mind. He ordered an autopsy of the body, which indicated the cause of death was drowning. On cross-examination, Dr. Dawson acknowledged that one of the possibilities for the cause of death was accidental electrocution.

Dr. Terry Welke, who was accepted by the trial court as an expert in the field of forensic pathology, performed the autopsy on the victim’s body at the request of Dr. Dawson. His examination revealed that there was white foam coming from the victim’s nose and mouth which is consistent with drowning. He also found watery fluid in her stomach. Dr. Welke observed “little dashed scrapes” around the neck which he felt were caused. by irritation from the thin necklace she was wearing; fresh bruises on the back of her left shoulder, on her right shoulder, and on the back of her right hand; as well as a couple of scrapes on one of her arms. When he pulled back the victim’s scalp, there was a bruise on the undersurface of the scalp consistent with a forced injury directly on the top of thejjhead, “like someone or something had either fallen on her head or somebody hit her on the head.” Dr. Welke’s examination also revealed petechi-ae, or pin-point bruises, on the outside and undersurface of the victim’s eyelids; this is typically caused by pressure being applied to the neck as with strangulation or hanging. Additionally, he stated in his report that the victim had a “faint, linear patterned-bruise across the front of the neck,” which was similar in appearance to the victim’s thin, metal necklace. Finally, when he looked at the inside of the victim’s neck, he observed some blood and a bruise in the area of the thyroid gland.

Dr. Welke explained that he was trained that in order to rule a death a homicide, he had to be 100% certain that there was no other cause of death, whereas with accidental or natural deaths, he only had to be 51% certain before he called it one way or the other. Dr. Welke testified that because a laptop computer was found near the victim’s body, he explored the possibility that the victim died from electrocution in order to exclude all other causes of death. Dr. Welke stated that ground fault outlets have a button that turns the electricity off and another button that turns it back on. He explained that if a person stepped into a bathtub while holding an electrical appliance, the circuitry will be shut off so the person does not get electrocuted. Dr. Welke explained injuries/deaths from electrocution as follows:

Q. Can you tell us, in your experience and training, what evidence, if any, there is of electrocution that you could apply to this case in your examination?
A. ... [W]ith one hundred twenty (120) volts, which is what is in the wall, if you grab a bare wire what will happen is, you’ll actually feel some twitching in your arm. And one hundred twenty (120) volts, you’re not going to see anything. What it does is it causes the heart to go into what’s known as an arrhythmia or an irregular heart rate and basically becomes an inefficient pump. People that die as a result of high voltage injuries .... [exhibit] extensive tissue damage. |fiYou can see arms where the muscles are essentially blown out basically. I mean, it looks like it’s blown out, it’s not, but it tears muscle and it can do damage on the inside. So, with one hundred twenty (120) volts you’re probably not going to see anything. ... Even if your heart is not pumping efficiently, you still have ten (10) seconds, basically, of doing something even after you’ve been electrocuted with one hundred twenty (120) volts. So, since there’s really no — being unable to see with one hundred twenty (120) volts, because sometimes we might see a little burning on the skin, but a lot of times we won’t see anything at all. So, everything had to be ruled out before I could rule out electrocution in this case. Which I felt I did.
Q. Hypothetically, Doctor, let[’]s say that there was a powered, electrically powered laptop in the tub with the victim. Okay? Does that make any difference in that scenario where you have water, which I’m assuming is a conductor of electricity?
A. I would assume if it’s in the water and there’s a ground fault it would have tripped the ground fault. But even— laptops are powered — Those of you that have a laptop, you have the cord that goes in the wall and then there’s a brick, a box, it downsizes the voltage that goes in so that it doesn’t burn out your computer. And I think computers go down to ... nineteen (19) volts, twenty (20) volts, something of that sort. So, I don’t think that would — you might get a buzz, I mean, just a little tingling possibly.
A. Providing — I’m sorry — providing the brick wasn’t in the water.
BY MR. ALONZO:
Providing, I’m sorry, what, Doc?
BY THE WITNESS:
A. Well, a powered laptop — the laptops that I have, I have about this much cord between the brick and where the laptop is. (Witness indicates with hands.) If the laptop goes in the water but the brick is outside the tub, I would think that there are, like, only nineteen (19) or twenty (20) volts in the water with the laptop; however, if the brick, or whatever you want to call it, the power source, goes in the water with the laptop then I would think that would be a possibility of one hundred twenty (120) volts there. But if the brick itself where it steps down the voltage from one hundred twenty (120) to nineteen (19) or twenty (20) volts, I think with nineteen (19) or twenty (20) volts, like |7I said, I think that would just give like a little tingling, if even that, I don’t know. I’m not an expert in that sort of thing.

Dr. Welke found no physical evidence consistent with the victim being injured by electrical shock. He testified that he received a letter from" the Federal Bureau of Investigation (FBI) stating that its analysis showed “that the computer and the ground fault were doing essentially what they were supposed to be doing.” Dr. Welke also explored the possibility of drug overdose, because with drowning, there is a possibility the person passed out and drowned. A toxicology analysis was done, and no drugs were found in the victim’s system. In addition, Dr. Welke found that there were no indications that the victim had died of natural causes. Based on those findings, Dr. Welke concluded in his autopsy report that the victim died as a result of drowning with possible attempted strangulation during or before her “head [was] held below the surface of the water,” and that the manner of death was homicide.

On cross-examination, Dr. Welke acknowledged that if the victim’s computer had fallen into the bathtub and the ground fault did not trip, there was a “strong possibility of electrocution” that would leave no visible signs on her body. Dr. Welke stated that although there is a possibility that the hyoid bone could be broken in a forcible strangulation, he had found only a few broken hyoid bones in strangulation cases he had observed. While his autopsy revealed that the victim’s hyoid bone was not broken, Dr. Welke explained such a finding did not indicate that strangulation was not attempted. Although Dr. Welke confirmed that the bruising he found on the victim’s neck did not go around her entire neck, he reiterated that the cause of her death was drowning, but there was evidence of strangulation. During questioning, Dr, Welke confirmed that there were no | scratches or scrapes on the victim’s face and that none of her fingernails were broken. On the other hand, the autopsy revealed that the victim’s lungs were wet and “about twice of what the weight should be for somebody her size and weight.” Dr. Welke repeatedly testified that the cause of death was drowning, not strangulation.

Mr. Audie Hanks, an electrician, was accepted by the court as an expert in electrical contracting. Mr. Hanks testified that although he was unsure of the exact date, he was contacted by the Acadia Parish Sheriffs Department to conduct an electrical test on a ground fault interrupter (GFI) receptacle on the side of the sink in the victim’s bathroom to determine whether it was working properly. Mr. Hanks stated that he used his voltage meter on the receptacle and determined that the receptacle was “tripped.” Based upon his inspection and subsequent testing, Mr. Hanks concluded the receptacle was in working order. Mr. Hanks explained that a GFI receptacle has two buttons on it, and its purpose is to protect from anything that is shorted or grounded; if the GFI receptacle is “tripped,” the flow of electricity is cut off from the receptacle to whatever is plugged in to prevent electrocution.

On cross-examination, Mr. Hanks confirmed that he did not know how many people had been in the bathroom before he arrived, he did not know if someone tested the receptacle before him, and he did not have any idea what “tripped” the receptacle. Mr. Hanks stated that if the GFI receptacle does not work and something with 120 volts of electricity is dropped into a bathtub with someone, it would likely kill them because “one hundred twenty (120) volts is worse than thirteen thousand (13,-000) volts because it holds you.”

|3On re-direct, Mr. Hanks confirmed that the voltage would be less in an appliance with a “brick” that steps down the voltage. He testified that he had no knowledge of what type of appliance was involved in this situation and that he was not testifying on how much voltage it takes to kill someone as he had no expertise in that area.

Deputy Lonis Domingue of the Acadia Parish Sheriffs Department testified that he was the first to arrive at the victim’s residence at approximately 11:59 a.m. due to a complaint that Defendant was locked in the house with the victim. Upon arrival, Mrs. Bertrand, the complainant, was outside the residence and was very distraught. Deputy Domingue stated that the front door to the residence was “busted open” and that he entered the house with his gun drawn. When he entered the open door to the bathroom, Deputy Domingue observed the victim deceased in a tub of water with a laptop computer across her breast and stomach area. He testified that he did not touch or do anything to the electrical outlet. A short time later, he was joined by Sergeant Glynn Johnson and several more of the victim’s family members. Deputy Domingue and Sergeant Johnson removed everyone from the residence and continued looking for a suspect, but one was not located at that time. Deputy Domingue explained that investigators and detectives began arriving, and they took control of the scene.

On cross-examination, after reviewing the report he wrote concerning the incident, Deputy Domingue testified that he did not recall if the laptop was plugged in or unplugged, but that it must not have been plugged in “because [he] wouldn’t have attempted to touch the victim with electricity running to the water.” Deputy Domingue stated that he did not see any scratches, bruising, or blood on the victim. He explained, however, that as the first responder to arrive on the |inscene, his objective was to stop the threat and to secure the area which included preventing anyone from entering the bathroom because detectives would be arriving later to conduct an investigation and collect evidence.

Sergeant Johnson also testified at trial. He stated that after Deputy Domingue informed him of the situation, the two of them entered the house with their guns drawn. They searched the house room by room because someone whom he thought was the victim’s grandmother kept hollering, “he’s in the house.” Sergeant Johnson stated that upon entering the bathroom, he saw the victim submerged in the bathtub with foam coming from her mouth and a laptop on her chest. He did not touch the victim or anything else in the bathroom. Sergeant Johnson distinctly remembered that the cord was plugged into the electrical outlet in the wall, but not into the computer. He did not remove the cord from the electrical outlet. Sergeant Johnson stated that he and Deputy Domingue did not inspect the attic. He recalled that the opening to the attic was high and square with no fold-down ladder. Deputy Domingue testified that he noticed a ladder was leaning in a closed position against the wall of the hallway, but at the time “it never dawned on [him] what it was for.”

On cross-examination, Sergeant Johnson testified that there was a shower curtain on the bathroom floor, which he thought was strange, and that the floor was a little wet but not excessively so. He did not recall seeing any bruises or scratches on the victim. However, on re-direct, Sergeant Johnson stated that he did not closely inspect the victim’s body.

Edmond Credeur, the victim’s uncle, testified that after the scene was cleared and people were allowed inside, he entered the house and decided to check the attic. He used the ladder in the hallway to get into the attic. Upon turning on I n the attic lights, he noticed that the ones on the east end of the attic were not working, so he retrieved a flashlight. Mr. Credeur made his way across the attic and discovered Defendant lying on his back hiding in the “eve of the roof.” Defendant then stood up and said, “I didn’t do it.” When Mr. Cred-eur asked him what he didn’t do, Defendant “mumbled something about something floating in the bathtub.” Mr. Credeur stated that he observed scratches on Defendant’s face. Defendant then stated that he was going to come down from the attic, so Mr. Credeur alerted the deputies. Mr. Credeur then sought assistance from .his two stepsons who had come to the victim’s house with him. Once the boys joined him in the attic, a deputy gave them handcuffs to put on Defendant. After Defendant was brought down from the attic, Mr. Credeur pointed out the scratches on his face to the deputies. According to Mr. Credeur, Defendant accused him and his stepsons of scratching his face, but Mr. Credeur denied those accusations.

Corey Arnaud, Mr. Credeur’s stepson, testified that when they asked Defendant why he was in the attic, he said, “Well, if you find your daughter dead in. a bathtub[,] what would you do?” They told him, “Well, we’d call 911. We surely wouldn’t be hiding in the attic.” Mr. Arnaud confirmed that he did not scratch Defendant’s face, and he did not see anyone else do so.

Deputy Marcus Deville of the Acadia Parish Sheriffs Department testified that he worked in the parish jail in December of 2013. On December 16, 2013, while he was working in the jail’s control room,, he heard Defendant tell fellow inmate Ovey Wilson that he had cleaned the crime scene the best he could and that he wore gloves. Deputy Deville then heard Mr, Wilson ask Defendant if he had checked under the victim’s fingernails. Defendant responded in the negative and stated that it was the only mistake he made,

haBethany Harris, an employee of the Acadiana Crime Lab, was accepted as.-an expert in DNA analysis by the court. She explained that she tested the forty-five to fifty items submitted to her from the victim’s bathroom against referenced DNA samples from the victim; Defendant; the victim’s mother and Defendant’s wife, Mrs. Bertrand; four children of Defendant and his wife, namely Blake, Drake, Evan, and Taylor Bertrand; and the victim’s boyfriend, Bryar Babineaux. Ms. Harris stated that while the DNA profile of several of tested j .items excluded Defendant, there were several other items of which she could not draw any conclusions regarding Defendant. She explained that when her testing revealed “no conclusion” regarding whether. Defendant’s DNA was on an item, he may -have touched the item but she was unable to ascertain whether or not he did so. According to Ms. Harris, heat and water can degrade or wash away DNA and, thus, affect the results of DNA analysis.

On cross-examination, Ms. Harris stated that she was not able to conclusively include Defendant’s DNA profile in any of the items she tested from the victim’s bathroom. Ms. Harris stated that the analysis in this case was complicated because of the number of reference samples she had of Defendant’s biological children which resulted in overlapping DNA profiles. In testing swabs of the victim’s left and right fingernail clippings, there was a presumptive indication that blood may be present; however, Ms. Harris did not take the next step to confirm the presence of blood because the sample was too small. The profile matched the victim and excluded- Defendant and other family members as the source of that DNA profile. No male DNA was found on her left fingernail clippings, but a mixed profile consisting of DNA from at least three male individuals was obtained from her right fingernail clippings. Defendant and the | ^victim’s brothers were excluded from this profile, but the victim’s boyfriend was not.

Ryan LeBleu, a convicted felon, testified that while he was in the Acadia Parish jail between May 31 and August 12, 2013, he was housed in the same tier with Defendant, when Defendant was there on another charge. During this time, Defendant told Mr. LeBleu that his stepdaughter had some kind of way “brought back up charges of molestation” for which Defendant had already been imprisoned and released. According to Mr. LeBleu, Defendant said the reason his stepdaughter did so was because “he wanted her out of the house.” Defendant referred to his stepdaughter as a “bitch,” and he told Mr. LeBleu that he was going to make her pay for what she had done to him. Mr. LeBleu testified that although Defendant did not go into detail with him, he heard Defendant tell others seated at a table with them that he was going to drown his stepdaughter in a tub and take her to a lake or swamp where no one would find her body. Mr. LeBleu explained that when he saw the story of the victim’s death on the news, he contacted the Acadia Parish Sheriffs Department and gave a statement. Mr. LeBleu testified that since that time, he has had no pending charges, and he has not asked for, been offered, nor received anything in exchange for his testimony. On cross-examination, Mr. LeBleu testified that he suffers from several mental disorders, including bi-polar, schizoaffective, and post-traumatic stress. He explained that his schizoaffective disorder means that he is paranoid, but when asked, he affirmed that it does not involve fantasies, imaginations, stories, or lies.

Lieutenant Patrick Kirsch, Chief of Investigations with the Acadia Parish Sheriffs Department, testified that when he took Mr. LeBleu’s statement regarding 114this incident on August 21, 2013, Mr. LeBleu did not mention anything about Defendant throwing a body in a swamp or planning to drown the victim.

In support of Defendant’s' claim of insufficiency of the evidence, Defendant’s appellate counsel focuses on a number of facts, or lack thereof, such as: the-lack of water in the bathroom as would be expected if the victim fought for her life, the victim’s intact hyoid bone and fingernails, the absence of Defendant’s DNA on the items swabbed in the bathroom, the absence of-Defendant’s DNA under the victim’s fingernails, the fact that a person can die from electrocution without showing any visible signs per Dr. Welke, and the absence of details of Defendant’s planned killing in Mr. LeBleu’s statement taken by Lieutenant Kirsch. Finally, appellate counsel notes that it is highly possible Defendant was hiding in the attic because “he panicked when he found the body and hid knowing he would be the first and only suspect who had already violated a restraining order.”

We conclude that the evidence presented by the State was sufficient to prove Defendant’s guilt beyond a reasonable doubt. The State established that the victim had secured a restraining order against Defendant and that he had previously been imprisoned as a result of charges brought by her. The State also presented testimony that the Acadia Parish Sheriffs Department responded to a call that Defendant was alone in the house with the victim. Upon entering, deputies found the victim deceased in a bathtub. Although there were arguably no signs of a major struggle having taken place, Dr: Welke testified, that the victim had sustained a forced injury directly on the top of her head. This could have easily'prevented her from putting up a violent struggle. Dr. Welke’s conclusion, based on his autopsy of the victim’s body, was that the victim died from drowning preceded by, or concomitantly with, strangulation or attempted strangulation. This was | ^Defendant’s plan as testified to by Mr. LeBleu, a witness that the jury heard and had the choice to believe. Finally, Defendant attempted to conceal himself in the attic to evade capture, a further indication of his guilt. See State v. Davies, 350 So.2d 586 (La.1977). Considering the evidence presented in this ease, we conclude that the State proved Defendant’s guilt beyond a reasonable doubt.

The Trial Court’s Allowance of Testimony Regarding the FBI Report

Defendant contends that the trial court erred in allowing Dr. Welke to testify that he relied on an FBI report indicating that the ground fault interrupter was working properly. He claims allowing this testimony without the opportunity to cross-examine the individual who prepared the report violated Defendant’s constitutional right to cross-examine the witnesses against him. Defendant cites no cases in this assignment of error other than one establishing that a coroner’s report is an exception to the hearsay rule and can be admitted as proof of death and the cause thereof, which is not the issue here.

Dr. Welke testified that “once I had that report that the computer and the ground fault were doing essentially what they were supposed to be doing, then the final decision was made and the conclusion was made that the cause of death and manner of death was listed as a homicide.” He explained that the report was actually a letter from the FBI which he received from the Acadia Parish Sheriffs Department. When Dr. Welke produced the letter, Defendant’s trial counsel informed the court that he had never seen the letter, and he had no way to respond to it. He stated that had he known of the letter, he would have retained an expert to respond to it. The prosecutor stated that he believed he provided every document in his file to defense counsel in open file discovery, but he had no proof. | ^Defendant’s request for admonition and request to strike the portion of the. testimony about the FBI was denied. The FBI report was a proffered exhibit.

In State v. Mullins, 14-2260, 14-2310, pp. 2-9 (La. 1/27/16), 188 So.3d 164, 167-71, the supreme court addressed a similar issue:

Defendant .... argues that allowing Dr. Mark Vigen, the State’s expert psychologist, to present evidence as to the results of IQ testing he did not administer or score violated the Confrontation Clause of the United States Constitution. Next, Defendant argues that the lower courts erred in allowing hearsay testimony and the introduction into evidence of a letter Dr. Vigen prepared in advance of trial, both of which were based on information gained from persons who did not testify. Next, Defendant argues that the lower courts erred in allowing the introduction of Dr. Vi-gen’s letter, where the letter contained hearsay, not subject to any exception. Finally, Defendant alleges that the court of appeal erred in failing to find that the trial court had erred in allowing expert testimony where the State failed to comply with Article 705(B) of the Code of Evidence.
The United States Supreme Court has explained that the Confrontation Clause applies to “testimonial” statements. ...
In sum, United States Supreme Court jurisprudence tells us that testimonial evidence includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford [v. Washington], 541 U.S. [36], 124 S.Ct. [1354, 158 L.Ed.2d 177 (2004) ]. We also know that statements made for the primary purpose of seeking help during an ongoing emergency are not testimonial, Davis [v. Washington], 547 U.S. [813], 126 S.Ct. [2266, 165 L.Ed.2d 224 (2006) ]; [Michigan v.] Bryant, 562 U.S. [344], 131 S.Ct. [1143, 179 L.Ed.2d 93 (2011)], while statements made as part of an investigation into possible criminal past conduct with no emergency in progress are testimonial. Davis, 547 U.S. [813], 126 S.Ct. 2266. Testimonial statements include those “solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.” [Id. at] 826, 126 S.Ct. 2266[ ].When laboratory analysts’ affidavits include testimonial statements, a defendant is entitled to confront the analysts themselves. Melendez-Diaz [v. Massachusetts], 557 U.S. [305], 129 S.Ct. [2527, 174 L.Ed.2d 314 (2009) ]. A document created solely for an “evidentiary purpose,” made in aid of a police investigation, is testimonial. Bullcoming [v. New Mexico], 564 U.S. [647,] at 664, 131 S.Ct. [2705] at 2717 [180 L.Ed.2d 610 (2011)].
Ji2-'' •
Confrontation Clause violations do not fit within the limited category of constitutional errors that are deemed prejudicial in every case — the violation of a defendant’s right to confrontation may be harmless error. Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1437, 89 L.Ed.2d 674 (1986); State v. Welch, 1999-1283 (La. 4/11/00), 760 So.2d 317, 321-22. Courts analyze such errors by assuming that the damaging potential of the error was fully realized, then asking whether the reviewing court could conclude that the error was nevertheless harmless beyond a reasonable doubt. Welch, 760 So.2d at 321-22. The factors to be considered in determining whether the error was harmless include the importance of the testimony of the witness in the state’s case, whether the testimony is cumulative, the presence or absence of evidence corroborating or contradicting the testimony, the extent of the cross-examination permitted, and the overall strength of the state’s case. Welch, 760 So.2d at 321-22.

After having reviewed the foregoing Supreme Court jurisprudence, the Mullins court concluded:

We find that the letter containing the IQ test results and introduced by the State for the primary purpose of proving an essential element of the crime of aggravated rape contains testimonial statements and therefore is subject to Confrontation Clause requirements. As a result, the trial court violated Mr. Mullins’ Sixth Amendment rights by ruling the letter could be admitted into evidence without testimony. We further find the introduction of the letter violated the hearsay rule. Accordingly, we reverse the decisions below, vacate Defendant’s conviction and sentence, and remand this case to the District Court for a new trial.

Id. at 173.

In the present case, after applying the analysis set forth in Mullins, we conclude that the trial court may have erred in allowing Dr. Welke to testify about the findings of the FBI report. However, unlike the situation in Mullins, the error is harmless in this case. The information regarding the proper functioning of the GFI receptacle was cumulative, at least in part, to the testimony of Mr. Hanks. Additionally, the bruising and petechiae observed by Dr. Welke was indicative of pressure being applied to the victim’s neck during the drowning. Further, | lsDefendant was overheard before the murder talking about his intent to kill the victim by drowning, and then after the murder about the fact that he wore gloves and attempted to clean up the crime scene. We conclude that the guilty verdict in this trial was surely unattributable to this error.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: COOKS, JUDGE

license: Public Domain

text:
    STATE of Louisiana v. Albert SCOTT a/k/a Albert Jonathan Scott
    16-479
    Court of Appeal of Louisiana, Third Circuit.
    12/28/2016
    Nicole F. Gil, Evangeline Parish District Attorney’s Office, P.O. Drawer 780, Ville Platte, LA 70686, (337) 363-3438, ATTORNEY FOR APPELLEE State of Louisiana

      Leo J. “Trey” Flynn, III, 2820 Jackson Street, Alexandria, LA 71301, (318) 542-4102, ATTORNEY FOR DEFENDANT/APPELLANT Albert Scott
    Court composed of Sylvia R. Cooks, John D. Saunders and Phyllis M. Keaty, Judges.
   COOKS, JUDGE

FACTS AND PROCEDURAL HISTORY

|2On March 2, 2014, Defendant, Albert Scott, was driving down East Main Street in Ville Platte, Louisiana. According to Defendant, a vehicle in the other lane of traffic was driving erratically, swerving between lanes. In response to this, Defendant took a handgun and fired two shots. Both of those bullets went through the back windshield of the other vehicle, with one of the bullets lodging in the center console of the vehicle.

In his statement to the police, Defendant claimed that he felt threatened by the erratic driving of the other vehicle and was simply trying to warn him by firing the gun. He acted surprised that the shots he fired struck the vehicle, as he claimed that he “thought [he] just stuck [the gun] in the air and pulled the trigger.”

On March 7, 2014, Defendant was charged by bill of information with attempted second degree murder, in violation of La.R.S. 14:30.1 and 14:27. At the arraignment on the charge of Attempted Second Degree Murder, the trial court appointed Aex Chapman, with the local Indigent Defender Board, to represent Defendant. At a later court appearance, Defendant requested the trial court appoint another attorney to represent him. The trial court granted the request, and Kelly Tate was appointed to represent Defendant.

On January 15, 2015, the State filed an amended bill of information, charging Defendant with attempted manslaughter, in violation of La.R.S. 14:31 and 14:27. On that same date, Defendant pled guilty to the reduced charge of attempted manslaughter without a sentencing recommendation or agreement.

Because the trial court failed to address Defendant’s Boykin rights during the plea, his plea was vacated on January 21, 2015. At that time, Defendant again pled guilty to the charge of attempted manslaughter without any sentencing recommendation.

|sOn May 21, 2015, Defendant was sentenced to ten years at hard labor with credit for time served. At the ■ sentencing hearing, the trial court allowed Mr. Chapman to stand in for Ms. Tate, who was not available on that date. On July 23, 2015, Defendant was brought back for a second “sentencing” hearing so the trial court could inform Defendant of the two-year prescriptive period for filing post-conviction relief.

Thereafter, Defendant filed an appeal alleging his right to conflict-free counsel was violated when Mr. Chapman, his prior attorney with whom he allegedly had a conflict with, represented him at the sentencing hearing. This court remanded the case to the trial court for an evidentiary hearing at which the trial court was to determine whether there was an actual conflict between Defendant and Mr. Chapman such that resentencing was required or whether there was merely a personality conflict between the two. State v. Scott, 15-975, p. 1 (La.App. 3 Cir. 4/27/16), 2016 WL 1688475 (unpublished opinion).

The trial court held an evidentiary hearing on May 18, 2016, and found no actual conflict of interest with any legal import existed — only a personality conflict existed between the attorney and Defendant. An appeal record was subsequently lodged with this court, as ordered by this coui-t in Scott Id. Defendant now contends the trial court erred when it held an actual conflict of interest did not exist between Mr. Chapman and himself.

ANALYSIS

In his only assignment of error, Defendant contends the trial court erred when it held that an actual conflict of interest did not exist between Attorney Alex Chapman and Defendant.

As a general rule, Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant whom he is representing. State v. Cisco, 2001-2732 p. 17 (La.12/3/03), 861 So.2d 118, 129, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004). An actual conflict of interest has been defined, as follows:
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.
The issue of conflicting loyalties may arise in several different contexts, but may include the circumstance “where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney.” Cisco, 2001-2732 p. 17, 861 So.2d at 129, citing State v. Tart, 1993-0772 p. 19 (La.2/9/96), 672 So.2d 116, 125, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).
If the issue of counsel’s alleged conflict of interest is raised in a pretrial setting, the district court has two options: “appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel.... Failure to do one or the other in a case in which an actual conflict exists requires reversal.” Cisco, 2001-2732 p. 17, 861 So.2d at 130. If the issue of counsel’s alleged conflict of interest is not raised until after trial, “the defendant must prove that an actual conflict of interest adversely affected his lawyer’s performance.” State v. Kahey, 436 So.2d 475, 484 (La.1983). Because the prejudice to the defendant may be subtle, even unconscious, “where the conflict is real, a denial of effective representation exists without a showing of specific prejudice.” Id., 436 So.2d at 485.
The first step in the analysis of an alleged conflict of interest raised either pretrial or post-trial is whether an actual conflict of interest existed.

State v. Reeves, 06-2419, pp. 78-79 (La. 5/5/09), 11 So.3d 1031, 1081-82, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009) (footnotes omitted).

At the evidentiary hearing ordered by this court, Alex Chapman was called to testify. Mr. Chapman indicated he represented Defendant in a case in which he was charged with attempted second degree murder. Mr. Chapman was successful in getting Defendant’s bond reduced from $200,000.00 to $75,000.00. Defendant then bonded out of jail. Defendant was late for a “probing date” that occurred a short time after the bond reduction hearing. Mr. Chapman testified that he called Defendant to inform him that he was late for court. Because Defendant was late, |Bthe judge increased Defendant’s bond to $200,000.00. According to Mr. Chapman, Defendant became angry and took that anger out on him. Mr. Chapman testified that he said, “[w]ell maybe it’s best we let someone else handle it,” and he gave the file to Kelly Tate. Mr. Chapman further indicated that he asked Defendant if he wanted another attorney, and Defendant said, “[y]es.” Mr. Chapman subsequently testified Defendant murmured that he wanted another attorney. Mr. Chapman thought that if Defendant had another attorney it would make things smoother.

Ms. Tate represented Defendant through the negotiation of a plea agreement. Ms. Tate later went to work in the District Attorney’s Office. Mr. Chapman explained that to Defendant and asked if Defendant had any problems with Mr. Chapman representing him “for the deal /all made.” Mr. Chapman testified Defendant said “no so then we entered the plea of guilty with me standing there standing in.” Mr. Chapman further stated, “I asked if he had any problem and he said no so I jumped back in.” An extensive sentencing hearing followed, and Mr. Chapman took it for granted that Defendant had no problem with Mr. Chapman representing him at that hearing. Mr. Chapman testified he had witnesses lined up for the hearing and was in contact with Defendant’s wife “all this time” about lining up witnesses for the sentencing hearing. Mr. Chapman stated:

[N]o one ever said anything that they didn’t want me to represent him so we proceeded and we presented our litigating [sic] factors and the Court ruled and uh as I was still his trial attorney so I requested the Appellate Project to go ahead and take this up on appeal to [sic] because I saw an issue with his sentence versus the sentence that Seth Fontenot got in Lafayette.

Mr. Chapman indicated that at no time did Defendant say he did not want Mr. Chapman to represent him.

Mr. Chapman was asked if it was “really just [his] opinion that it was a personal conflict,” and he replied, “I guess.”

| (¡During the time Mr. Chapman initially represented Defendant, he was running for City Judge. Mr. Chapman had informed Ms. Tate that, in light of the fact that he was running for City Judge and Defendant was mad at him, he thought it was best that she take over the case. Questioning of Mr. Chapman continued as follows:

Q. But would you agree that if he knows you are running for City Judge and there’s a miscommunication that he may feel, it’s not personal, he just may feel that you [sic] spending more time running for City Judge than you are handling his case?
A. Well if it actual [sic] would have gone to trial that could have been an issue but as far as just handling as a plea matter.
Q. But what I’m saying instead of it being a personal conflict because you keep referring to it as he’s mad about the bond but what I’m saying is you [sic] running for City Judge and you [sic] sitting in Mr. Scott’s position. Would you agree that it wouldn’t from Mr. Scott’s prospective it wouldn’t be personal it would be more of a listen he’s running for City Judge that’s where his focus is on right now. We had a miscommunication it’s cost my bond and I think it’s because of his time that he is spending running for City Judge. Would that be a fair assessment where that way it’s not a personal conflict? It’s a legitimate where he feels that there’s a conflict with you running for Judge and trying to represent him in this matter.
A. At that particular time, yes but at the time that the plea was taken and the sentence I had lost the election and was back to being Indigent Defender so it wasn’t an issue anymore.
Q. Were you running for City Judge when you came in on the Probing where bond was brought back up?- . .
A. Yes.
Q. Okay so when that happened he could have felt like you spent more time workT ing on City Judge may not been [sic] looking at the file?
A. Maybe so.
Q. And that would have been a personal conflict?
A. Correct.

Mr. Chapman did not owe a duty to another person at the time of the sentencing hearing that would be detrimental to Defendant.

| -/Defendant also testified at the hearing. He stated he was arrested for drive-by shooting, bonded out of jail, and remained out of jail one day. The day after he was released from jail, he was called by the “DA” and asked to “come back that he wanted to revoke my bond.” At that time, Defendant was introduced to Mr. Chapman. They subsequently went into court, and the State informed the judge that the charges had been upgraded to attempted second degree murder.

Defendant claimed he met with Mr. Chapman three or four times, but Mr. Chapman never went through Defendant’s file with him. However, Mr. Chapman did give him a copy of the file. Mr. Chapman called Defendant at home one morning at 11:00 a.m. and told him he was supposed to be in court at 9:00 a.m. When Defendant arrived in court, the judge informed him that a bench warrant had been issued. Defendant testified he informed the judge he was unaware he was scheduled to be in court that day. Defendant subsequently fired Mr. Chapman, believing he was not getting proper representation.

The minutes of court for January 21, 2015, indicated Defendant was present in coui't and represented by Ms. Tate. At that time, his plea of January 15, 2015, was withdrawn. Defendant informed the court that he intended to plead “straight up” to attempted manslaughter. Defendant was Boykinized and entered a plea of guilty. The court ordered a pre-sentence investigation report be completed within sixty days, and sentencing was set for April 16, 2016.

Defendant appeared for sentencing and was told by Mr. Chapman that he was to represent Defendant, as Ms. Tate had gone to work in the district attorney’s office. Defendant stated Mr. Chapman told him that nothing could be changed or added, that Defendant needed representation, that Mr. Chapman represented him, and that Mr. Chapman was just going to sit in the courtroom. Defendant claimed this meeting happened five minutes before the two went into court.

| ^Defendant testified that he did not have any personal issues with Mr. Chapman and said Mr. Chapman was a nice guy. However, he felt there was a conflict because Mr. Chapman was spending moré time campaigning for judge than representing him. Defendant never mentioned Mr. Chapman’s running for office to him. Additionally, he did not feel there was a personal conflict.

When asked if he told the court at sentencing that he wanted another attorney, Defendant replied: “I didn’t think there was anything wrong with it ma’am.” Defendant testified that he did not know 'he could object, and he would have had he known.

After hearing the testimony of Mr. Chapman and Defendant, the trial court issued the following ruling:

The Third Circuit in KA15975 says the issue in this case is if there was an actual conflict between the defendant and Mr. Chapman or was there simply a personality conflict. If a defense attorney owes a duty to a party whose interest are adverse to those of the defendant then an actual conflict exist. That’s the law State versus Cisco and also that the law as now contained in State versus Albert Scott the Third Circuit is defending him. Mr. Chapman denies that he owed a duty to any person other than Mr. Scott at either the original hearing that when he was representing at the beginning of the case and/or at the sentencing hearing. Therefore this court finds that no actual conflict existed that it was a lack of better terms, a personality issue between Mr. Chapman and Mr. Scott. That is my finding.

In brief to this court, Defendant contends that Mr. Chapman withdrew from his case because Mr. Chapman was campaigning for city judge, and Defendant felt Mr. Chapman was not giving the proper time to his case. Defendant argues because of the previous withdrawal there is a presumption that Mr. Chapman’s representation was ineffective or at least not conflict-free. Thus, Mr. Chapman should not have represented him at sentencing. In support of his claim, appellate counsel cites Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and addresses the factors for ineffective assistance of counsel set forth therein.

| nDefendant admits this case does not present a situation wherein counsel represented multiple co-defendants. He alleges the conflict arose because Mr. Chapman was campaigning for an elected office during the time Mr. Chapman represented him. Defendant cites Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and asserts the ruling therein is not restricted to cases wherein an attorney represents more than one co-defendant. Defendant cites the following from Cuyler: “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348, 100 S.Ct. 1708. “Our cases make clear that every defendant has a constitutional right to ‘the assistance of an attorney unhindered by a conflict of interests. Holloway v. Arkansas, 435 U.S. 475, 483, n. 5, 98 S.Ct. 1173, 1178, n. 5, 55 L.Ed.2d 426 (1978).” Id. at 355, 100 S.Ct. 1708. Defendant argues this court should consider the rule “once a conflict, always a conflict.”

Defendant avers he demonstrated an actual conflict existed and that Mr. Chapman did not adequately prepare for sentencing. Defendant further maintains that at the sentencing hearing he responded “no” when asked by Mr. Chapman if he wanted to be represented by him. In conclusion, Defendant asks that he be given a new sentencing hearing.

The State asserts Defendant has not demonstrated an actual conflict existed during the time Mr. Chapman represented him. Additionally, nothing in the record, besides Mr. Chapman’s running for office, demonstrated that his loyalties were divided. Furthermore, Mr. Chapman was not running for office at the time Defendant was sentenced. The State claims there was merely a personality conflict between Defendant and Mr. Chapman.

In State v. Gorman, 11-491, p. 13 (La. App. 5 Cir. 2/14/12), 88 So.3d 590, 599, the fifth circuit held:

|1flWe find no merit to defendant’s argument that he was entitled to new counsel because of a conflict of interest. Defendant contends a conflict arose when he filed a motion to appoint new counsel. Defendant’s mere dissatisfaction with his appointed counsel does not create an actual conflict of interest that requires appointment of other counsel. Furthermore, there is no evidence defense counsel had an actual conflict of interest. The record does not show defense counsel was simultaneously representing defendant and a State witness, nor does the record show that defense counsel was required to cross-examine a witness who was testifying against defendant and who was a client of the attorney.

In State v. LeBlanc, 10-1484, p. 23 (La. App. 4 Cir. 9/80/11), 76 So.3d 572, 587, writ denied, 11-2300 (La. 11/18/11), 75 So.3d 446, the fourth circuit stated: “As for the alleged conflict of interest, it appears that what the defendant refers to as a conflict of interest was his disagreement with one more of Mr. Jenkins [sic] defense strategies. The defendant offers no authority for the proposition that such disagreement equates to a conflict of interest.” The court further stated: “That the defendant may have disagreed with Mr. Jenkins’s defense strategy or strategies does not equate to conflicting loyalties.” Id. at 588.

In United States v. Horton, 845 F.2d 1414 (7th Cir.1988), defendant claimed the magistrate erred in denying his request for substitution of counsel because there was an irreconcilable conflict between defendant and his court-appointed attorney. He also argued that his attorney’s publicly reported position as one of the finalists under consideration for nomination by the President of the United States for the Office of United States Attorney for the Western District of Wisconsin during the time he represented defendant constituted an actual conflict of interest in violation of his right to effective assistance of counsel. He further alleged that counsel’s lack of preparation and investigation resulted in ineffective assistance of counsel.

The Seventh Circuit noted that, at an ex parte hearing, defendant “vaguely-voiced distrust” of counsel. Id. at 1418. The court concluded:

We have held that the denial of a motion to substitute alleging only “ethereal distrust” of counsel is not reversible error. [United States v.] Morris, 714 F.2d [669] at 673 [ (7th Cir. 1983) ]. Nor do “personality |, 11conflicts and disagreements over trial strategy” constitute grounds for reversible error. [United States v.] Hillsberg, 812 F.2d at [328] 333-34 [ (7th Cir.1987) ] (quoting United States v. Davis, 604 F.2d 474, 479 (7th Cir.1979)). Here, the magistrate found that the communication barrier that existed between Horton and Callaway was primarily the result of Horton’s refusal to cooperate with his counsel and his “stonewalling” effort to select counsel of his own choice. The magistrate also explained fully to Horton that Callaway could not force him to plead guilty and that he had the right to go to trial if he so desired. Horton indicated that he understood. Under these circumstances, we cannot say that the magistrate abused his discretion in denying Horton’s motion to substitute counsel. It is a meritless issue.

Id. Defendant further argued the court should have been put on notice of the conflict of interest by his motion to substitute counsel. The court determined defendant must demonstrate there was “an actual conflict of interest — that is, that the defense attorney was required to make a choice advancing his own interests to the detriment of his client’s interests.” Id. at 1419.

Here, Horton argues that the fact of Callaway’s serious candidacy for the position of United States Attorney is, in and of itself, an actual conflict of interest as a matter of law and that we should therefore presume that it adversely affected Callaway’s performance. It is not claimed that Callaway attempted to deliberately keep the information about his possible appointment from his client. We will not indulge the presumption that a defense attorney who is being considered for a position as United States Attorney is unable to represent a defendant in federal court to the best of his ability and with the defendant’s best interests in mind.
We note that Callaway’s candidacy was not a secret. An April 28, 1987 article in the Wisconsin State Journal reported that Callaway and three others were finalists in the selection process. Even though it might have been advisable for Callaway to have informed the court and his client of his possible future employment, any failure to do so by no means gives rise to the presumption that, in total disregard of his professional responsibilities, his representation of Horton therefore was adversely affected. In those cases where courts have presumed that the adequacy of representation was adversely affected, a lawyer has been involved in a conflict of interest with the client “which is always real, not simply possible, and which, by its nature, is so threatening to justify a presumption that the adequacy of representation was affected.” United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Cancilla involved a conflict where the defendant was represented by trial counsel who, unknown to the defendant, was himself involved in criminal activity related to that for which the defendant was convicted. The Cancilla court found that trial counsel’s potential criminal liability created an actual conflict and further | ^presumed adverse effect on the adequacy of representation because there was no doubt that counsel’s primary interest was in ensuring that his role in a related offense would not be divulged. Id. See also Government of Virgin Islands v. Zepp, 748 F.2d [125,]at 136 [ (3rd Cir. 1984) ] (actual conflict existed where defense counsel could have been indicted on the same charges on which he represented defendant).
By contrast, this case presents at most a remote possibility of a conflict of the type with which Cuyler was concerned. See Cancilla, 725 F.2d at 870. Though it is conceivable that an unprincipled defense attorney in line for a job as United States Attorney might encourage a defendant in some circumstances to plead guilty in order for counsel to curry favor with his or her future employer, that is too fanciful upon which to base a per se rule of conflict. Callaway was seeking the position of United States Attorney, a high position of great responsibility which involves appointment by the President of the United States and confirmation by the Senate. There was no one known in the local United States Attorney’s office with whom Callaway could have “curried favor” and advanced his appointment. Nor was this case a high-publicity criminal prosecution in which there was public interest, or anything else which would attract the attention of those involved in the selection and confirmation process. In any event, a candidate for a high federal position in his professional field would not advance his own interests by demonstrating that he is a weak or unskilled attorney on behalf of his client’s interests. We do not believe that the fact of Callaway’s unsuccessful candidacy for United States Attorney, in and of itself, gave rise to a conflict of interest as a matter of law. This United States Attorney position argument appears to be nothing but an afterthought.
In United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir.1986), cert. denied, [479] U.S. [1038], 107 S.Ct. 893, 93 L.Ed.2d 845 (1987), we held, however, that a conflict of interest existed where counsel advised the defendant to plead guilty to avoid “making waves” with federal prosecutors with whom counsel would be working in the future.... Unable to demonstrate that Callaway actively represented conflicting interests, Horton has not “established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719.

Id. at 1419-20.

After reviewing the cases cited herein and the transcript of the hearing held on May 18, 2016, we find Defendant failed to prove there was an actual conflict of interest between Mr. Chapman and himself. Accordingly, Defendant’s conviction and sentence are affirmed.

hsDECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . This opinion can be found by using Westlaw citation 2016 WL 1688475.


author: SAVOIE, Judge

text:
    Clifford Joseph LEDET v. CETCO OILFIELD SERVICES COMPANY, LLC
    16-342
    Court of Appeal of Louisiana, Third Circuit.
    12/28/2016

      Mark T. Garber, Attorney at Law, 2000 W. Congress Street, Lafayette, LA 70506, (337) 284-5500, INTERVENOR
    Scott T. Winstead, Katherine L. Swart-out, Thompson Coe, 650 Poydras St., Suite 2750, New Orleans, LA 70130, (504) 526-4350, COUNSEL FOR DEFENDANT/APPELLEE: CETCO Oilfield Services Company

      Kenny M. Habetz, Jr., Brandt <& Sherman, L.L.P., 111 Mercury Street, Lafayette, LA 70503, (337) 237-7171, COUNSEL FOR PLAINTIFF/APPELLANT: Clifford Joseph Ledet
    Court composed of James T. Genovese, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   SAVOIE, Judge

11 Plaintiff Clifford Joseph Ledet (Ledet) appeals a March 2, 2016 judgment of the workers’ compensation court finding that: 1) Ledet’s rheumatoid arthritis was not causally related to the work accident of October 17, 2012, and, thus, was not com-pensable under the Workers’ Compensation Act (WCA), and 2) Defendant CETCO Oilfield Services, L.L.C. (CETCO) was not responsible for the payment of medical treatment related to the rheumatoid arthritis, including the prescription Leucovo-rin. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 17, 2012, while Ledet was employed by CETCO, he tripped and fell moving handrails, injuring his lower back and left elbow. Immediately after the accident, Ledet presented to the Occupational Medicine Clinic of Acadiana (OMCA) walk-in clinic where he was evaluated by Dr. Ross Gardner. X-rays were taken which showed traction spurs and arthritic changes. Ledet related to Dr. Gardner that he had been taking Prednisone, a steroid, for a basketball injury, which occurred the previous month, but that he was out of the medication. Ledet was diagnosed with contusions to the lumbar spine and left elbow. He was released to work full time with no restrictions where tolerable. Later the same day, Ledet presented to the Iberia Medical Center emergency room. He did not mention his previous knee injury or any medications he was taking. Ledet was treated with Toradol to ease his pain and Norflex as a muscle relaxer. He was also prescribed Anaprox for inflammation and Flexeril for muscle spasms. X-Rays were also performed at Iberia Medical Center. These x-rays indicated degenerative joint disease and compression fractures, the age of which was unknown.

|2On October 23, 2012, Ledet had a follow-up visit with Dr. Gardner at OMCA. Ledet reported no pain except for some stiffness when arising in the morning. However, a skin rash was noted by Dr. Gardner as possible psoriatic arthritic disease. Ledet was released to full work duty with no restrictions.

Ledet returned to OMCA on November 7, 2012, seeing Dr. Tony Alleman. He prescribed Flexeril and Lodine and ordered an MRI for Ledet. Ledet did not follow-up with Dr. Alleman; instead he saw Dr. John Sledge at the Lafayette Bone and Joint Clinic. He first presented to Dr. Sledge on December 5, 2012. Ledet did not inform Dr. Sledge of his previous basketball injury. He reported aching and numbness in his knee and walked with a limp. He also had back pain. Dr. Sledge prescribed Prednisone and suggested physical therapy. Ledet continued treatment with Dr. Sledge periodically from December 2012 through trial.

On May 29, 2013, Ledet sought a second medical opinion from Dr, Douglas Bernard. Dr. Bernard suggested Ledet see a rheumatologist. Dr. Sledge was in agreement. On October 20, 2013, Ledet was involved in an automobile accident, result-mg in neck and back pain. He was treated by a chiropractor. Dr. Sledge referred Le-det to a pain management doctor, Dr. Steven Staires. Dr. Staires first evaluated Le-det on February 18, 2014. He noted that Ledet had physical evidence of degenerative joint disease in his knees and polyar-thropathy (a type of arthritis) in his hands. Ledet was instructed to find a primary care physician in Houston, Texas, where he lives, for further treatment. It is unknown whether Ledet followed this advice.

On April 15, 2014, Ledet was seen by Dr. Joseph Nesheiwat, a rheumatologist. Dr. Nesheiwat attributed Ledet’s rheumatoid arthritis to his workplace injury. Le-det received steroid shots in his knee which were paid by |sCETCO until the issue of whether the rheumatoid arthritis was attributable to his workplace accident was resolved.

Ledet filed a claim with the workers’ compensation court on July 10, 2014, for CETCO’s failure to approve the medication Leucovorin, which was recommended by Dr. Nesheiwat to treat Ledet’s rheumatoid arthritis. CETCO answered, alleging the expenses sought were not related to the workplace accident.

Prior to commencement of trial, the parties agreed to the following stipulations:

1. Clifford Ledet was employed with Cetco on 10/17/12.
2. Clifford Ledet was involved in an accident in the course and scope of his employment with Cetco on 10/17/12.
8. As a result of the accident, Ledet sustained bodily injuries to his back and left elbow.
4.Cetco would pay Ledet past mileage expenses through the date of trial for medical treatment and prescriptions upon receipt of documentation evidencing the date of medical treatment and prescriptions, subject to a credit for mileage already paid by Cetco. Amount to be determined between the parties.
5. Ledet’s [Average Weekly Wage] (AWW) was $903.31. Wage benefits of $602.23 per week have been paid since injury.
6. There was no dispute as to timing or amount of wage benefit payments.
7. All medical benefits not related to rheumatoid arthritis have been paid.
8. The only issue of non-payment for medical treatment stems from the compensability of rheumatoid arthritis.

The workers’ compensation judge (WCJ) ruled in favor of CETCO and against Le-det, finding that Ledet’s rheumatoid arthritis was not causally related to the workplace accident and that he was not entitled to reimbursement for the prescription, Leucoverin. Ledet now appeals.

| .ASSIGNMENTS OF ERROR
1. The WCJ committed manifest error in failing to apply the presumption of causation.
2. The WCJ committed manifest error in holding Ledet’s rheumatoid arthritis was not causally related to the on the job accident and injury on October 17, 2012, as the WCJ’s findings and conclusions were not reasonably supported by the record.
3. The WCJ committed manifest error in admitting evidence and testimony, specifically Defendant Exhibit 14, regarding the records of Dautrive Hospital for the date of service of December 16, 2011, wherein Ledet complained of abdominal pain, vomiting and nausea.
4. The WCJ committed manifest error in admitting evidence and testimony, specifically Defendant Exhibit 16, regarding the subsequent automobile accident of October 20, 2013.
5. The WCJ committed manifest error in ' failing to award penalties and attorney’s fees.

DISCUSSION

Assignments of Etror Numbers One and Two

The WCJ found that Ledet did not meet his burden of proof by a preponderance of the evidence to establish that the development of his rheumatoid arthritis was a consequence of his October 17, 2012 workplace accident. The WCJ further determined that Ledet did not prove a causal connection between his rheumatoid arthritis and the workplace accident. Ledet argues that the WCJ failed to apply the presumption of causation. This court has previously stated:

“An employee in a workers’] compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition.” An employee’s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves after-wards. However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between Uthe accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.
Whether the presumption is applicable is a finding of fact subject to the manifest error-clearly wrong standard of review.

Brown v. Town of Ferriday, 11-570, pp. 2-3 (La.App. 3 Cir. 11/2/11), 76 So.3d 155, 157-158(citations omitted) (alteration in original).

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La. 2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, p. 4-5 (La. 1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or -wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La. 7/1/97), 696 So.2d 551, 556 (alteration in original).

The record reflects that Ledet was exhibiting signs of rheumatoid arthritis prior to the workplace accident. The spirometry reports in Ledet’s pre-employment physical examinations show a decline in respiratory function. On April 9, 2010, at the age of forty-five, Ledet’s lung age was fifty-six, while on October 14, 2011, they were found to have declined to eighty years of age. In the x-rays taken on the day of the subject accident, degenerative joint disease and arthritic changes are visible. Further, the injury that Ledet sustained during the | fibasketball game a month before the workplace accident resulted in inflammation so severe that he walked with a limp for months. Based on the evidence in the record, it was reasonable for the WCJ to have found that Ledet was not in good health prior to accident.

However, even if the WCJ found that Ledet was in good health prior to the accident, the law still requires that “there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.” Brown at 158.

Between 2010 and 2011, Ledet’s lung age significantly increased. In December 2011, Ledet was admitted into hospital for a gastrointestinal tract infection. As discussed above, Ledet walked with a limp due to swelling of his knee from a previous basketball injury which occurred in September 2012, before his October 2012 workplace accident.

In a May 29, 2013 report, Dr. Bernard stated that some of Ledet’s problems could stem from rheumatoid disease. This report was compiled seven months after the accident. Ledet testified that he had never heard of rheumatoid arthritis before this time. Dr. Sledge’s first mention of rheumatoid arthritis was October 16, 2013, wherein he agreed with Dr. Bernard that Ledet should be seen by a rheumatologist. This was one year after the accident. Dr. Nesh-eiwat examined Ledet in April 2014, and diagnosed him with seropositive rheumatoid arthritis.

Dr. Nesheiwat opined that it was “medically reasonable that [Ledet’s] rheumatoid arthritis ha[d] likely occurred as a result of the trauma sustained during the work-related injury in 2012.” CETCO did not introduce expert testimony to 17compIetely disprove this claim. However, Dr. Bernard disagreed with the conclusion that Ledet’s rheumatoid arthritis was caused by his workplace accident. He questioned the science behind Dr. Nesheiwat’s opinion finding that it was based on a “non-scientific retrospective review.” Further, the American Medical Association Guide for Disease and Injury Causation states that “there is no high quality evidence in the literature to substantiate a relationship between trauma and [rheumatoid arthritis].” The WCJ clearly found this evidence to be persuasive in finding no causal link between Ledet’s injury and the workplace accident.

We find the WCJ was not manifestly erroneous in failing to apply a presumption of causation in this case. Further, based on the record before us, the WCJ had a reasonable basis to find no causal link between the workplace injury and Ledet’s rheumatoid arthritis. These assignments lack merit.

Assignment of Error Number Three

Ledet next complains that the WCJ committed manifest error in admitting evidence and testimony, specifically Defendant Exhibit 14, regarding the records of Dauterive Hospital for the date of service of December 16, 2011, wherein Ledet complained of abdominal pain, vomiting, and nausea. This issue, while listed as an assignment of error, was not briefed. Therefore, we treat this assignment as abandoned.

As we discussed in Ardoin v. Calcasieu Parish School Board, 15-814, p. 7 (La. App. 3 Cir. 2/3/16), 184 So.3d 896, 901 (quoting Charles v. Landry, 09-1161, p. 5 (La.App. 3 Cir. 3/10/10), 32 So.3d 1164, 1167-68 (citations omitted)), writ denied, 16-641 (La. 5/27/16), 192 So.3d 738:

Uniform Rules — Courts of Appeal, Rule 2-12.4 further provides that “[a]ll specifications or assignments of error must be briefed” and that the “court may consider as abandoned any specification or assignment |Kof error which has not been briefed.” Based upon that rule, this court has time and again stated that “[w]here a party advances no argument whatsoever for one of [its] alleged specific assignments of error, the court may consider that assignment of error abandoned.”

As such, we find any and all argument regarding Defendant Exhibit 14 to be abandoned.

Assignment of Error Number Four

Ledet next complains that the WCJ committed manifest error in admitting Defendant Exhibit 16, regarding the subsequent automobile accident of October 20, 2013. Ledet asserts that this evidence is irrelevant to the determination of the causation of his rheumatoid arthritis.

“Evidentiary standards in workers’ compensation cases are relaxed by comparison to those in ordinary civil actions.” Romero v. Flowers Baking Co. of Lafayette, LLC, 12-1466, p. 4 (La.App. 3 Cir. 5/1/13), 114 So.3d 522, 525, writ denied, 13-1755 (La. 11/1/13), 125 So.3d 1094.

La.R.S. 23:1317(A) provides, in pertinent part, that “[t]he workers’ compensation judge shall not be bound by technical rules of evidence ... but all findings of fact must be based upon competent evidence[.]” Our supreme court has explained:
The Legislature in fashioning a relaxed evidentiary standard for workers’ compensation proceedings envisioned the broad admission of evidence that might fall outside of the technical rules of evidence .... However, to ensure the reliability of factual findings, the Legislature has mandated that the hearing officer’s findings be based on “competent evidence.”

Loucious v. Crest Indus., 15-690, pp. 6-7 (La.App. 3 Cir. 12/16/15), 181 So.3d 956, 960 (quoting Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La. 3/4/98), 708 So.2d 375, 383).

With these relaxed rules in mind, we find that the WCJ did not commit manifest error when she allowed Defendant Exhibit 16, regarding the subsequent |9automobile accident of October 20, 2013, into the record. The accident occurred during the time Ledet was seeing doctors about his workplace accident and rheumatoid arthritis. There were questions about what he told his doctors about the automobile accident and how that would affect their opinions. It is reasonable to assume that this evidence would be relevant to the issues before the WCJ. This assignment has no merit.

Assignment of Error Number Five

Based on our affirmation of the WCJ’s judgment, we find that she was correct in failing to award attorney’s fees and penalties in this matter.

DECREE

For the reasons discussed above, the judgment of the WCJ in favor of CETCO and against Clifford Joseph Ledet is affirmed. All costs associated with these proceedings are assessed to Clifford Joseph Ledet.

AFFIRMED.

      . The workers' compensation judge also found that Ledet’s former attorney was not entitled to receive additional attorney fees, however, that issue was not appealed.