text:
    Dennis WRIGHT, Petitioner, v. Anna MORSAW, as Personal Representative of the Estate of Jordan Parsons, deceased, Patricia Fuller, and BSB Delray, LLC d/b/a Buddha Sky Bar, Respondents.
    No. 4D17-0589
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      Robert B. Resnick, Fort Lauderdale, for petitioner.
    Kara Berard Rockenbach of Link & Rockenbach, P.A., and Matthew K. Schwenke of Searcy Denney Scarola Barn-hart & Shipley, P.A., West Palm Beach, for respondent Anna Morsaw, as personal representative of the Estate of Jordan Parsons, deceased.
   Per Curiam.

Dennis Wright, the defendant in related civil and criminal cases, petitions for a writ of certiorari seeking to quash portions of a discovery order entered in the civil case requiring him to provide certain records over Fifth Amendment privilege against self-incrimination objections. We deny the petition because petitioner has not demonstrated that the trial court’s order departs from the essential requirements of law.

Petitioner was charged with various criminal offenses for an April 2016 hit-and-run accident that resulted in a pedestrian’s death. The State alleged that petitioner drove recklessly while intoxicated after having left a Delray Beach bar. After the accident, petitioner allegedly fled to a friend’s home, “posted” about the accident on social media, and hid the vehicle he had been driving before seeking its repair.

The decedent’s estate sued petitioner, his mother as owner of the vehicle, and the bar where petitioner was allegedly drinking before the accident. The operative complaint sought punitive damages and alleged that at all material times petitioner had a prolonged history of alcohol abuse that was well known to him, his friends, his mother, the bar, and the public at large. The decedent’s estate served a host of production requests which were met by petitioner’s Fifth Amendment based objections. Following a hearing on the estate’s motion to compel, the trial court ordered petitioner to'respond to specific requests.

This petition addresses four of those requests which focus on two distinct topics: finances and social media. Interrogatory number fourteen and production request number eleven require petitioner to identify bank accounts and to provide credit card statements. Interrogatory fifteen and production request number ten require petitioner to identify any and all social media names and handles and to produce digital copies of all of his social media accounts. The order also provides that petitioner shall be required to provide “signed written authorizations for release of Facebook, Instagram and Snapchat-information.” Petitioner argues that the order violates his Fifth Amendment privilege against self-incrimination because the records sought are communicative in nature and could furnish a link in the chain of evidence needed to prove him guilty in the related criminal case.

The Fifth Amendment to the United States Constitution provides in' pertinent part that no person “ ‘shall be compelled in any criminal case to be a witness against himself.’” Pisciotti v. Stephens, 940 So.2d 1217, 1220 (Fla. 4th DCA 2006) (quoting U.S. Const. Amend. V); see also Art. I, § 9, Fla. Const. “This protection exists primarily to ‘assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.’” Pisdotti, 940 So.2d at 1220 (quoting Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003). As this Court noted in Pisdotti, the Fifth Amendment privilege protects both individuals as well as .their records-. 940 So.2d at 1221. However, it “ ‘does not shield-every kind of incriminating evidence. Rather, it protects only testimonial or communicative evidence, not real or physical evidence which is not testimonial or communicative in nature.’ ” Id. at 1220 (quoting Boyle, 858 So.2d at 393). Accordingly, when a movant lodges a Fifth Amendment privilege objection to the disclosure of certain records, the trial court “must exercise its discretion and determine whether it is- reasonably possible that answers to either interrogatories or deposition questions- could evoke a response forming a link in the chain of evidence which might lead to criminal prosecution.” Appel v. Bard, 154 So.3d 1227, 1228-29 (Fla. 4th DCA 2015) (internal quotation marks and citation omitted).

In the present case, petitioner has not provided this Court with the transcript from the hearing, on the motion to compel and petitioner does not contend that he proffered information to the trial court in order to demonstrate the 'testimonial or communicative nature of the social media and financial records. In the absence of such a transcript, we cannot conclude' that the trial court- abused its discretion in ordering petitioner to respond to the discovery requests. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).

With that being said, even if we were to assume that the records at issue are testimonial or communicative in nature, petitioner still has not demonstrated how those records could furnish a link in the chain of evidence needed to prove him guilty in the related criminal case. While the financial discovery may reveal that petitioner spent money at places that serve alcohol, that alone does not link him to the crimes charged or demonstrate the extent of his drinking, on the night of the accident or at any other pertinent time. Regarding the social media records, petitioner has not demonstrated a “link” or shown that he is being asked to furnish or reveal anything that he did not already publically post. See Rendel v. Rendel, 340 So.2d 1236, 1237-38 (Fla. 4th DCA 1976) (permitting production of necessary written authorizations in order for appellant to obtain copies of account information associated with foreign accounts about which the appellee had already testified to on numerous occasions).

The petition for certiorari is accordingly denied.

Warner, May, and Damoorgian, JJ;, concur.

      . We recognize that there are many, potential issues surrounding the testimonial nature of social media and the production of passwords. See State v. Stahl, 206 So.3d 124, 131-35 (Fla. 2d DCA 2016); see also Caren Myers Morrison, Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment, 65 Ark. L. Rev. 133, 133 (2012). This case, however, does not involve the production of social media passwords.


source: Caselaw Access Project

author: PER CURIAM. MAKAR, J,,

license: Public Domain

text:
    Troy LESSARD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5300
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

ROBERTS and JAY, JJ., CONCUR;' MAKAR CONCURS with opinion.

MAKAR, J,,

concurring.-

I concur in affirming Troy Roland Les-sard’s convictions on counts of capital sexual battery and lewd or. lascivious molestation, for which he received , life sentences, but write to address his claim — raised for the first time on appeal — 'that the decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which upheld Florida’s use of six-member juries in all non-death penalty criminal cases, was wrongly decided and should be reconsidered to afford him a retrial before a twelve-member jury. Florida is the only state that requires six-member juries in life-felony cases, such as this one, and the empirical studies continue to discredit the Williams decision, but the relief Lessard seeks is a jurisprudential dark horse.

To begin, it is obvious that Williams, which dismissed the centuries-old common law practice of twelve-member juries as a mere “historical accident” and replaced it with an ad hoc “functional” approach, was based on dubious anecdotal assertions and demonstrably incorrect statistical and sociological principles that have plagued this body of jurisprudence ever since. Williams held that a six-member jury in a state court criminal proceeding was functionally the same and thereby an adequate constitutional proxy for the time-worn traditional twelve-member jury. But its reasoning foundered on glaring misinterpretations of social science research and inept methodologies, so much so that one prominent commentator said that the “quality of social science scholarship displayed [in the Court’s decisions on jury size] would not win a passing grade in a high school psychology class.”

Soon thereafter, the Court again rejected historical norms in assessing the issue of jury unanimity in state court criminal proceedings. Much like its analysis in Williams, the Court concluded that jury unanimity is not required under the Sixth Amendment — at least when juries are ten or larger — because it “does not materially contribute to the exercise of [jurors’] commonsense judgment.” Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). Applying a “functional” approach again, a plurality “perceive[d] no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one” such that “the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served,” whether unanimity is required or not. Id. at 410-11, 92 S.Ct. 1628. The various opinions, concurring and dissenting, reflected no consensus on a coherent analytical approach. In a companion case, Johnson v. Louisiana, 406 U.S. 356, 364, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), the Court addressed a tiered jury system where “less serious crimes [are] tried by five jurors with unanimous verdicts, more serious crimes [ ] required the assent of nine of 12 jurors, and for the most serious crimes a unanimous verdict of 12 jurors is stipulated.” In upholding a 9-3 verdict, the Court concluded that the differential jury system served a rational interest, the state legislature “obviously intending] to vary the difficulty of proving guilt with the gravity of the offense and the severity of the punishment.” Id. at 365, 92 S.Ct. 1620.

Its jury size/unanimity jurisprudence in a muddle, the Supreme Court tried to temper the fallout from Williams by invalidating a five-member jury, in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), but even greater confusion ensued. Two justices (Blackmun and Stevens) posited that juries of less than six members substantially threatened the constitutional guarantee of the jury trial right, notwithstanding the cost-saving and time-saving arguments that Georgia advanced. Their analysis reflected that most of the major premises underlying the functional approach in Williams were inaccurate, but rather, than overturn that decision, they, side-stepped it. Justice White asserted that the requirement that a jury be a fair cross-section of the community would be violated with juries of less than six members. And three justices (Chief Justice Burger and Justices Powell and Rehnquist) agreed that a conviction for serious offenses by juries of five members “involves grave- questions of fairness” and that “the line between five- and six- member juries is difficult to justify, but a line has to be drawn somewhere if the substance of jury trial is to be preserved.” Id. at 245-46, 98 S.Ct. 1029. Finally, three justices (Brennan, Stewart, and Marshall) concurred only in’the holding that “the Sixth and Fourteenth Amendments- require juries in criminal trials to contain moré than five persons.” Id. at 246, 98 S.Ct. 1029. Though unified in striking down the Georgia law, no coherent framework emerged (again). And the Court, by acknowledging Williams’s faulty foundation, allowed doubt in the legitimacy of its functional approach to continue.

Indeed, the next year, in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), the Court again noted' the less-than-satisfactory nature of its functional approach, this time considering whether a-conviction for a non-petty state offense by a non-unanimous six-person jury was constitutional. In overturning the conviction, the Court stated:

As in Balkw, we do.not pretend the ability to discern a priori a bright line below which the number of jurors participating in the trial or in the verdict would not permit the jury to function in the manner required by our prior cases.But having already departed from the strictly historical requirements of jury trial, it is inevitable., that lines must be drawn somewhere if the substance of the jury trial right is to be preserved.

Id. at 137, 99 S.Ct. 1623 (internal citations omitted). And thus the ad hoc line-drawing continued, most often based on the perception of whether judicial efficiencies were at the expense of a criminal defendant’s right to a,fair trial (Louisiana said, for example, that its smaller, non-unanimous juries shortened deliberation time and reduced the number of hung juries). As Judge Pos-ner put it, “judicial economy is not a trivial goal in this era of massive caseloads; and the Supreme Court, in upholding the constitutionality of the six-person jury in criminal cases, has shown that it is receptive to innovations designed to reduce the high--cost of-jury trials.” Smith v. DeRobertis, 758 F.2d 1151, 1151-52 (7th Cir. 1985) (citing Williams).

In Burch, the balance tipped in the defendant’s favor because when “a State has reduced the size of .its juries to the minimum number of jurors permitted-by the Constitution, the additional authorization of nonunanimous verdicts by such juries sufficiently threatens the constitutional principles that led to the establishment of the,size threshold that any countervailing interest of the State should yield.” 441 U.S. at 139, 99 S.Ct. 1623. Another line was thereby drawn. -

Despite repeated calls to either abandon its functional approach (and revert to the historical twelve juror standard) or at least update it by bringing it in line with modern empirical realities (some studies suggest optimal jury sizes based on multivariate statistical models), little has changed jurisprudentially in the Supreme Court since Williams' and Ballew. Part of the reason is that “[although the Supreme Court has blessed both six-person juries and non-unanimous decision rules, measured on a national scale, neither decision has had great impact. The vast majority of states still choose, twelve-person, unanimous juries to convict in serious criminal cases.” Forty-five states require twelve unanimous jurors to convict for any felony (federal felony trials require twelve jurors); a few states permit six to eight jurors for specified felonies.

Florida and Connecticut are the anomalies. As the Second District noted: “Florida is one of only two remaining states that regularly use six jurors to decide the outcome of criminal cases in which life imprisonment is a mandatory sentence if the defendant is found guilty of the charged offense.” Gonzalez v, State, 982 So.2d 77, 78 (Fla. 2d DCA 2008) (footnote omitted) (noting that “[t]he common-law tradition of twelve jurors for such important criminal cases is overwhelmingly recognized as the better policy throughout the United States”); see also Alisa Smith & Michael J. Saks, The Case for Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical Evidence, 60 Fla. L. Rev. 441, 443 (2008) (“The only other state [besides Florida] with six-person juries in felony cases is Connecticut. All other state and federal felony prosecutions require twelve-person juries. The states that have the death penalty, including Florida, require twelve-person juries in all capital or death cases.”).

Connecticut, though requiring six-member juries, provides that no person accused of an offense punishable by “life imprisonment without the possibility of release or life imprisonment, shall be tried by a jury of less than twelve without such person’s consent.” Conn. Gen. Stat. Ann. § 54-82 (2017) (amended in 2012). That leaves Florida with the distinction of being the only state that requires six-member juries for non-capital crimes punishable by life imprisonment, which is the sentence that Lessard received on the capital sexual battery count (life in prison without parole) and the lewd and lascivious, molestation of a minor count (life in prison with a minimum mandatory of twenty-five years).

Though Florida is alone in using six-member juries for life felonies, Lessard’s demand for a twelve-member jury for the serious charges against him is a non-starter. No federal constitutional impediment stands in the way of a six-person jury in a state criminal court. And our state supreme court, as well as the district courts, have uniformly rejected a claimed constitutional right to a twelve-member jury in similar situations; certain capital offenses, for which only a life sentence is now permissible rather than death, require only a six-member jury. State v. Hogan, 451 So.2d 844, 845-46 (Fla. 1984) (“Sexual battery of a child, therefore, while still defined qs a ‘capital’ crime by the legislature, is not capital in the sense that a defendant might be put to death” such that “a twelve-person jury is not required when a person is tried under that statute.”).

As Judge Altenbernd’s scholarly opinion noted almost a decade ago, an argument in favor of twelve-member juries for felonies involving mandatory life sentences without parole “is worthy of consideration, but this court has no authority to overrule the precedent from the United States Supreme Court that endorsed the use of a jury with only six members as constitutional, nor the Florida law that authorizes and perhaps compels the use of six-member juries in non-capital criminal cases.” Gonzalez, 982 So.2d at 78. Instead, jury size is now principally a legislative branch question, one that Florida’s legislature continues to debate. Beyond that, the future of jury size jurisprudence lies in the United States Supreme Court, which could update its functional approach based on contemporary social science research, abandon Williams and return to the origi-nalist position of twelve-member juries, or — like it has done for four decades— leave it be.

      . See, e,g„ Barbara Luppi & Francesco Parish Jury Size and the Hung-Jury Paradox, 42 J. Legal Stud. 399 (2013). The authors note that:
      The 12-person jury is a timeworn institution; a staple of novels, stage, and cinemá; and well established in the common-law tradition, the historical tendrils of which extend from the medieval courts of England. From as far back as the twelfth century, trials were decided by juries of 12, a number that by the fourteenth century had become so firmly cemented in the legal tradition that it subsequently acquired near mystical significance. The 12-person jury later made its way to the American colonies and persisted after the Revolution as a constitutional right in the United States.
      Id. at 399-400. See also Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting that the “historical foundation" for jury' trial principles “extends down centuries into the common law" such that “trial by jury has been understood to require that 'the truth of every accusation, whether preferred in. the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighb-ours ,... ’ 4 W. Blackstone, Commentaries on the Laws of England 343 (1769)[,]”) (italics in original opinion; bold emphasis added) (internal citations omitted); see also Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (noting “that the 'truth of evety accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of; his equals and neighbours[ ]’ ” as a “longstanding tenet[] of common-law criminal jurisprudence”) (citing Blackstone) (emphasis added); see also Baldwin v. New York, 399 U.S. 117, 122, 90 S.Ct. 1914, 26 L.Ed.2d 446 (1970) (Harlan, J., dissenting) (“With all respect, I consider that before today it would have been unthinlcable to suggest that the Sixth Amendment’s right to a trial by jury is satisfied by a jury of six, or less, as is left open by the Court's opinion in Williams, or by less than a unanimous verdict, a question also reserved in today’s, decision.’’). The 1954 screenplay Twelve Angry Men — much like the oft-repeated Mi
        randa warnings in movies and television shows — has fixed twelve as having special historic significance in popular culture.

      . Williams, 399 U.S. at 90-91, 90 S.Ct. 1893. The Court held in Duncan v. Louisiana, 391 U.S. 145, 148-49, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the right to jury trial in the Sixth Amendment is a "fundamental” right that applies to the States via the Due Process Clause of the Fourteenth Amendment. In dissent, Justice Harlan bemoaned that the "circumvention of history is compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members and have fixed expectations accordingly.” Baldwin, 399 U.S. at 126, 90 S.Ct. 1914 (Harlan, J., dissenting).

      . See Shawn Kolitch, Constitutional Fact Finding and the Appropriate Use of Empirical Data in Constitutional Law, 10 Lewis & Clark L. Rev. 673, 689 (2006) (noting that the Supreme Court’s newfound functional approach was flawed because its "interpretation of the available empirical data was questionable from the beginning, and illustrates many of the difficulties the Court faces when attempting to support its holdings with empirical data”); Robert H. Miller, Six of One Is Not A Dozen of the Other: A Reexamination of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 622 (1998) (discussing "the critical ways in which the Court’s misinterpretation and misapplication of social-science research in Williams and its progeny triggered the ‘unthinkable’ dismantling of an irrevocable constitutional cornerstone”) (footnote omitted); Baldwin, 399 U.S. at 126, 90 S.Ct. 1914 (“The Court's elaboration of what is required provides no standard and vexes the meaning of the right to a jury trial in federal courts, as well as state courts, by uncertainty. Can it be doubted that a unanimous jury of 12 provides a greater safeguard than a majority vote of six? The uncertainty that will henceforth plague the meaning of trial by jury is itself a further sufficient reason for not hoisting the anchor to history.") (Harlan, J., dissenting).

      . Under the Florida constitution, the "qualifications and the number of jurors, not fewer than six, shall be fixed by law.” Art. I, § 22, Fla. Const. By statute, Florida specifies that "[tjwelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.” § 913.10, Fla. Stat. (2017).

      . Miller, Six of One Is Not A Dozen of the Other, 146 U. Pa. L. Rev. at 678 (1998) (quoting Michael J. Saks, Ignorance of Science Is No Excuse, 10 Trial, Nov.-Dee. 1974, at 18).

      . Justice Blackmun’s opinion found:
      • "First, recent empirical data suggest that progressively smaller juries are less likely to foster effective group deliberation. At some point, this decline leads to . inaccurate fact-finding and incorrect application of the common sense of the community to the facts. Generally, a positive correlation exists between group size and the quality of both group performance and group productivity.”
      • "Second, the data now raise doubts about the accuracy of the results achieved by smaller and smaller panels. Statistical studies suggest that the risk of convicting an innocent person (Type I error) rises as the size of the jury diminishes.”
      • "Third, the data suggest that the verdicts of jury deliberation in criminal cases will vary as juries become smaller, and that the variance amounts to an imbalance to the detriment of one side, the defense.”
      • "Fourth, what has just been said about the presence of minority viewpoint as juries decrease in size foretells problems not only for jury decisionmaking, but also for the representation of minoriiy groups in the community.”
      • "Fifth, several authors have identified in jury research methodological problems tending to mask differences in the operation of smaller and larger juries” such that standard variances in smaller juries were greater.
      Ballew, 435 U.S. at 232-39, 98 S.Ct. 1029.

      . See, e.g., Randolph N. Jonalcait, Originalism As the Defense Attorney's Friend: Expanding Sixth Amendment Rights, Champion, May 2009, at 38, 40 (discussing that principles of originalism create a basis for a constitutional challenge to revert to the historic standard of a twelve-member jury).

      . Joan L. Larsen, Ancient Juries and Modern Judges: Originalism's Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959, 1000-01 (2010) (footnotes omitted) (noting that “[¡juries, in the American imagination, broadly defined, are still twelve and decide unanimously. Dollars and cents calculations or more traditional reliance interests in those states that have gone a different way may still persuade the' Court that its cases should stand, but nothing outside of formal doctrine — no constitutional expectation — stands as an obstacle to their demise.”).

      . Two professors, who advocate for either a return to the historic jury size of twelve or a conscientious, updated application of the functional approach, surveyed state jury size as follows:
      Although some states reduced the size of the jury in criminal prosecutions to six persons (and Georgia attempted to reduce the size to five) following the Williams decision, most states currently retain twelve-person juries in felony cases. Only six states permit juries of fewer than twelve in felony prosecutions, and of those- only four permit six-person juries. Indiana requires twelve-person juries for class A, B, and C felonies, and six-person juries in all other felony cases. Massachusetts provides twelve-person juries for all Superior Court cases and a de novo jury trial for all" cases appealed from a guilty verdict by a six-person jury in district court cases. Thus no person accused of a felony “in Massachusetts' must settle for a six-person jury. Arizona provides twelve-person juries in cases where' the sentence may be more than thirty years and eight-person -juries in other felony cases. In Utah, eight-person juries are permitted in felony prosecutions. ■ ■ ■
      Alisa Smith & Michael J. Saks, The Case for Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical Evidence, 60 Fla. L. Rev. 441, 443 (2008) (footnotes omitted).

      . Id. (The only other state with six-person juries in felony cases is Connecticut. All other state and federal felony prosecutions require twelve-person juries. The states that have the death penalty, including Florida, require twelve-person juries in all capital or death cases.).

      .Lessard asserts that the Florida Supreme Court in Hogan violated separation of powers principles by negating the statutory twelve-member jury requirement in capital cases, urging that the Court “as presently constituted” ought to revisit the issue. As to the capital sexual battery count, he argues:
      In light of special rules of evidence authorizing admission of hearsay and collateral-crime evidence in molestation cases, precedent excusing such cases from requirements that the date of offense be alleged with specificity, and society’s revulsion at child molestation, the Legislature may have wished to maintain a protective counterweight in the form of a twelve-person jury in prosecutions for molestation compelling a life sentence.
      Lessard asks that we certify a question (“Should the court recede from its holding in State v. Hogan, 451 So.2d 844 (Fla. 1984), that Florida law does not compel a twelve-person in a trial for ‘capital’ sexual battery?”), but a similar question was certified by this Court in 2003 and rejected, see Hall v. State, 853 So.2d 546, 549 (Fla. 1st DCA 2003) ("Whether a 12-person jury is required in a first degree murder case where the death penalty may not be imposed as a matter of law.”), rev, denied, 865 So.2d 480 (Fla. 2003), making certification now less compelling. Lessard points to the recent empirical work on jury size as a basis for certification, but the Florida Supreme Court would be in no better position to evaluate those studies or do its own empirical work than would the Florida Legislature, which has been considering jury size as to life felonies in recent years. Whether the U.S. Supreme Court might delve into such empirical matters is a different question.

      . See, e.g., 2017 Florida Senate Bill No. 962, (proposing change to section 913.10, Florida Statutes, to say: "Number of jurors.-Twelve persons shall constitute a jury to try all capital and life felony cases, and six persons shall constitute a jury to try all other criminal cases.”). Since 2014, at least one bill has been proposed to make this type of change to the statute.

      . The Court has turned down petitions in 13-1179, Irving v. Florida; 08-6833, Gonzalez v. Florida; and 08-6868, Deltoro v. Florida.


author: PER CURIAM.

text:
    TT OF INDIAN RIVER, INC. d/b/a Mercedes-Benz of Melbourne and James C. Dorman, Appellants, v. Heidi FORTSON, Appellee.
    Case No. 5D16-2001
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017
    Richard A. Sherman, Sr., and James W. Sherman, of Richard A. Sherman, P.A., Fort Lauderdale, and Chris Killer and Todd Bohnenstiehl, of Law Offices of J. Christopher Norris, Orlando, for Appellants..
    Thomas J. Seider and Celerie H. Hum-phries, of Brannock & Humphries, Tampa, arid Mark S. Roman and Morgan L. Gay-nor, of Roman & Gaynor, Clearwater, and Douglas R. Beam, of Douglas R. Beam, P.A., Melbourne, for Appellee.
   PER CURIAM.

Appellants, TT of Indian River, Inc. (d/b/a Mercedes-Benz of Melbourne) and James C. Dorman, appeal a final judgment rendered after a jury verdict awarding damages to Appellee due to an automobile accident. We find the trial court erred when it allowed Appellee to question Mercedes-Benz’s corporate representative about the automobile accident even though liability was not at issue. We reverse on that ground, and need not reach the remaining issues raised by Appellants.

At the start of trial, Appellants moved to quash a subpoena of the corporate representative, noting Appellants’ stipulation to liability, and that the corporate representative “has no personal knowledge of anything” including the damages issues. As Appellants highlight, Appellee’s counsel refused to disclose any basis for calling the corporate representative, stating that he did not want to reveal “trial strategy.”

The trial court denied the motion to quash and allowed Appellee to call the corporate representative. During direct examination, Appellee’s counsel asked numerous questions that were not related to damages, but instead tended to denigrate Mercedes-Benz and inflame the jury, including but not limited to, asking the corporate representative: (1) if “Mercedes-Benz of Melbourne admits guilt”; (2) after establishing that the accident occurred in 2012, “isn’t it true that until last' week, in 2016, that that was the first time Mercedes-Benz of Melbourne admitted guilt”; (3) “even though Mercedes-Benz of Melbourne is admitting guilt for negligence ... we just heard that Mercedes-Benz’s defense is that [Appellee] is making up her injuries”; (4) “[n]ow I believe your testimony is that it’s your position that Mercedes-Benz of Melbourne has admitted guilt as far as negligence, correct”; (5) “[s]o Mercedes-Benz of Melbourne is totally responsible for this motor vehicle crash”; and Appellee “is totally innocent as far as negligence”; (6) about her designation as the person with the most knowledge of the accident investigation even though she “did that without ... doing any investigation into this crash at all”; (7) if her accident investigation was limited to reviewing the accident report and questioning, “[t]hat was it ... on behalf of Mercedes-Benz of Melbourne, as the risk manager, that is the only investigation you did into a major crash”; ■ (8) “[a]nd so we have a full picture, you answered questions that we’ve relied on in this lawsuit on behalf of Mercedes-Benz of Melbourne when you did not work for Mercedes-Benz of Melbourne”;, and (9) “[i]n fact, you’re only here today because we subpoenaed you; is that correct?” . .

At closing argument, Appellee’s counsel then highlighted the testimony of the corporate representative when he asked the jury:

You know, they bring someone who is identified as in risk management with the Defendant, and she says that all she did to investigate was look at an accident report. And then we find out that she'didn’t even work for them. What does that mean?

“When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.” Swanson v. Robles, 128 So.3d 915, 918 (Fla. 2d DCA 2013) (citing Metro. Dade Cty. v. Cox, 453 So.2d 1171, 1172-73 (Fla. 3d DCA 1984) (citing Barton v. Miami Transit Co., 42 So.2d 849 (Fla. 1949))). Moreover, as this court has recognized, it is improper to refer to “guilt” or “innocence” at a civil trial on negligence. See Irizarry v. Moore, 84 So.3d 1069, 1071 (Fla. 5th DCA 2012).

We cannot agree with Appellee that this error was harmless. The great majority of Appellee’s direct examination of the corporate representative was not only entirely irrelevant to damages, but was also formulated with the inescapable end of inflaming the jury. For instance, Appellee’s counsel inexplicably continued using the term “guilt” to describe Appellants’ stipulation to liability even after the trial court sustained an objection to the use of that term, and described his own client’s- conduct as “innocent.” The error was then compounded by counsel’s .closing argument where he not only reminded the jury of the - corporate representative’s testimony, but also asked a rhetorical question which.was consistent 'with the improper themes of direct examination implying collusion, indifference, or misconduct by Appellants. As such, we reverse for a flew trial on damages.

REVERSED and REMANDED.

COHEN, C.J., EISNÁUGLÉ, J., and EGAN, R.J., Associate Judge, concur.


author: HIGGINBOTHAM, J. HOLDRIDGE, J.,

text:
    A. Kell MCINNIS v. Lamiesha BONTON, Allstate Insurance Company, and USAA Casualty Insurance Company
    NO. 2017 CA 0088
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 21, 2017

      Keith L. Richardson, Sean Avocato, Baton Rouge, LA, Attorney for Defendant-Appellee, USAA Casualty Insurance Company .
    Aub A. Ward, Baton Rouge, LA, Attorney for Plaintiff-Appellant, A. Kell Mcln-nis
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

| ¡¿This personal injury suit arises out of a minor automobile accident. Plaintiff appeals a trial, court judgment rendered in, accordance with a jury verdict, where the jury unanimously found that the accident did not cause plaintiff any damages. The trial court’s judgment dismissed all of the plaintiffs claims against the sole remaining defendant, plaintiffs own uninsured/undei--insured motorist (UM) carrier.

FACTS AND PROCEDURAL HISTORY

On November 28, 2012, Mr. A. Kell Mclnnis was stopped in heavy traffic on Perkins Road near Acadian Thruway in Baton Rouge, Louisiana. Mr. Mclnnis’s vehicle was hit from behind by a vehicle driven by Ms. Laniiesha Bonton, who admitted that she was momentarily distracted while checking on her crying child and she did not realize that Mr. Mclnnis’s vehicle had stopped. While the damage to both vehicles was minor, Mr. Mclnnis described the impact as a jolt that rocked him back in his seat. Mr. Mclnnis did not report being injured immediately after the accident; however, his neck, shoulder, and back began to hurt during the early morning hours the following day. Mr. Mclnnis, who. was almost 66 years old at-the time of trial, had a long history of neck and back pain that had resulted in the need for physical therapy, epidural steroid injections (ESIs), three back surgeries, and one neck surgery over the years prior to the accident. Because he was primarily concerned about damagte to his recent neck fusion, he scheduled an appointment for two weeks after the accident, on December 10, 2012, with his orthopedic spine surgeon, Dr. Henry Louis Eiserloh, III, who had been treating Mr. Mclnnis for neck and back pain that predated the accident. After the accident, Mr. Mclnnis continued to be treated by Dr. Eiserloh, undergoing several ESIs, physical therapy, and two surgical procedures on his low back.

As a-result of the accident, Mr. Mclnnis filed a petition for damages against Ms. Bonton and her- liability insurer, Allstate Insurance Company, as well as his own |aUM and medical payments insurer, USAA Casualty Insurance Company. Prior to trial, Mr. Mclnnis settled his claims with Ms,' Bonton’s primary insurer, Allstate, for its $25,000.00 policy limits, and USAA unconditionally tendered $75,000.00 to Mr. Mclnnis under its UM coverage, alpng with another $5,000.00 under the medical payment provision of its policy. After it was stipulated that Ms. Bonton was solely at fault for the accident, the only remaining issues for trial were causation, the extent of Mr. Mclnnis’s injuries and/or aggravation of pre-existing injuries, and damages. The case proceeded to a jury trial solely against USAA. The jury’s unanimous verdict was that., Mr,. Mclnnis did not sustain damages as a result of the accident. The trial court signed a judgment in accordance with the jury’s verdict and dismissed . all of Mr. Mclnnis’s claims against USAA. The trial court also denied Mr. Mclnnis’s motion for judgment notwithstanding the verdict (JNOV) and, alternatively, motion for new trial. This appeal ensued.

DISCUSSION

Mr. Mclnnis raises two assignments of error: (1) the jury’s verdict’ was clearly inconsistent with the great weight of the evidence and law; and (2) the trial court erred in denying his motion for new trial. Mr. Mclnnis argues that the overwhelming evidence supports a finding that the accident aggravated his pre-existing back injury. He further maintains that since the jury’s verdict was contrary to the evidence and law, a new trial should have been granted by the trial court.

In contrast, USAA contends that the jury’s verdict was reasonable in light of the conflicting testimony ’ concerning Mr. Mclnnis’s extensive pre-existing 1 ¿degenerative back condition and the lack of objective findings of a new injury after the accident. USAA further asserts that since the jury’s verdict was reasonable and supported by the evidence in the record, there are no grounds for a new trial.

In a trial where causation and credibility are major issues, a jury’s findings of fact are entitled to great deference. Guillory v. Insurance Co. of North America, 96-1084 (La. 4/8/97), 692 So.2d 1029, 1032. An appellate court’s review of factual findings is governed by the manifest error/clearly wrong standard of review. Touchard v. Slemco Electric Foundation, 99-3577 (La. 10/17/00), 769 So.2d 1200, 1204. It is a determination for the factfin-der to discern whether a person has suffered an aggravation of a pre-existing condition. Id., 769 So.2d at 1202. When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id., 769 So.2d at 1204; Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Moreover, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous. Rosell, 549 So.2d at 844, For the reviewing court, the issue to be resolved is not whether the factfinder was wrong, but whether the factfinder’s conclusions were reasonable,in light of the record reviewed, in its entirety. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

Before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the plaintiffs current status must be established. Lamb v. Berry, 35,347 (La. App. 2d Cir. 12/28/01), 803 So.2d 1084, 1086. The test for determining a causal relationship between an accident and subsequent injuries in a personal injury suit is whether the plaintiff proved through medical testimony that it was more probable than not that subsequent injuries were caused by trauma suffered in the accident. Id. The plaintiff is aided in establishing |Rthis-bur-den by the legal presumption that a medical condition producing disability is -presumed to have resulted from the accident if, before the accident, the injured person was in good health, but the disabling condition manifested itself shortly after the accident. Id.; Williamson v. St. Francis Medical Center, Inc., 559 So.2d 929, 932 (La. App. 2d Cir. 1990).

In this case, the jury was presented with two competing views regarding the nature, extent, and cause of Mr. Mclnnis’s back condition. The jury obviously determined that Mr. Mclnnis had not met his burden of proving that the November 2012 accident was the cause of his degenerative back condition or any of his ongoing back pain that eventually led him to undergo additional back surgeries. Our review of the trial testimony, depositions, and physical evidence submitted at trial reveals that the record supports the jury’s determination that Mr. Mclnnis did not carry his burden of proof on causation. The vast majority of the medical evidence showed no objective findings to indicate that Mr. Mclnnis’s back condition and symptoms after the accident were caused by the accident or were any worse after the accident.

An expert in the field of neuroradiology, Dr. Curtis Ray Partington, testified in a video trial deposition that he had reviewed the magnetic resonance imaging (MRI) films of Mr. Mclnnis’s back from before and after the accident, date, and he stated that the films were “essentially identical.” Dr. Partington was also of the opinion that the types of degenerative arthritic changes in Mr. Mclnnis’s back can happen whether someone is involved in a car accident or not. Dr. Partington pointed out that the disc herniation and arthritis that was evident in Mr. Mclnnis’s back “did not change at 'all between the [MRI] examinations done before his accident and after his accident.” He concluded that the accident did not cause any change in Mr. Melnnis’s back condition.

The jury also heard testimony from a physical therapist, Dr. Seth Kaplan, who indicated that Mr. Mclnnis had been a patient of his physical therapy clinic for many | ¿years, with a long histoiy of back, neck, and hip problems and procedures spanning decades prior to the November 2012 accident. Dr. Kaplan stated that Mr. Mclnnis was being treated for a flareup of low back pain just before the time of the accident in the summer of 2012, and he was discharged in September 2012 when his overall condition had not changed. One month later, in October 2012, Mr. Mclnnis was scheduled for an ESI in his lower back, which gave him some relief right before the accident.

Mr. Mclnnis’s testimony that physical therapy and ESI treatments no longer helped his back pain after the accident, seemingly was not enough to convince the jury that the accident had aggravated his pre-existing back condition. The jury heard a similar theory in Dr. Eiserloh’s explanation that Mr. Mclnnis’s back pain was controllable before the accident, but after the accident his symptoms were exacerbated. Dr. Eiserloh acknowledged that Mr. Mclnnis would have inevitably needed surgery in the future anyway, but maybe not as soon. He based his opinion on causation by relying on Mr. Mclnnis’s symptoms as related to him by Mr. Mclnnis, which is a subjective finding. Even so, Dr. Eiserloh admitted that the pre-accident and post-accident MRI’s did not reveal any objective findings of a change in Mr. Mcln-nis’s back condition, and Mr. Mclnnis’s degenerative back condition would have eventually gotten worse even if he had not been in an accident.

Apparently, the jury credited Dr. Partington’s and Dr. Kaplan’s testimony, and decided to give them testimony more weight, while rejecting Mr. Mclnnis’s version of the events and the explanations and opinions of his physician, Dr. Eiserloh. The jury may accept or reject a medical expert’s opinion after weighing and evaluating medical testimony. See Merrells v. State Farm Mut. Auto. Ins. Co., 33,404 (La. App. 2d Cir. 6/21/00), 764 So.2d 1182, 1185. The jury is not bound to accept a plaintiff’s perception, or any other witness’ perception, of the nature and extent of his injuries. Stevenson v. Serth, 2014-846 (La. App. 5th Cir. 3/25/15), 169 So.3d 612, 616. Further, the jury can choose to reject all of the testimony of any witness or may believe and accept any part of a witness’ testimony and reject any other part. Id. Because the record reveals a reasonable factual basis for the jury’s determination that there was insufficient proof of a causal link between the accident and Mr. Mcln-nis’s degenerative back condition that led to his surgeries after the accident, we will not disturb the permissible factual conclusions drawn by the jury. Mr. Mclnnis’s first assignment of error is without merit.

In his second assignment of error, Mr. Mclnnis claims that the trial court erred in denying his motion for new trial, because the jury’s verdict was clearly contrary to the law and evidence. See La. Code Civ. P. art. 1972(1). The granting or denying of a motion for new trial is within the discretion of the trial court. Davis v. Witt, 2002-3102 (La. 7/2/03), 851 So.2d 1119, 1130. However, this discretion does not imply that the trial court may freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution. Id. In a motion for new trial, the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions, and evaluate witness credibility to determine whether the jury erred in giving too much credence to an unreliable witness. Hunter v. State ex rel. LSU Medical School, 2005-0311 (La. App. 1st Cir. 3/29/06), 934 So.2d 760, 764, writ denied, 2006-0937 (La. 11/3/06), 940 So.2d 653. The applicable standard of review is whether the trial court abused its discretion. See Broussard v. Stack, 95-2508 (La. App. 1st Cir. 9/27/96), 680 So.2d 771, 781. Moreover, new trials are not favored, especially when the jury verdict or judgment is supported by the record. Id. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Hunter, 934 So.2d at 765.

For the same reasons that we have already determined that the jury was not manifestly erroneous in finding Mr. Meln-nis’s injuries were not causally connected |Rto the accident, we further find that the trial court did not err in denying Mr. Mclnnis’s motion for new trial. The jury’s and the trial court’s conclusions are reasonable and well supported by the record that contained significant prior medical treatment for the same degenerative back condition, as well as evidence of a very minimal collision for the accident at issue. The jury’s verdict was largely based upon credibility determinations and weighing of conflicting evidence, which we decline to disturb. The jury’s verdict was not contrary to the law and evidence, and did not result in a miscarriage of justice. Therefore, the trial court did not err or abuse its discretion in refusing to grant a new trial.

CONCLUSION

For the above reasons, we maintain the appeal and affirm the trial court’s judgment rendered in accordance with the jury’s verdict. We also affirm the trial court’s judgment denying the motion for a new trial. All 'costs of this appeal are assessed to plaintifi/appellant, Mr. A. Kell Mclnnis.

APPEAL MAINTAINED; AFFIRMED.

Holdridge J. concurs for the reasons assigned

HOLDRIDGE, J.,

concurs.

|J concur in the result. I find that the jury’s verdict was manifestly erroneous in holding that Mr. Mclnnis did hot sustain any injuries or damages which were caused by the accident. However, after a de novo review of the record, I do not find that the total amount of the plaintiffs injuries, the aggravation of his pre-existing conditions, and ■ his damages exceed the $100,000.00 amount which he already received from the primary insurer and his UM insurer.

      . This court, ex proprio motu, issued a rule to show cause order concerning the original trial court judgment signed on June 22, 2016, because the outcome as to all defendants was not specified in the judgment. This court’s order remanded the matter to the trial court for the limited'purpose of allowing the trial court to sign a judgment addressing the apparent defect and then supplement the appellate court record. A supplemental judgment was signed on February 21, 2017, and the record was supplemented. The supplemental judgment clarified that all claims against all defendants have been dismissed; therefore, we maintain the appeal.

      . Mr, Mclnnis does not assign error to the trial court’s denial of his motion for JNOV.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. KEE FOOD, INC., Kassim Nagi, Tawfiq Ali Almansoob, Mohamed Nagi, Southla, LLC
    NO. 2017 CA 0127
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 21, 2017

      Mark D. Plaisance, Thibodaux, LA, Attorney for Defendants-Appellants, Kee Food, Inc., Kassim Nagi, Mohamed Nagi, and Southla, LLC.
    Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Jason Paul Lyons, Assistant District Attorney, Houma, LA, Attorneys for Plaintiff-Appellee, State of Louisiana
    William F. Dodd, Houma, LA, Attorney for Plaintiff-Appellee, Terrebonne Parish Sheriffs Office
    Justin R. Austin, Baton Rouge, LA, Attorney for Plaintiff-Appellee, Coastal Commerce Bank
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

lain this forfeiture proceeding, the defendants assert that the trial court erred in granting summary judgment in favor of the State because service of the State’s motion for summary judgment was insufficient. Additionally, the defendants assert that the trial court erred in not dismissing the State’s petition for forfeiture due to the State’s failure to timely request that the matter be set for hearing.

FACTS AND PROCEDURAL HISTORY

Kassim Nagi and Tawfiq Ali Almansoob were arrested in June of 2013 as part of an investigation into the sale of synthetic ean-nabinoids on the premises of the convenience store, Kee Food, Inc. Subsequently, various funds were seized from multiple bank accounts related to Kee Food. A large amount of cash was also seized from inside the store premises and from a safe deposit box at Coastal Commerce Bank. Additionally, a constructive seizure of the premises was perfected by the State filing a lien in the Terrebonne Parish Public Records.

The Seizure and Controlled Dangerous Substances Property Forfeiture Act, La. R.S. 40:2601, et seq., (“the act”) allows law enforcement officials to seize illegal drugs and property constituting the proceeds of any drug-related conduct. Pursuant to the act on September 20, 2013, the State of Louisiana filed a petition for forfeiture in personam against Kee Food, Southla, LLC, the limited liability company that owned the premises from which Kee Food operated its store, Tawfiq, Kassim, and his father, Mohamed Nagi. Additionally, the State named numerous defendants in rem. According to the State’s petition, the in personam defendants, individually and through Kee Food, operated a convenience store located at 6957 West Park Avenue in Houma, Louisiana, and on numerous occasions distributed synthetic cannabinoids as part of its business operations. The proceeds from the sale of the synthetic canna-binoids were kept in the cash register for the business as well as various other allocations and were co-mingled with proceeds of legitimate sales of merchandise. Prior to the filing of the State’s forfeiture petition, Mohamed returned to his native country of Yemen, where he has since remained.

In response to the State’s petition, through counsel, Kee Food, Kassim, Mohamed, and Southla (hereinafter referred to collectively as the defendants) answered and asserted claims pursuant to La. R.S. 40:2610, seeking immediate release of the seized property and termination of any forfeiture proceedings. The defendants maintained that certain seized funds were from the sale of legitimate merchandise and were not derived from or connected to any illegal activity. "In the claims submitted on behalf of Kee Food, Kassim acknowledged that he is the agent, manager, and part owner of Kee Food. Kassim, through a power of attorney executed by Mohamed, asserted claims on behalf of Mohamed. Additionally, through the power of attorney by Mohamed and the resolution of Southla, Kassim was allowed to act on behalf of Southla as it relates to any funds and/or property seized by the State of Louisiana and/or Terrebonne Parish. Kas-sim asserted claims on behalf of Southla.

On January 22, 2015, the defendants filed a motion to dismiss the civil forfeiture proceedings and for return of the seized property based on the State’s failure to seek a hearing within sixty days of the service of the petition for forfeiture in accordance with La. R.S.' 40:2612(G) and La. R.S. 40:2613(F). On April.20, 2015, the trial court signed a judgment denying the defendants’ motion to dismiss. On June 15, 2015, the State filed a motion and order to set a trial date. Subsequently, counsel for the defendants withdrew from the.case.

Prior to trial, the State filed a motion for summary judgment contending that the admissions, depositions, and records from the criminal matter proved that no |4genuine. issue of material fact remained. On May 18, 2016, the State’s • motion for summáry judgment was personally served on Kassim, individually and on behalf of Mohamed, Kee Food and Southla at the Terrebonne Parish Criminal Justice Complex where Kassim was awaiting his criminal trial for charges related to the sale and distribution of synthetic cannabinoids.

After a hearing in which Kassim appeared in proper person, the trial court granted summary judgment in favor of the State and entered a judgment forfeiting the funds and property at issue to the State. It is from this judgment that the defendants appeal contending that: 1) because Mohamed’s power of attorney did not specifically appoint Kassim as an agent for service of process, service on Kassim was without legal effect and the summary judgment is absolutely null; 2) because the record is silent as to service on Kassim, the summary judgment against him is absolutely null; and 3) the trial court erred by not dismissing the matter for untimeliness as the State failed to seek a hearing within 60, days as required by La. R.S. 40:2612(G).

. LAW AND ANALYSIS

I. Service of Process

The defendants assert that the judgment rendered in favor of the State is null because service of process on the motion for summary judgment was without legal effect as to Mohamed, Kee Food, and Southla since Kassim was not Kee Food or Southla’s agent for service of process, and the power of attorney did not specifically appoint Kassim as Mohamed’s agent for service of process." Additionally, the defendants contend that service of process on Kassim was not properly made under La. Code Civ. P. art. 1235.1, which provides for service on an incarcerated individual.

LA motion for summary judgment is a contradictory proceeding that requires service of process. La. Code Civ. P. arts. 1313 and 1314. However, a party complaining of insufficient service must file a declinatory exception and request a ruling on the exception prior to submitting to a hearing on the merits of the motion for summary judgment. Strickland v. Board of Sup’rs of Louisiana State Univ. and Agr. and Mech. College, 432 So.2d 964, 966 (La. App. 4th Cir. 1983); LeBlanc v. Landry, 371 So.2d 1276, 1278-1279 (La. App. 3d Cir. 1979). A party who fails to file an exception of insufficient service and appears and argues the merits of a motion for summary judgment waives the right to object to improper service. La. Code Civ. P. art, 925; In Re Medical Review Panel for Claim of Brunet, 578 So.2d 1011, 1013 (La. App. 4th Cir. 1991). The exception must be in writing. See La. Code Civ. P. art. 924. In this matter, Kassim failed to file a declinatory exception raising the objection of insufficiency of service of process prior to appearing and arguing the motion for summary judgment filed by the State. Kassim also failed to orally object to service of process at the hearing on the motion for summary judgment. Thus, Kassim waived the right to object to improper service on him.

Next, we consider whether personal service of the motion for summary judgment on Kassim on behalf of Mohamed, Kee Food, and Southla was proper. Generally, a question regarding the sufficiency of service cannot be raised for the first time on appeal, but rather should be raised in a suit to annul the judgment. La. Code Civ. P. arts. 925, 928, and 2002; Corte v. Cash Technologies, Inc., 2002-0846 (La. App. 1st Cir. 4/2/03), 843 So.2d 1162, 1166; Boyce Machinery Corp. v. Interstate Paving Corp., 356 So.2d 505, 506-507 (La. App. 1st Cir. 1977). The practical effect behind requiring a defendant to bring an action in nullity is to permit the introduction of additional evidence as to the mode and execution of service of process. However, in this matter although defendants did not raise the issue, the trial IfiCourt had before it all relevant evidence and thoroughly considered whether service of the motion for summary judgment on Kassim, on behalf of Mohamed, Kee Food, and Southla was sufficient.

Louisiana Code of Civil Procedure Article 1314(A) provides that a pleading that is required to be served, but may not be served under Article 1313 because it sets a court date, shall be served by the sheriff by service on the adverse party in any manner permitted under Articles 1231 through 1266, by personal service on the counsel of record of the adverse party, or by delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known. The obvious purpose of Articles 1313 and 1314 is to fulfill the constitutional requirements of due process notice, as set forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See Rawley v. Rawley, 357 So.2d 286, 289 (La. App. 1st Cir.), writ denied, 357 So.2d 1154 (La. 1978), cert denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978). At a minimum, the words of the due process clause require that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Mullane, 70 S.Ct. at 656-657.

The power of attorney executed by Mohamed in favor of Kassim allowed Kas-sim to act in the name of and on behalf of Mohamed, “[t]o appear before all courts and to prosecute, defend, or compromise and settle by agreement, arbitration, or otherwise to sign all pleadings and do all things necessary to obtain writs of attachment, sequestration and injunction and to take appeals and, in such instances, .to furnish the requisite security bond.” Although Mohamed gave a power of attorney to Kassim that included the ability to assert claims on behalf of Mohamed, it was not specific enough to permit Kassim to accept service on behalf of Mohamed. Louisiana Code of Civil Procedure article 5251(2) defines “agent for service of process” as the “agent designated by a person or by law to receive service of process |7in actions and proceedings brought against him in the courts in this state.” A general power of attorney that permits an agent to represent another in matters of litigation, which does not specifically designate an agent for service of process, is insufficient to constitute such a designation and service on that agent is without effect. Barnett v. Barnett, 45,721 (La. App. 2d Cir. 12/22/10), 56 So.3d 1044, 1051. See McClure v. A. Wilbert’s Sons Lumber & Shingle Co., 232 So.2d 879, 883 (La. App. 1st Cir. 1970) (finding no agent for service of process where there was no express designation).

Service on the corporation, Kee Food and the limited liability company (LLC), Southla is governed by specific provisions of the Code of Civil Procedure. Because the State’s motion for summary ■judgment set a hearing, service had to be accomplished in one of the following manners: by the sheriff by service on the adverse party in any manner permitted under Articles 1231 through 1266; by personal service on the counsel of record of the adverse party; or by delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is .not known. Louisiana Code of Civil Procedure articles 1261, 1262, and 1266 provide the process for service on a corporation or an LLC, Article. 1261 regarding corporations and article 1266 regarding LLCs, provide service of process should be made by personal service on one of its agents for service of process. Service of the citation or other process may be made by other methods if the corporation or LLC failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent. A plaintiff must first make a diligent effort to serve a corporation or LLC’s registered agent for service of process before using an alternative form of service on a corporation or LLC. See Brooks v. Terry, 608 So.2d 1047, 1050 (La. App. 1st Cir.), writ denied 609 So.2d 829 (La. 1992). The | ¿record reflects that the State never attempted service of the motion for summary judgment on Kee Food or Southla’s registered agent for service of process.

Louisiana Code of Civil Procedure article 2002 clearly states that a judgment may be annulled where service was not made as required by law. Service of process directed to a corporate defendant and made on one other than the person authorized to accept service is illegal and without effect. Such service is tantamount to no service. Conner v. Continental Southern Lines, Inc., 294 So.2d 485, 487 (La. 1974). - Accordingly, as the service of process on Mohamed, Kee Food, and Southla was not made as required by law, the portions of the judgment rendered in favor of the State against Mohamed, Kee Food and Southla are annulled.

II. Timeliness of Setting a Hearing

In their final assignment of error, defendants contend that the trial court erred in its previous ruling denying defendants’ motion to dismiss the petition for forfeiture since the State failed to bring the matter to hearing within sixty days after service of the petition as mandated by La. R.S. 40:2612(G). In a judicial in rem forfeiture proceeding, the district attorney is required to bring a verified petition for forfeiture to a hearing on the claim within sixty days after service of the petition, unless continued for good cause. Louisiana Revised Statute 40:2613(F) provides that an owner of or interest holder in property that has been ordered forfeited and whose claim is not precluded may file a claim within thirty days after initial Notice of Pending Forfeiture or after notice under Subsection E of this Section, whichever is earlier. If the State does not stipulate to the claim, the court shall hold the hearing and determine the claim without a jury and in the manner provided for in rem judicial forfeiture actions, as provided in Section 2612.

L sIn State v. Nourallah, 98-1651 (La. 7/2/98), 721 So.2d 900, after the trial court ordered that the claimants’ property be returned based on the State’s failure to request a hearing within the sixty day time limit set forth in La. R.S. 40:2612(G), the court of appeal denied the State’s application for supervisory writs. The supreme court granted the writ application and “remanded to the court of appeal for briefing, argument and an opinion in light of United States v. $8,850.00 [in U.S. Currency], 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983).” In $8,850 in U.S. Currency, supra, the Court held that the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), provides the relevant framework for determining the reasonableness of a delay in filing a forfeiture action. In Barker, the court developed the following four-pronged test to determine whether a government delay has abridged a defendant’s right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; ■ and (4) the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192.

It is undisputed that the present matter was not brought to hearing within sixty days after service of the petition. The petition for forfeiture was filed on September 20, 2013, and on January 22, 2015, the defendants filed a motion to dismiss the civil forfeiture proceedings. In the present case, the most important factor to consider is the reason for delay. There were multiple reasons for the delay, including defendants’ motion to re-transfer the forfeiture petition to the division in which it was originally allotted rather than to the same division in which the criminal case was pending, and the subsequent filing of the writ with this court, which was not ruled on until August 6, 2014. Additionally, the State filed a motion to compel discovery and in response, on October 31, 2014, defendants filed a motion to stay the proceedings until the criminal matter was resolved. The trial court judgment denying the motion to stay was signed on January 10, 2015. On January 22, 2015, just, twelve days after the judgment was signed regarding the motion to stay, the | ^defendants filed the motion to dismiss the civil forfeiture proceedings for failure to timely set the matter for hearing. Having considered the reasons for delay as well as the other factors laid out in Barker, we find no manifest error in the trial court’s denial of the defendants’ motion to dismiss.

CONCLUSION

For the foregoing reasons, the portions of the trial court judgment against Kassim Nagi are affirmed. Specifically, the portions of the judgment forfeiting to the State, $11,283.83 seized from Coastal Commerce Bank Account No. 1086107 in the name of Kassim Nagi, and $590,006.00 seized from a Coastal Commerce Bank safe deposit box in the name of Kassim Nagi are affirmed. ■ .

All portions of the judgment forfeiting money to the State that was in the name of or owned by Mohamed, Kee Food, Inc., or Southla, LLC are annulled. Specifically, the portions of the judgment in favor of the State forfeiting $1,021.42 seized from Coastal Commerce Bank Account No. 350538 in the names of Kassim Nagi and Mohamed Nagi, $29,580.54 seized from Coastal Commerce Bank Account No. 125641 in the name of Kee Food, Inc., $12,131.62 seized from Coastal Commerce Bank Account No. 179747 in the name of Kee Food, Inc., $95,890.92 cash seized from inside the Kee Food Store premises, $348,302.92 in cash seized from Coastal Commerce Bank Account No. 1078757 in the name of Southla, LLC, and the proper^ ty and improvements located at 6957 West Park Avenue in Houma, Louisiana owned by Southla, LLC are annulled. All costs of the proceedings are to be divided between the State of Louisiana and Kassim Nagi.

AFFIRMED IN PART, AND ANNULLED IN PART.

      . Tawfiq was not a party to the motion for' summary judgment that is the subject of this appeal.

      . Kee Food was incorporated by Tawfiq, and Tawfiq was the registered agent with the Louisiana Secretary of State, but Tawfiq and Kas-sim maintain that Tawfiq sold Kee Food to Kassim and Mohamed. There is no documentation in the record to formally recognize the change in ownership.

      . Initially, the defendants argued that there was no evidence in the record to demonstrate that service was made on Kassim; however, subsequent to the lodging of the appeal, the appellate record was supplemented with a service return showing personal service on Kassim.

      . The trial court's denial of defendants’ motion to dismiss the petition as untimely is interlocutory in nature and generally not ap-pealable. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings, in addition to review of the final judgment. Cajun Constructors, Inc. v. EcoProduct Solutions, LP, 2015-0049 (La. App. 1st Cir. 9/18/15), 182 So.3d 149, 155, writ denied, 2015-1908 (La. 11/20/15), 180 So.3d 1287.


author: HOLDRIDGE, J.,

text:
    STATE of Louisiana v. Donald Javon ROSS
    2017 KA 0141
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017

      Joseph L. Waitz, Jr., District Attorney, J. Christopher-Erny, Ellen Daigle Doskey, Assistant District Attorney, Houma, LA, Attorneys for Plaintiff/Appellee, State of Louisiana
    'John H. Thomas, New Orleans, LA, Attorney for Defendant/Appellant, Donald Ross
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.,

|2The defendant, Donald Javon Ross, was charged by bill of information with armed robbery with the use of a &earm, a violation of Louisiana Revised Statutes 14:64 and 14:64.3(A) (count one), and possession with intent to distribute a Schedule I controlled dangerous substance (marijuana), a violation of Louisiana Revised Statutes 40:966(A)(1). He pled not guilty to both counts and filed a motion to suppress his confession, which was denied. Following a jury.trial, the defendant was found guilty as charged on both counts. He filed a motion for postverdict judgment of acquittal, which was denied.

The defendant was then sentenced to a term of imprisonment of twenty years at hard labor without the benefit of probation, parole, or suspension of sentence with an additional penalty of five years at hard labor without the benefit of probation, parole, or suspension of sentence pursuant to Section 14:64.3(A) on count one. On count two, the defendant was sentenced to five years at hard labor. The court ordered the sentences on counts one and two to run concurrently. The defendant filed a motion to reconsider sentence. The district court then amended the defendant’s sentence as to count one, ordering that the defendant serve fifteen years at hard labor with an additional penalty of. five years pursuant-to Section 14:64.3(A), for a total of twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The district court ordered the amended sentence on count one to run concurrently with the previously imposed sentence on count two. The State orally objected to the amended sentence and made an oral motion to reconsider sentence, which was subsequently dismissed by the State’s motion. The defendant now appeals, challenging the denial of his motion to suppress. For the following reasons, we affirm the defendant’s convictions and sentences.

JflPACTg

On February 19, 2015, shortly after 10:00 a.m., Deputy .Carter Fontenot with the Terrebonne Parish Sheriffs Office responded to an armed robbery call at a Chevron gas station located at 5912 West Main Street in Houma, Louisiana. Upon arrival, Deputy Fontenot made contact with Abdulla Hussein, the -victim, who provided a description of the offender as well as a license plate number of the vehicle that he observed leaving the gas station. The victim indicated that he believed, but was not positive, that the offender was the same person who had come into the store approximately thirty minutes prior to the robbery to purchase a cigar. At that time, the victim was removing money from his safe and thought that the person purchasing the cigar saw him counting the money. According to the victim, approximately thirty minutes, later, the offender walked into the store holding a gun and said, “I want the .money ... All the money you take [sic] from the safe.” The offender then took the money., from the victim’s pockets, pointed a gun to his leg, and demanded that he let him enter the gas station’s office. After approximately fifteen minutes, another customer drove up to the gas station, and the offender ran. The victim described the offender as a black male who was approximately five feet, eleven inches tall,, and weighed approximately. one hundred fifty or one hundred seventy pounds. The victim stated that the person who robbed him was wearing a makeshift mask that covered his face during the robbery. The deputy immediately ran the license plate number given to him by the victim through dispatch and learned that the defendant was listed as its registered owner.

Deputy Fontenot proceeded to the address listed for the defendant where he met Detective Malcolm Wolfe and Captain Dawn Foret. Detective Cody Voison was also at the residence and briefly spoke with subjects Amos Washington, Kerry Lyons, Richard Shelby, -and Alexander Barrow. Neither the defendant nor thej 4 vehicle registered to him were at the residence, but Deputy Fontenot noticed that Lyons matched the description of the offender given by the victim. Once Detective Voison arrived at the residence, Lyons was placed in handcuffs and advised of his Miranda rights. Lyons was transported to the Chevron gas station, where the victim identified him as the individual who purchased a cigar prior to the armed robbery. The victim. believed the individual who purchased the cigar was the same individual who robbed him. Lyons was then transported to the sheriffs office.

Shortly thereafter, Deputy Fontenot was ordefed to return to the defendant’s residence to transport the defendant to the sheriffs office. When Deputy Fontenot returned to the residence, the defendant and the vehicle matching the description and license' plate number given by the victim were present. The deputy transported the defendant to the sheriffs office - and brought him into the interview room. Under the supervision of Detective Wolfe, Lyons was permitted-to speak to the defendant. The defendant subsequently confessed to committing the robbery. ■

A search of the defendant’s residence was conducted and a handgun magazine as well as approximately sixty-seven grams of marijuana were located. The defendant testified that he threw the money out of his window while driving because he “got scared[.]”

MOTION TO SUPPRESS

In his sole assignment of error, the defendant argues that the district court erred in denying the motion to suppress his confession. 'Specifically, the defendant contends that his confession was not free and voluntary because it was “made under duress of fear for his family’s safety[.]” According to the defendant, the deputies conducting• his interview -used’Lyons to intimidate him to confess.

|bA hearing was held on ‘the defendant’s motion to suppress. At the conclusion of the hearing, the district court denied the motion and stated that based on the testimony it heard and documents admitted into evidence, the defendant’s statement was given freely and voluntarily.

. It is well settled that for a confession or inculpatory statement to be admissible, the State must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menaces, threats, .inducements, or promises. La. R.S. 15:451; La. Code Grim. P. art. 703D. Further, if the statement was elicited during custodial interrogation, the State must show that the defendant was advised of his Miranda rights. Whether a showing of voluntariness has been made is analyzed on a'case-by-case basis with regard to the facts and circumstances of each case. The district court must consider the totality of the circumstances in deciding whether a confession is admissible. Moreover, where conflicting testimony is offered, credibility determinations lie within the sound discretion of the district court judge, and his ruling will not be disturbed unless clearly contrary to the evidence. Unless the evidence does not support its findings, an' appellate court will defer to the district -court’s determination as to whether a confession was made knowingly, intelligently, and voluntarily. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 944, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. The direct testimony of the interviewing police officer can be sufficient to prove a defendant’s statement was freely and voluntarily given. See State v. Sims, 310 So.2d 587, 589-90 (La. 1975); State v. Washington, 540 So.2d 502, 507-08 (La. App. 1st Cir. 1989).

When a district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court’s discretion, ie., unless such ruling is not supported by reliable evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-281. However, a [^district court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. In determining whether the ruling on the defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).

At the hearing, the State presented the testimony of Detective Voison and introduced a transcript and audio recording of the defendant’s interview as well as a copy of the Miranda rights form signed by the defendant. The detective testified that two hours and eight minutes elapsed from the time the defendant signed the Miranda form until the recording of his statement began, and the defendant did not ask for an attorney during that time nor did he state that he did not want to answer questions. According to Detective Voison’s testimony, at no time did he threaten, coerce, or subject the defendant to any sort of duress.

Detective Voison also testified at trial and explained that he sat in the detective bureau and watched the defendant’s interaction with Lyons on a television. He testified that the conversation only lasted a few minutes and did not appear to be confrontational. The detective explained that Lyons asked for permission to speak with the defendant because he did not want to be imprisoned for a crime he did not commit.

Detective Wolfe also testified at trial. According to his testimony, Lyons denied involvement and asked to speak with the defendant to “clear his name.” Detective Wolfe stood in the doorway of the interview room during the entire conversation and heard “every word” of what he described as a very “passive conversation” between the defendant and Lyons. According to Detective Wolfe, Lyons was “very scared” and “just wanted his name to be cleared.” He stated that Lyons pled with the defendant, who began to cry before stating that he would tell |7the detectives the truth. Detective Wolfe denied hearing any threats of violence towards the defendant’s family.

The defendant testified that he confessed to committing the robbery after talking to Lyons out of fear for the safety of his family. The defendant claimed that Lyons told him that if he did not “take the charges,” he would have to “fear for [his] family.”

Based on the foregoing, we find that the defendant was not intimidated, threatened, or induced to confess based on his conversation with Lyons. The State rebutted the defendant’s allegation with the testimony of Detective Voison and Detective Wolfe. The district court, in denying the motion to suppress the statement, impliedly found that the testimony of Officer Voison was more credible than the testimony of the defendant and that no threat's were made, which was further supported by the testimony of Officer Wolfe at trial. See State v. Batiste, 2006-824 (La. App. 5th Cir. 3/13/07), 956 So.2d 626, 634, writ denied, 2007-0892 (La. 1/25/08), 973 So.2d 751. The record before us clearly establishes that the defendant was advised of his Miranda rights prior to making a confession; that at no time while in police custody did the defendant ask for an attorney or invoke his right to remain silent; and that the defendant’s confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Accordingly, the district court did not err or abuse its discretion in dénying the defendant’s motion to suppress.

CONVICTIONS AND SENTENCES AFFIRMED.

      . See La. R.S. 15:301.1,

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    STATE of Louisiana v. Glenn THOMPKINS
    NO. 2017 KA 0210
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, Lieu T. Vo Clark, Louisiana Appellate Project, Mandeville, LA, Attorneys for Defendant-Appellant, Glenn Thompkins
    Camille A. Morvant, District Attorney, Joseph S. Soignet, Assistant District Attorney, Thibodaux, LA, II Attorneys for Appellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO,,JJ.
   HIGGINBOTHAM, J.

| ?.The defendant, Glenn Thompkins, was charged by bill of information with obscenity, a violation of La. R.S. 14:106, and pled not guilty. After a trial by jury, the defendant was found guilty as charged. The. trial court denied the defendant’s motion for new trial and motion for postverdict judgment of acquittal. The defendant was sentenced to three years imprisonment at hard labor. He now appeals, assigning error to the constitutionality of the sentence.

STATEMENT OF FACTS

On December 19, 2014, Officer Sheena Hill, a corrections officer at the Lafourche Parish Detention Center, was conducting her nightly security check when she came in contact with the defendant, an inmate at the facility. Officer Hill, -as- required of female officers, announced her presence by saying “female” or “female on the block,” as she entered Block F where the defendant was housed. The announcement was made approximately thirty feet from the third cell on the catwalk, where the defendant was located at the time (one cell over from the fourth cell where he was assigned). As she proceeded down the catwalk performing the security check, Officer Hill used a device called a guardian to scan inmate identification tags and report inmate activities. When Officer Hill approached cell three, the defendant was lying in bed two, masturbating with his penis exposed and a towel over his eyes. After Officer Hill addressed the defendant, he removed the towel from over his eyes, slightly held his head up to make eye contact with the officer, then put his head back down and continued masturbating. Officer Hill immediately used the guardian to Isdocument the defendant’s activity as “Masturbating,” and reported the incident to her lieutenant after completing her rounds.

ASSIGNMENT OF ERROR

In the sole assignment of 'error, the defendant challenges the constitutionality of the sentence imposed. The defendant notes that he received the maximum sentence for the offense and further notes that he made an attempt to block his actions from the view of others. The defendant argues that he is not the most egregious of defendants and that this is not the worst type of offense.

The record before this court does not contain a copy of a motion to reconsider sentence or evidence that the defendant objected to or moved for reconsideration of the sentence, Louisiana Code of Criminal Procedure article 881.1(A)(1) requires a defendant or the State to make or file a motion to reconsider sentence within thirty days of sentencing unless the trial court sets a longer period of time at the time of sentencing. Failure to make or file a motion to reconsider sentence or to include a specific ground, upon, which a motion to reconsider sentence may be based, including a claim of excessiveness,, shall preclude the State or the. defendant from raising an objection to the sentence or from urging any ground not raised in the motion, on appeal or review. La. Code Crim. P. art. 881.1(E). Ás stated, the record before us does not include a motion to reconsider sentence, nor did the defendant enter an objection after the sentence was imposed. As the defendant failed to comply with La. Code Crim. P. art/ 881.1, he is barred prticedurálly from having the assignment of error-reviewed. See La. Code Crim. P. art. 881.1(E). See also State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).

CONVICTION AND SENTENCE AFFIRMED.

      . Officer Hill testified that the purpose of the announcement is to alert an inmate that a female officer is approaching in order to allow them to get dressed or cover themselves to avoid exposure to the officer.

      . The defendant had a sheet hanging from the bunkbed, blocking the view of the other inmate in the cell, but allowing full view from the catwalk.