author: McDonald, j.

text:
    Dan S. COLLINS and Dan S. Collins, CPL and Associates, Inc. v. STATE of Louisiana, THROUGH DEPARTMENT OF NATURAL RESOURCES, Robert Benoit, Individually and in His Official Capacity as Assistant Director Atchafalaya Basin Program, Louisiana Department of Natural Resources
    2016 CA 1195
    Court of Appeal of Louisiana, First Circuit.
    APRIL 28, 2017
    Jill L. Craft, Crystal G. Bounds, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee, Dan S. Collins and Dan S. Collins, CPL and Associates, Inc.
    Jeff Landry, Attorney General, Stephen J. Oats, Robin J. Magee, Patrick B. Mcln-tire, Special Assistant Attorneys General, Lafayette, Louisiana, Attorneys for Defendant/Appellant, State of Louisiana, through the Department of Natural Resources
    BEFORE: PETTIGREW, McDonald, and calloway,jj.

       Judge Curtis A. Calloway, retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   McDonald, j.

| gThis is an appeal from a jury verdict and a district court judgment finding that plaintiffs were employees of the State engaged in an activity protected by La. R.S. 30:2027 (the Louisiana Environmental Whistleblower Statute), that plaintiffs suffered an adverse action that occurred as a result of complaints by the plaintiffs of environmental violations, that a defendant, the Louisiana Department of Natural Resources (DNR) was liable to the plaintiffs for violating La. R.S. 30:2027, and awarding plaintiffs damages. After review, finding that the plaintiffs were not employees pursuant to La. R.S. 30:2027, we reverse the jury, verdict and the district court judgment and render judgment in favor of DNR, dismissing plaintiffs’ claims against it under La. R.S. 30:2027.

FACTS AND PROCEDURAL HISTORY

From 1997 to 2010, Dan S. Collins (a certified professional landman) and Dan S. Collins, CPL and Associates, Inc. (collectively plaintiffs or Collins) provided consulting services for land, title, and environmental research for DNR, particularly the Atchafalaya Basin Program and the Coastal Protection and Restoration Program. Robert Benoit served as Assistant Director of the Atchafalaya Basin Program.

Starting in 2007, Mr. Collins discovered what he believed were violations of environmental laws, rules, and regulations pertaining to the dredged water quality project known as the Bayou Postillion Water Quality Project and the Big Bayou Pigeon Water Quality Project. Mr. Collins reported his findings to DNR, Mr. Benoitf and Scott Angelle, Secretary of DNR. Both projects were conducted by the Atchafala-ya Basin Program within the basin to improve water quality for | .¿fishermen and crawfishermen. Mr. Collins believed that he discovered the real purpose of the projects was oil and gas exploration for the use and benefit of adjacent landowners.

Collins’ contract with DNR for 2009 ended, and it was not renewed for 2010. Collins filed suit on June 29, 2010, naming as defendants the State of Louisiana, through DNR, and Mr. Benoit, individually and in his capacity as Assistant Director of the Atchafalaya Basin Program at DNR, asserting that “defendants have refused to employ Petitioners and denied Petitioners the ability to continue employment with defendant DNR on account of their whistle-blowing activities regarding the violations of Federal and State laws, rules, and regulations.” Collins asserted that DNR violated La. R.S. 30:2027 and La. R.S. 23:967 (the Louisiana Whistleblower Statute) and that DNR and Mr. Benoit violated La. R.S. 42:1169 (the Louisiana Code of Governmental Ethics Whistleblower Statute). Collins prayed for judgment in their favor including punitive damages, triple damages as allowed by law, and attorney fees, as well as all other relief to which they were entitled, including declaratory and injunctive relief.

Defendants filed peremptory exceptions raising the objections of no cause of action as to the claims raised pursuant to La. R.S. 23:967, La. R.S. 30:2027, and La. R.S. 42:1169, which were sustained by the district court, and the plaintiffs’ claims pursuant to those statutes were dismissed. Collins v. State ex rel. Dep’t of Nat. Res., 2012-1031 (La.App. 1 Cir. 5/30/13), 118 So.3d 43, 45. On appeal, this court affirmed the district court ruling that plaintiffs had failed to state a cause of action pursuant to La. R.S. 42:1169 and La. R.S. 23:967. Collins, 118 So.3d at 52. This court reversed the district court ruling that the plaintiffs had failed to state a cause of action pursuant to La. R.S. 30:2027, noting that plaintiffs alleged employee status, that the allegations had to be taken in the light most favorable to |4the plaintiffs, and that non-renewal of an alleged employment agreement could state a cause of action for retaliation, assuming the plaintiffs met the rest of the statutory requirements. Collins, 118 So.3d at 48-51. The La. R.S. 30:2027 claims were remanded to the district court. Collins, 118 So.3d at 52.

Thereafter, DNR filed a motion for summary judgment on February 3,2014, based upon plaintiffs' lack of employee status, failure to pursue administrative remedies, prescription, and lack of evidence of retaliation. The district court denied the motion for summary judgment in open court on May 5, 2014, and signed a judgment in conformity therewith on- June 10, 2014.

DNR filed an application for supervisory writs with this court, which was denied. Dan Collins v. State through Dep’t of Nat. Res., 2014-0819 (La. App. 1 Cir. 8/11/14) (unpublished writ action)'. DNR thereafter filed an application for supervisory ^nd/or remedial writs with the Louisiana Supreme Court, which was also denied. Dan Collins v. State through Dep’t of Nat. Res., 2014-1898 (La. 12/8/14), 153 So.3d 442.

The case proceeded to trial on the La. R.S. 30:2027 environmental whistleblower claims. A jury trial was held from December 8 to 11, 2015. The jury returned a verdict in favor of the plaintiffs and against DNR, finding that plaintiffs were employees of DNR who reported what they believed to be environmental violations, and as a result of their reports, they suffered retaliation from DNR. The jury awarded plaintiffs $250,000.00 in lost wages by verdict form dated December 11, 2015.

The district court thereafter signed a judgment on January 26, 2016, in favor of plaintiffs and against DNR, awarding plaintiffs $750,000.00 in damages,- which included $250,000.00 for loss of earnings and/or loss of anticipated wages, plus Illegal interest on that amount from date of judicial demand until paid, and $500,000.00 (to provide triple damages as provided for in La. R.S. 30:2027(B)(1)); plus legal interest on that amount from date of judgment until paid. DNR filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for new trial, which were denied in open court on April 18, 2016. A judgment to that effect was signed on May 26, 2016. DNR appealed the jury verdict form and the January 26', 2016 judgment.

PENDING MOTION

DNR filed a motion to strike statements made on page 25 and pages 29 through 30 of plaintiffs’ appellee brief, asserting that these statements are contrary to the requirements of Rule 3.3(a)(1) of the Rules of Professional Conduct, which states that lawyers shall not “knowingly make a false statement of fact ... to a tribunal.” DNR asserts that these portions of plaintiffs’ brief contain testimony which plaintiffs attributed to Toni Debossier (a former employee of DNR), which serves to give the false impression that Ms. Debossier was relieved of her position or transferred due to complaints about Bayou Postillion. DNR asserts that the statements attributed to Ms. Debossier by plaintiffs were, in fact, made by Mr. Collins and that in her deposition Ms. Debossier explained that Secretary Angelle hired her to work for DNR after she left the Department of Agriculture and Forestry, that Secretary Angelle asked her to look into the project to see if any laws had been broken, and that she found no violations of law.

In opposition to the motion to strike, plaintiffs assert that DNR’s accusations are false and that the jury did, in fact, hear testimony that Ms. Debossier was a DNR employee, that she informed Mr. Collins that she had been terminated because of information that she brought forward, and that she was told she would be transferred. Plaintiffs maintain that DNR failed to take advantage of its full and |flfair opportunity to cross-examine Mr. Collins’ cited testimony during trial.- Plaintiffs ask that DNR’s motion be denied and that they be awarded the costs of opposing the motion to strike.

An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. We cannot review evidence that is not in the record, nor can we receive new evidence. This court has no authority to consider on appeal facts referred to in appellate briefs if those facts are not in the record on appeal. In re Succession of Badeaux, 2008-1085 (La. App. 1 Cir. 3/27/09), 12 So.3d 348, 352, writ denied, 2009-0822 (La. 5/29/09), 9 So.3d 166. This court can read the briefs and can determine for itself what facts are in the record. DNR’s motion to strike is denied. The plaintiffs’ request for an award of the costs of opposing the motion to strike is also denied.

THE APPEAL

In its appeal, DNR makes the following assignments of error.

1. It was error for the Trial court to deny DNR’s Motion for Summary Judgment on Prescription, and the evidence at trial shows the claims to be prescribed.
2. It was "error for the Trial Court to deny DNR’s Motion for Summary Judgment on Plaintiffs’ failure to pursue administrative remedies, and the evidence at Trial showed that all claims arising from the rejection of Plaintiffs’ 2008 and 2010 bids were waived.
3. The Trial Court committed consequential error by admitting evidence over objection and overruling pretrial Motions in Limine to exclude:
— Evidence containing summaries of Louisiana whistleblower law obtained by Plaintiffs from the internet;
— Evidence of contracts denied more than one year prior to suit; and
— Evidence of contracts denied where no administrative appeal was taken.
4. The jury erred in finding that . Plaintiffs were employees of DNR.
5. The Trial Court erred in denying DNR’s Motion for Summary Judgment on lack of retaliation, and the jury erred in finding that Plaintiffs had suffered adverse job action because of complaints about pBayou Postillion.

Louisiana Revised Statutes 30:2027 provide:

A. No firm, business, private or public corporation, partnership, individual employer, or federal, state, or local governmental agency shall act in a retaliatory manner against an employee, acting in good faith, who does any of the following:
(1) Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, practice of the employer, or another employer with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation.
(2) Provides information to, or testifies before any public body conducting an investigation, hearing, or inquiry into any environmental violation by the employer, or another employer with whom there is a business relationship, of an environmental law, rule, or regulation. B. (1) Any employee against whom any action is taken as a result of acting under Subsection A of this Section may commence a civil action in a district court of the employee’s parish of domicile, and shall recover from his employer triple damages resulting from the action taken against him and all costs of preparing, filing, prosecuting, appealing, or otherwise conducting a law suit, including attorney’s fees, if the court finds that Subsection A of this Section has been violated. In addition, the employee shall be entitled to all other civil and criminal remedies available under any other state, federal, or local law.
(2)(a) The term “action is taken” shall include firing, layoff, lockout, loss of promotion, loss of raise, loss of present position, loss of job duties or responsibilities, imposition of onerous duties or responsibilities, or any other action or inaction the court finds was taken as a result of a report of an environmental violation.
(b) “Damages” to be tripled pursuant to Paragraph B(l) of this Section shall be for the period of the damage, but not to exceed three years, and shall include but not be limited to lost wages, lost anticipated wages due to a wage increase, or loss of anticipated wages which would have resulted from a lost promotion, and if the period of the damage exceeds three years, the employee shall thereafter be entitled to actual damages. In addition to the above, “damages” shall also include any property lost as a result of lost wages, lost benefits, and any physical or emotional damages resulting therefrom.
C. This Section shall have no application to any employee who, acting without direction from his employer or his agent, deliberately violates any provision of this Subtitle or of the regulations, or permit or license terms and conditions in pursuance thereof.

I «ASSIGNMENT OF ERROR NO. 4

In this assignment of error, DNR asserts that the jury erred in finding that plaintiffs were employees of DNR. In their memorandum in opposition to DNR’s exceptions of no cause of action and prematurity, and in their memorandum in opposition to DNR’s exceptions to their supplemental and amending petition, as well as in their brief to this court in a prior appeal in this case, Collins, 118 So.3d 43, plaintiffs stated that they were “employed as the consulting landman contractor” for DNR and that they “provided consulting services for land related research.” Thus, plaintiffs have conceded that their claims arise out of a contractual relationship, rather than an employer-employee relationship. Thus, they cannot pursue an action under La. R.S. 30:2027, as it is a statute that is intended to protect employees from adversary action or other adverse action by employers for reporting possible environmental violations. See Chiro v. Harmony Corp., 99-0453 (La.App. 1 Cir. 11/5/99), 745 So.2d 1198, 1200, writ denied, 99-8346 (La. 1/28/00), 758 So.2d 840.

In that prior appeal, this court found that “employee” is not defined in La. R.S. 30:2027, and taking the plaintiffs’ statement in their petition that “from 1997 through the present, Petitioners acted in the capacities as public employees ■ (contracting parties) of defendant DNR providing consulting land related research and duties” in the light most favorable to plaintiffs and with every doubt resolved on their behalf, we could not say that plaintiffs did not state a cause of action under the purview of La. R.S. 30:2027. Collins, 118 So.3d at 51. However, in his concurrence, Judge Kuhn noted that “in their appellate brief, plaintiffs have conceded that their claims arise out of a contractual relationship rather than that of employer-employee. Thus, I believe that plaintiffs will be unable to recover any relief against defendants.” Collins, 118 So.3d at 53.

Un the present appeal, the plaintiffs state in their brief that Mr. Collins and his firm were “treated as public employees who performed contract work.” Notwithstanding our determination that plaintiffs have already conceded to this court in the record in this appeal and in a prior appeal of this case that they were independent contractors rather than employees, a review of the record also shows that plaintiffs were independent contractors.

In O’Bannon v. Moriah Technologies, Inc., 2015-1460 (La.App. 1 Cir. 6/3/16), 196 So.3d 127, this court discussed the distinction between an employee and an independent contractor:

The distinction between an employee and an independent contractor is a factual determination that must be decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 2001-2875, (La.9/4/02), 825 So.2d 1125, 1129. In determining whether the relationship is one of principal and independent contractor, the courts consider whether the following factors are present: (1) a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ nonexclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) the existence of a specific price for the overall undertaking; and (5) the specific time or duration is agreed upon and not subject to termination at the will of either side without liability for its breach. See Tower Credit, Inc., 825 So.2d at 1129, citing Hickman v. Southern Pacific Transport Company, 262 La. 102, 117, 262 So.2d 385, 390-391 (1972).
The principal test in determining whether someone is an independent contractor is the degree of control over the work reserved by the employer. Hickman, 262 La. at 117, 262 So.2d at 391. This court has stated that “it is not the supervision and control actually exercised which is significant, but whether, from the nature of the relationship, the right to exercise such control exists.” Hulbert v. Democratic State Central Committee of Louisiana, 2010-1910 (La. App. 1 Cir. 6/10/11), 68 So.3d 667, 670, writ denied, 2011-1520 (La. 10/7/11), 71 So.3d 316. Yet, while the essence of the employer-employee relationship is the right to control; no one factor listed above is controlling, and the court should consider the totality of the circumstances in determining whether an employer-employee relationship exists. Hulbert, 68 So.3d at 671. The burden of proof is on the party seeking to establish an employer-employee relationship. Hulbert, 68 So.3d at 670.

O’Bannon, 2016-1460, 196 So.3d at 134-135.

|1nThus, we look at the totality of the circumstances in this case. The facts of this case show that Mr. Collins testified that work for DNR was performed by himself and his corporation. Mr. Collins testified that he considered himself to be a contractor. Between 1997 arid 2009, the corporation did work for other clients besides DNR. After 2002, all of the DNR contracts at issue were with the corporation. The corporation itself was acknowledged to be an employer in the contracts, agreeing that it would not discriminate in its employment practices. All of the contracts were for specific time periods, with start and cessation dates. The plaintiffs were responsible for all taxes on payments received from DNR. The corporation was issued 1099 tax forms rather than W-2 tax forms. The contracts required the corporation to carry liability and workers’ compensation insurance. Pursuant to the contracts, the corporation submitted monthly invoices, accompanied by progress reports, to DNR in order to receive payment. No vacation, sick leave, or retirement benefits accrued. The contracts required the corporation to provide the necessary personnel, materials, services, and facilities to perform the work. None of the contracts were terminated early, all expired of their own accord.

Furthermore, former La. R.S. 39:1498A(3) (now La. R.S. 39:1624(A)(3)) required the Office on Contractual Review (now the state chief procurement officer or an^ assistant) to reject any contract unless it determined that “the contract will not establish an employer/employee .relationship between the state or the using agency and any prospective contractor”, and the corporation acknowledged in the contracts that it had not and would not employ any state employee in the performance of the contracts. .

Our review of the record and application of the law reveals that the plaintiffs were clearly independent contractors and not DNR employees.

InWhile plaintiffs assert that they should be considered DNR employees because they were subject to the Louisiana Code of Governmental Ethics, La. R.S.‘ 42:1102(18), the scope of the Louisiana Code of Governmental Ethics Code differs from' that of La. R.S. 30:2027; thus, we do not find this argument persuasive.

After a thorough review of the record, we find that the jury committed manifest error in finding that plaintiffs were employees of the DNR, rather than independent contractors. Thus, after finding that the plaintiffs were not employees of DNR, we reverse the jury verdict and the district court judgment rendered against DNR and in favor of plaintiffs, and we render judgment in favor of DNR and against plaintiffs, dismissing the case. The exception raising the objection of prescription filed by DNR with this court is rendered moot.

CONCLUSION

For the foregoing reasons, the motion to strike is denied. The jury verdict and the district court judgment rendered against the State of Louisiana, through the Department of Natural Resources, and in favor of Dan S. Collins and Dan S. Collins, CPL and Associates, Inc., is reversed, and judgment is granted in favor of DNR and against Dan S. Collins and Dan S. Collins, CPL and Associates, Inc,, dismissing the case. The exception raising the objection of prescription filed with this court is rendered moot. Costs of this appeal are assessed against Dan S. Collins and Dan S. Collins, CPL and Associates, Inc.

MOTION DENIED; JUDGMENT REVERSED; EXCEPTION RENDERED MOOT.

      . In a companion case, Dan S. Collins v. State of Louisiana, through Department of Natural Resources, 2016-1196 (La.App. 1 Cir. 4/28/17), 2017 WL 1591634 (unpublished), handed down this same day, we reverse a • district court judgment rendered in favor of plaintiffs and against DNR, awarding costs and attorney fees associated with this case.

      , In a related case, this court affirmed the district court's dismissal of. plaintiffs’ ■ 42 U.S.C. § 1983 claims on summary judgment. Collins v. State ex rel Dep’t of Nat. Res., 2013-0284 (La.App. 1 Cir. 12/20/13), 2013 WL 6795633,

      . While DNR asserts that the district court erred in not granting its motion for summary judgment (which motion was based in part on the assertion that plaintiffs were not DNR employees), assignment of error number four specifically states that the jury manifestly erred in finding that the plaintiffs were DNR employees. Thus, we have chosen to use the manifest error standard of review on the issue of whether plaintiffs were employees, rather than the de novo standard of review used in a summary judgment. Under either standard of review, we reach the same result.

      . In light of this finding, we pretermit discussion of DNR’s other assignments of error.


source: Caselaw Access Project

author: Judge Terri F. Love BELSOME, J., LANDRIEU, J.,

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF M.J.
    NO. 2017-C-0302
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 2, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR RESPONDENT/STATE OF LOUISIANA
    Mary Murphy, Louisiana Center for Children’s Rights, 1100-B Milton Street, New Orleans, LA 70122, COUNSEL FOR RELATOR/JUVENILE
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Terri F. Love

11 Relator M.J. seeks review of the juvenile court’s March 17, 2017 judgment which granted the State’s motion to subpoena Ms. Mary Murphy, defense counsel for relator as well as its motion to recuse Ms. Murphy from representing relator in this matter. We find the State has failed to meet the requirements of La. C.E. art. 507(A), and therefore, we grant the writ, reverse the juvenile court’s March 17, 2017 judgment, and lift the stay.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The State charges M.J. with two counts of battery of a police officer and one count of resisting a police officer. The events leading to the charges in this case allegedly occurred while M.J. appeared in juvenile court for a hearing with his attorney Ms. Murphy. The State initially filed a motion to disqualify and recuse Ms. Murphy, which was granted in December 2016. Defense counsel filed a supervisory writ with this Court, claiming Ms. Murphy was not properly subpoenaed pursuant to La. C.E. art. 507. We granted the writ and remanded for an evidentiary hearing to determine: (1) whether the information sought was not privileged; and (2) whether the information meets all the requirements of La. C.E. art. 507(A)(l)-(4). See Writ No. 2017-C-0053. Following the hearing the juvenile lacourt ordered Ms. Murphy to testify as a witness and ordered her recused from representing M. J. in this case. M. J. seeks this Court’s supervisory review of the juvenile court’s March 17, 2017 judgment.

DISCUSSION

A subpoena may not be issued unless after a contradictory hearing it is determined that the information sought is not protected from disclosure and all the requirements of La. C.E. art. 507(A)(l)-(4) are met.

The events in this case are alleged to have taken place in the courtroom, and the State’s witness list includes eight witnesses, six of whom were present in the courtroom when the alleged incident occurred. As noted in our previous writ disposition, among the witnesses is “the victim who will presumably provide direct evidence of the essential elements of the charged offenses.” See Writ No. 2017-C-0053. Further, all juvenile court proceedings are recorded, and the State notes in its discovery that the alleged incident in this case was audio and video recorded. The State claims that due to Ms. Murphy's proximity to the incident her testimony is essential to the State’s successful prosecution. See La. C.E. art. 507(A)(1). However, the State fails to show that the information it seeks from Ms. Murphy cannot be obtained from the other "witnesses or the recordings.

Additionally, a subpoena of Ms. Murphy is only permissible if there is no practicable alternative means of obtaining the information to which she would testify. La. C.E. art. 507(A)(4); State v. Gates, 08-0006, p. 10 (La.App. 1 Cir. 5/15/09), 17 So.3d 41, 48. The State argues that only Ms. Murphy can testify as to what she observed. Nevertheless, the State’s burden is not to show that no other witness can testify as to what Ms. Murphy observed, but instead to show that what she witnessed is necessary to prove the State’s case. Given the number of | (¡witnesses and the audio and video recordings of the alleged incident, Ms. Murphy’s testimony is not essential to the State’s prosecution. For the same reason, there are practicable alternative means of obtaining the information to which she would testify. Therefore, the State has not met the requirements of subsections (A)(1) and (A)(4).

As for the subpoena, its states that Ms. Murphy is called to testify “as to her observations of the incident” and is “not being called to disclose privileged communications.” A request simply for “observations” and nothing more is insufficient to meet the requirements of La. C.E. art. 507(A)(3). Cf. State v. Gates, 08-0006, p. 10 (La.App. 1 Cir. 5/15/09), 17 So.3d 41, 48 (finding a subpoena, which sought testimony regarding what prosecutors did and said during specific conversations with the sheriffs attorney and defense counsel, met requirements of subsection (A)(3)); See also State v. Bright, 96-0280 (La.App. 4 Cir. 6/12/96), 676 So.2d 189 (holding a subpoena for defendant’s diary, portions of which were previously published in the newspaper, satisfied subsection (A)(3)). In contrast to the cited cases, the State does not explain with any particularity what Ms. Murphy may testify to that would not be privileged information and/or obtained through other witnesses and recordings. La. C.E. art. 507(A)(3).

Finally, counsel for M.J. avers that “the State’s actions indicate that it does not need Ms. Murphy’s testimony so much as it seeks to terminate her representation of her client.” For this reason, counsel for M.J. suggests that the State’s actions, including its efforts to have Ms. Murphy recused from representing M.J. in an entirely separate and unrelated matter, proves that the purpose of the subpoena is to harass Ms. Murphy and her client. La. C.E. art. 507(A)(2). ^Nevertheless, a finding on this issue is unnecessary given the State’s failure to meet the remaining requirements of La. C.E. art, 507(A).

CONCLUSION

In that the State has failed to meet all the requirements of La. C.E. art. 507(A)(1) — (4), we find the trial court abused its discretion by granting the State’s motion to subpoena Ms. Murphy as a witness and recuse her from representing the relator in this matter. Therefore, we grant the writ and reverse the trial court’s order recusing Ms. Murphy from representing the relator and ordering her to testify in this case, and lift the stay.

WRIT GRANTED; STAY LIFTED

BELSOME, J., DISSENTS WITH REASONS LANDRIEU, j., CONCURS WITH REASONS LOBRANO, J., DISSENTS FOR THE REASONS ASSIGNED BY BELSOME, J.

BELSOME, J.,

DISSENTS WITH REASONS

|J concur in lifting the stay, but dissent in all other respects. Ordering an attorney to testify as to an incident involving her client and recusing the attorney as his acting counsel does appear to be an extreme remedy. However,-a trial judge has vast discretion in making such pretrial determinations. As recognized by the majority, the State’s burden is not to show that no other witness could testify as to what Ms. Murphy observed, but rather to .show that what she witnessed is necessary to prove the State’s case.'Although there may be a number of witnesses to the incident as well as audio and video recordings of the events giving rise to the State’s subpoena request, the trial judge is in the best position to determine the necessity of Ms. Murphy’s testimony in the matter. The hearing transcript indicates that the State informed the court that Ms. Murphy is a necessary witness because she “was in a unique position as she was standing next to the defendant a the incident evolved” and “there is no one else who was present in court on that day who could give the State’s perspective as to how things unfolded, why things unfolded and what actually occurred in the courtroom on that day.” Therefore, I cannot say that the trial court abused its discretion in finding that Ms. Murphy’s testimony is necessary to the State’s case and thus granting the State’s subpoena as'well as recusing Ms. Murphy as M.J,’s counsel. I would deny the writ.

LANDRIEU, J.,

CONCURS WITH REASONS

It This case presents a-conflict between the right of the State to present all relevant evidence necessary to prove its case and the right of the defendant (in this instance, a juvenile) to counsel of his choice. As the Louisiana Supreme Court has held:

“... [Depriving a party of his choice of counsel is a penalty that must not be imposed without careful consideration. In civil matters as well as criminal matters, the right to counsel includes the right to legal representation of one’s choice. This right is “one of constitutional dimensions and should be freely exercised without impingement.” .... This right can be overridden only if it can be proven that there is a compelling reason to do so.

Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Mach. Sales Co., Inc., 2005-0715, pp. 12-13 (La. 4/17/06), 927 So.2d 1094, 1101 (Citations omitted).

Under the circumstances presented here, the State failed to show that it coüld not obtain the evidence necessary to prove its case without the testimony of the defendant’s counsel, which'might have presented a compelling reason sufficient to override the juvenile’s right to -continue with the counsel of his choice. On this basis, I concur in the granting of the writ application and the reversal of the trial court’s ruling disqualifying the defendant’s counsel.

LOBRANO, J., DISSENTS FOR THE REASONS ASSIGNED BY BELSOME, J.

      . The State’s witness list includes: Ms. Murphy, the complaining witness, Judge Cook-Calvin, three members of the juvenile court staff, and two investigating officers.

      . Our finding in this case is further supported by La. C.E. art, 403, which states that "[a]l-though relevant, evidence may be excluded.. .by considerations of undue delay, or waste of time.”

      ."As Ms. Murphy was acting in her representative capacity at the time of the incident, it is likely that any conversation Ms. Murphy may have had with [M.J.] before, during, or after the incident in question is protected by the attorney-client privilege.” See Writ No. 2017-C-0053.

      . See State v. Walters, 408 So.2d 1337, 1340 (La. 1982) ([U]nless contrary to law, rulings of the trial judge in pre-trial matters are generally shown great deference by this Court absent a clear showing of abuse of discretion,’)


author:
Judge Madeleine M. Landrieu
      LOBRANO, J.,

text:
    STATE of Louisiana v. Edward N. GREEN
    NO. 2016-KA-0793
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, PARISH OF ORLEANS, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPEL-LEE/STATE OF LOUISIANA
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Madeleine M. Landrieu

hThe defendant, Edward N. Green, appeals his convictions of three counts of armed robbery with a firearm and the sentences imposed by the trial court. For the reasons that follow, we affirm.

On January 6, 2014, the State charged Mr. Green with the armed robbery with a firearm of three individuals, a violation of La. R.S. 14:64.3. At his arraignment Mr, Green pled not guilty. The trial court denied Mr. Green’s motion to suppress the evidence and found probable cause. The case was tried before a jury on January 21-22, 2015. The jury returned a unanimous verdict of guilty on all counts. Mr. Green filed motions for new trial and for post-verdict judgment of acquittal, which were denied. On June 26, 2015, the court sentenced Mr. Green to twenty years at hard labor on each of the three counts, plus an additional five years on each count for the use of a firearm, for a total of twenty-five years on each count, without benefit of probation, parole or suspension of sentence, with credit for time served, and ordered that the sentences be served concurrently.

Mr. Green appeals his conviction and sentences, asserting three assignments of error:

(1) The evidence is insufficient to support the conviction;
|2(2) The trial court erred by denying the defendant’s motion in limine to exclude from evidence two guns retrieved in a search of the defendant’s residence; and
(3) The sentences imposed are excessive.

FACTS

In the early morning hours of July 5, 2013, the three victims: Matthew Merris (Matthew), Daniel Dilzell (Daniel) and Cecily Fogarty (Cecily), were at Cecily’s house on Coliseum Street when they were robbed at gunpoint.

Daniel testified that as he and Matthew were sitting and talking on the back porch of the house, he felt someone come up behind him. He turned and saw a light brown-skinned male, who had the lower portion of face covered with a shirt or bandana, standing in the porch doorway, pointing a gun in his face. Daniel recalled that the porch was well-lit the night of the robbery.

Matthew testified that when he saw the man enter the porch, he initially did not think anything was amiss because he knew that another friend was supposed to stop by the Coliseum Street residence. However, as the man stepped into the light, Matthew noticed his dreadlocks and the Rasta-type hat he wore, and saw that he was wearing a mask and pointing a gun at them. The intruder demanded their money and cell phones. At that point, Daniel ran inside the house to alert Cecily and call the police. The robber ordered Matthew to get on the floor, and, as he did, Cecily came out onto the porch to see what was going on. The robber ordered Cecily back into the house and again demanded the money and the cell phones, which were sitting on a table on the porch. After taking the phones and money from Matthew, the intruder left. Matthew waited until he was sure the intruder was gone before he got up and ran back into the house.

IsCecily testified that she was inside her house at about 3:15 a.m. when she heard a loud commotion on the back porch. Moments later, Daniel ran into the house; he was frantic. She knew Matthew had been with Daniel on the back porch, so she decided to investigate. When she opened the door leading onto the porch, she saw Matthew crouched underneath the porch table. She then saw the intruder with the lower part of his face covered, pointing a gun at her. The robber put the gun to her head and ordered her back into the house. Cecily went back inside and called 911. She told the dispatcher that the robber was wearing a black hat and described the gun the robber was using as being a “gunmetal” color.

New Orleans Police Department Detective Michael DiMarco investigated the armed robbery. Det. DiMarco contacted Matthew and obtained a physical description of the robber. Next, he spoke with Cecily, who gave a similar description. In the course of the investigation, the detective learned that iPhones belonging to Matthew, Daniel and Cecily, as well as $30.00 in cash, had been stolen during the robbery. Matthew asked the detective whether he should cancel his phone service. Det. DiMarco said no, telling Matthew to keep his phone service active because the police might be able to trace any calls made by the assailant. Thereafter, Matthew obtained his phone records and provided Det. DiMarco with a list of the phone numbers that had been called. Det. DiMarco singled out three calls that had not been made by Matthew. His investigation of the phone numbers to which these three calls had been placed led him to develop the defendant as a suspect,

|4Pet. DiMarco searched the police database for the defendant’s name and obtained a picture of the defendant. Thereafter, he located the defendant’s address and obtained a search warrant for that location. Accompanied .by other officers, Det. DiMarco executed the search warrant. The defendant’s grandmother answered the door and directed the police to the defendant’s bedroom.. Det, DiMarco confiscated three cell phones, which belonged to the three victims of this armed robbery. The detective also recovered a black' ,380 Bersa semi-automatic handgun from atop a chest of drawers in the defendant’s bedroom, a chrome and black BB gun, a black Rastafarian-style hat and a bank statement bearing the defendant’s name. Shortly thereafter, Det. DiMarco presented photo lineups to Matthew and Cecily, both of whom identified the defendant as the robber. Based upon their identifications, Det. DiMarco obtained a warrant for Mr. Green’s arrest. Officer Harold Nunnery arrested Mr. Green on November 6, 2013. Matthew and Cecily identified the defendant at trial as the person who had robbed them.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Mr. Green argues that the evidence presented at trial was insufficient to convict him of the charged offenses.

| ¡¡This court set forth the standard of review for sufficiency of the evidence in State v. Watkins, 2013-1248, pp. 13-14 (La. App. 4 Cir. 8/6/14), 146 So.3d 294, 303, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La. App. 4 Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall-, Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La. 1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La. 1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt, standard. State v. Jacobs, 504 So.2d 817 (La. 1987).

La. R.S. 14:64(A) defines armed robbery as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

Here, Mr. Green first argues that the State failed to prove Cecily was the victim of an armed robbery because the evidence showed she was in the house when her cell phone was taken from the porch.

|fiIn State v. Doan, 519 So.2d 174, 176 (La. App. 4th Cir.1987), this Court explained:

The requirement that there be property taken “from the person of another” has been broadened to include taking “in the presence of the person.” The felonious taking, more than the perfect title of the alleged owner, is the essence of the jury question in robbery cases. State v. Refuge, 300 So.2d 489 (La. 1974). See also State v. McClanahan, 262 La. 138, 262 So.2d 499 (1972); State v. Sanford, 446 So.2d 1381 (La.App.1st Cir. 1984).
It is sufficient if the property is under the person’s control so that, had the victim not been subjected to violence or intimidation by the robber, he could have prevented the taking. State v. Mason, 403 So.2d 701 (La. 1981). Property is considered taken from the presence of the victim even if the victim is in one room while valuables located in another room are removed. State v. Verret, 174 La. 1059, 142 So. 688 (1932); See also State v. Baldwin, 388 So.2d 664 (La. 1980), cert. denied 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981); La-Fave & Scott, Criminal Law § (1982).

For example, in State v. Long, 36,167, ppi 8-9 (La.App. 2 Cir. 10/30/02), 830 So.2d 552, a metal box containing money was taken in the armed robbery of a Moody’s Lounge while' the employee on duty was in the restroom, and the court found the money was sufficiently within the employee’s control to establish armed robbery.

In the present case, Cecily testified that after hearing a commotion on her porch, she went to investigate and was immediately threatened by the defendant, who put the gun against her head and ordered her back into the house; Based upon the aforementioned jurisprudence, even though Cecily was inside when the defendant took her cell phone from the porch table, she still possessed sufficient control over her phone to satisfy this element of armed robbery.

Additionally, Mr. Green contends the State failed to present sufficient 'evidence to prove his identity. When the identity of .the defendant as, the perpetrator is disputed, the State must negate any reasonable probability, of 17misidentification in order to satisfy its burden under Jackson v. Virginia, supra State v. Briley, 2013-1421 (La.App. 4 Cir. 10/1/14, 8), 151 So.3d 633, 639.

Here, the defendant was- identified as a suspect from Det, DiMarco’s investigation of the telephone calls that had been placed from Matthew’s cell phone after his phone was stolen. Pursuant to a search warrant, the three cell phones belonging to the three victims in this case were seized from the defendant’s bedroom. Additionally, Cecily and Matthew each identified the defendant in separate photo lineups and also at trial. Based on this evidence, we conclude the State proved the defendant’s identity as the perpetrator beyond a' reasonable doubt.

This assignment of error has no merit. ADMISSION OF IMPROPER EVIDENCE

In his second assignment, the defendant argues the trial court erroneously admitted into evidence a handgun and a BB gun retrieved during the search of his residence. The defendant contends that he was unfairly prejudiced by this evidence because none of the victims identified either weapon as the one used in the robbery.

In denying the defendant’s motion in limine to exclude the handgun and BB gun, the trial judge opined:

... [T]o deny the State the opportunity to present the evidence that was seized pursuant to the legally executed and legally obtained warrant would stymie the efforts of the State in presenting to the fury [sic] a full and complete picture of law enforcement efforts made in this case, and therefore, the Court will deny the motion in limine allowing the State to introduce the guns. It’s up to them whether they show the guns to the victims or just introduce them as seized evidence pursuant to the search warrant.

All relevant evidence is admissible, and evidence that is not relevant is not admissible. La. C.E. art. 402. Louisiana Code of Evidence article 401 defines |srelevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A trial court’s ruling as to the relevancy of evidence will not be disturbed absent a clear abuse of discretion. State v. Girard, 2012-0790, p. 6 (La.App. 4 Cir. 3/6/18), 110 So.3d 687, 691.

Louisiana Code of Evidence article 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” “Unfair prejudice,” as used in La. C.E. art. 403, means that “the offered evidence has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” Author’s Note (3), La. C.E. art. 403, Handbook on Louisiana Evidence Law, Pugh, Force, Rault & Triche, p. 380 (2011).

In this case, the State did not attempt to prove that either of these two guns was used in the robbery. The State asserted that the guns seized from the defendant’s residence were relevant because they showed the defendant had access to guns. Each victim testified at trial that he/she could not identify the particular gun the defendant wielded when he robbed them. Moreover, the investigating detective testified that the victims had not been able to identify the gun used. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. State v. Dove, 2015-0783, p. 30 (La.App. 4 Cir. 5/4/16), 194 So.3d 92, 112.

If evidence has been improperly admitted, the trial court’s decision to admit such evidence is subject to a harmless error analysis. State v. Ard, 2008-1440, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1166, 1170. For an error to be harmless, it Umust be shown beyond a reasonable doubt that the complained-of error did not contribute to the verdict. Id. (citing Chapman v. California) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The guilty verdict actually rendered in the trial must be unattributable to the error. Id. (citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).

Considering the totality of the evidence, we conclude that the admission of the guns seized pursuant to the search warrant executed at the defendant’s residence did not contribute to the verdict. Therefore, even if the trial court erred by admitting the guns, an issue which we do not reach, such error would be harmless.

This assignment of error lacks merit. EXCESSIVE SENTENCES

In his final assignment, the defendant complains his sentences are unconstitutionally excessive.

In State v. Celestain, 2013-1262, pp. 16-17 (La.App. 4 Cir. 7/30/14), 146 So.3d 874, this Court set forth the standard for reviewing excessive sentence claims:

La. Const. art. I, § 20 explicitly prohibit excessive sentences. State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La. App. 4 Cir. 4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La. 3/4/98), 709 So.2d 672, 676. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 10, 656 So.2d at 979.
|1ftAs articulated in State v. Stanfield, 2010-0854, p. 6-7 (La.App. 4 Cir. 1/19/11), 56 So.3d 428, 430, in reviewing a claim that a sentence is excessive the appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C. Cr. Proc. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La. C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

Id., 2013-1262, pp. 16-17, 146 So.3d at 884.

In this case, the statutory range for a conviction of armed robbery in violation of La. R.S. 14:64(B) is a sentence of ten to ninety-nine years at hard labor. La. R.S. 14:4.3 provides for a five-year enhancement where a firearm is used in the commission of the robbery. Accordingly, Mr. Green faced an enhanced sentence on each count ranging from fifteen to one hundred and four years; however, he was sentenced to twenty-five years on each of the three counts of armed robbery, with the sentences to be served concurrently. Mr. Green argues that these sentences are excessive considering that he has only one prior conviction in 2010 for possession of stolen property, for which he was sentenced to forty days of community service.

We disagree. We cannot say the sentence imposed in this case is grossly disproportionate to the offense.

In sentencing Mr. Green, the trial judge admonished him on the record, stating;

The court takes into account the sentencing guidelines that are articulated in the Louisiana Code of Criminal Procedure. And obviously, the most aggravating circumstance of this case is that there were three victims on that porch who were held up at gunpoint with an allegation that one of the victims»was struck in - the head with a pistol and another victim saying that the gun was held to her temple during this armed robbery.
|tl The court also notes as an aggravating circumstance that you had to be extradited or were extradited from Florida, You were in a stolen car when you were caught in Florida and apprehended and extradited back to Louisiana to face these charges.
Further as an aggravating circumstance, again, when the police went to execute the arrest warrant in your home, there were other items that had been stolen from various incidents. The police recovered a handgun, ammunition, three stolen iPhones, four GPS systems that were stolen, a Lexis key to a stolen vehicle, two laptop computers that were stolen, two iPods that were stolen, and a camera system that was stolen through various burglaries in New Orleans.
* * *
Again, I as the judge, cannot overlook certain things in the case: The testimony of the victims. The impact that this has obviously had. One victim, where the house was located of this robbery, sold her house because she was so traumatized- and did not want to live in that house,anymore, I believe she received a letter from you. I don’t take any ill intent from you sending her that letter but, again that, just in her mind, I .believe probably she felt that you knew where she lived and she sold the house and had to move.

The trial court s additionally noted that the defendant had rejected two. pretrial plea deals, one that would have required him to serve ten years and a later offer of fifteen years.

Mr. Green’s sentence on each count of armed robbery is at the low end of the statutory sentencing range. Moreover, Mr. Green’s sentences are lower than those that have been imposed on similarly-situated defendants, For example, in State v. Spencer, 2014-0003 (La.App. 4 Cir. 10/8/14), 151 So.3d 816, this Court affirmed as not excessive concurrent sentences of thirty-five years at, hard labor, without benefit of probation, parole or suspension of sentence, with each sentence enhanced by an additional five years at hard labor without benefits, for a defendant convicted of two counts of armed robbery with a firearm.

| iaMr. Green has failed to show that the trial court abused its discretion in sentencing him.

There is no merit to this assignment of error.

CONCLUSION

Accordingly, for the reasons stated, the defendant’s convictions and sentences are affirmed.

AFFIRMED

LOBRANO, J., CONCURS AND ASSIGNS REASONS.

LOBRANO, J.,

CONCURS AND ASSIGNS REASONS.

hi respectfully concur in the majority opinion. As the majority wrote, the admission of the .380 caliber firearm found in Defendant’s room is not in error. However, I find that the admission of the BB gun requires additional analysis.

An armed robbery requires a “dangerous weapon.” La. R.S. 14:64. A dangerous weapon “includes any gas, liquid or. other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2 (A)(3). However, the Bill of Information accuses Defendant of using a dangerous weapon, “to wit, a firearm” and Defendant received an additional five years for use of a firearm during an armed robbery under La. R.S. 14:64.3. In other parts of the Criminal Code, see La.' R.S. 14:37.4-14:37.5, a firearm is defined as “an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.” A BB gun, which propels with air, does not qualify.

Given that Defendant generally -raised the impropriety of admitting both weapons, I write separately to elaborate upon why the admission of the BB gun was not in error. There was, in fact, a firearm found along with this BB gun. Further, both weapons were admitted for the purpose of showing that Defendant had access to the means to commit an armed robbery! Given that the Louisiana |2Supreme Court has determined that a BB gun can be used as the means to commit an armed robbery, see State v. Watson, 397 So.2d 1337, 1342 (La. 1981), the BB gun is highly relevant, and admitting it was not erroneous. See La. C.E. art. 402; La. C.E. art. 403.

I respectfully concur.

      . One of these three calls was made to the defendant’s sister, who gave Det. DiMarco her brother’s name. During the trial, Deputy Jim Huey of the Orleans Parish Sheriff’s Department, the custodian of inmate telephone calls, identified a recording of a jailhouse phone call made by Mr. Green to his sister. In the recording, which was played for the jury, the defendant tells his sister he is no longer angry with her because she "did what she had to do.”

      . In addition, the detectives recovered other items, such ás laptops and a camera, which they determined to be property that had been reported as stolen iii other incidents.

      . The third victim, Daniel, was not asked to view any photo lineups because he had indicated he would not be able to identify the intruder.

      . The record reflects that Mr. Green was also charged with two counts of possession of stolen property valued at between $500 and $1,500 and three counts of possession of stolen property valued at under $500, to which he pled guilty on May 29, 2015, and was sentenced on June 26, 2015, These charges are not pertinent to this appeal.


author: Judge Terrel Broussard, Pro Tempore

text:
    Daniel HAMPTON v. DEPARTMENT OF FIRE
    NO. 2016-CA-1127
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017

      Louis L. Robein, Jr., Christina L. Carroll, ROBEIN URANN SPENCER PI-CARD & CANGEMI, APLC, 2540 Severn Avenue, Suite 400, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPEL-LEE, DANIEL HAMPTON
    Renee Goudeau, Assistant City Attorney, Elizabeth Robins, DEPUTY CITY ATTORNEY, Adam J. Swensek, CHIEF DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT, DEPARTMENT OF FIRE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel Broussard, Pro Tempore)
   Judge Terrel Broussard, Pro Tempore

|TThe defendant-appellant and “Appointing Authority”, the New Orleans Fire Department (“NOFD”), appeals a decision of the Civil Service Commission (“Commission”) dated July 7, 2016, in favor of the plaintiff-appellee, Daniel Hampton, ordering the NOFD to restore any back pay and emoluments related to his emergency suspension on July 2, 2013. For the following reasons, we hereby affirm the Commission’s ruling.

FACTS AND PROCEDURAL HISTORY

Mr. Hampton was a Firefighter with status as a permanent employee in the NOFD. On May 24, 2016, the Commission rendered a decision that granted in part Mr. Hampton’s appeal challenging an emergency suspension, and denied in part his appeal regarding the subsequent termination. On June 1, 2016, NOFD requested a rehearing solely on the Commission’s decision to reverse the emergency suspension arguing that there is no procedural requirement for a pre-j ¡.disciplinary hearing regarding an emergency suspension, The Commission granted NOFD’s motion for rehearing, but affirmed its decision that NOFD owed back pay and emoluments related to the emergency suspension of Mr. Hampton on July 2, 2013. In its well-written reasons attached to the July 7, 2016 judgment, the Commission stated, in pertinent part:

On August 19, 2013, Appellant [Mr. Hampton] received notice from NOFD that it was terminating his employment due to Appellant’s failure to improve his performance following a 90-day review period. This notice also informed Appellant that NOFD was “still awaiting the results of [Appellant’s] July 2, 2013 drug test.” On August 28, 2013, Appellant attended a pre-termination meeting during which members of NOFD’s senior leadership addressed Appellant’s poor performance and subsequent failure to improve.
By NOFD’s own account, the pre-ter-mination meeting was Appellant’s “opportunity to address [his] work performance.” The pre-termination meeting was focused on Appellant’s work performance and NOFD did not address the July 2, 2013 drug test and instead focused on Capt. Howlers special report and Civil Service Rules regarding service ratings. The Commission also notes that, at the time of the August 28th pre-termination meeting, Appellant had presumably served an almost two-month suspension as a result of the July 2nd allegations.
* * *
NOFD argues that there is no requirement for a pre-disciplinary hearing prior to placing an employee on an emergency suspension. However, La. R.S. § 33:2181 requires that, prior to the issuance of discipline, all fire employees be afforded specific due process protections. There is no distinction or exception for emergency suspensions contained within the statute or case law interpreting the statute. The only way NOFD can argue that it was not required to provide Mr. Hampton with an opportunity to respond to the allegations related to his July 2, 2013 drug test prior to placing Mr. Hampton on an emergency suspension is to allege that the emergency |ssuspension was not discipline. NOFD cannot take this position given that Appellant was prevented from reporting to work and was not paid. Indeed, NOFD acknowledged that Appellant’s emergency suspension was in fact discipline during its presentation.
NOFD relies upon this Commission’s Rules in support of its argument that a pre-disciplinary hearing is only required when a classified employee is being considered for termination. However, this Commission’s decision was not based on a violation of its Rules, but upon a violation of La. R.S. § 33:2181.
NOFD next argues that it provided Appellant with written notice — via July 9, 2013 letter to Appellant — of NOFD’s investigation prior to commencing a formal investigation. First, such a notice is only part of the due process required by § 33:2181. Second, this notice came one week after Appellant’s emergency suspension had already begun.
NOFD’s reliance on the Louisiana Civil Service Commission’s rules is misplaced. The State’s current rules define discipline only as “suspension without pay,” SCS Rule 12.3. The state repealed its rules regarding emergency suspensions cited by the City in its brief to the Commission. Now, the State’s rules allow for an emergency suspension without pay only when an employee is under criminal investigation. (Footnote omitted). Under the State’s rules, a “suspension” pending an administrative investí-gation must be with pay, and is thus not discipline under the state’s definitions. SCS Rule 12.10(a)-(d). (Emphasis in original)
As the City points out, the Commission found that the NOFD established, by a preponderance of the evidence, that the Appellant reported to work on July 2, 2013 impaired by prescription medication. However, such a finding does- not speak to the procedural soundness of the emergency suspension. (Emphasis in original)
The NOFD is understandably worried about a holding from the Commission that would require a pre-discipline meeting or hearing for any employee in the classified service. However, this decision is governed by state law as opposed to our Rules. Normally, permanent employees in the classified service facing discipline are ^entitled to a “pre-disci-plinary hearing” only when the discipline is termination. Rule IX, § 1.2. On the other hand, La. R.S. § 33:2181 mandates that any fire employee have an opportunity to present witnesses and evidence regarding any allegation prior to the issuance of discipline. Appellant was not provided with this opportunity regarding the July 2, 2013 drug test. NOFD’s argument that Appellant’s civil service hearing represented Appellant’s opportunity to present evidence and call witnesses in connection with the emergency suspension is unavailing since NOFD had already issued discipline at that point.

NOFD now appeals this July 7, 2016 ruling, alleging the following assignment of error: the Commission erred in concluding that a full-blown trial must occur before an impaired firefighter is placed upon emergency suspension — even though the Firefighters Bill of Rights imposes no such requirement and such requirement would be impractical and injurious to the public welfare..

STANDARD OF REVIEW

The review by appellate courts of the factual findings in a Civil Service Commission case is governed by the manifest error or clearly erroneous standard. Bannister v. Dep’t of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647. However, when the Civil Service Commission’s decision involves jurisdiction,' procedure and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty, to review questions of law and render judgment on the record. Russell v. Mosquito Control Board, 06-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40; Banks v. New Orleans Police Dep’t., 01-0859, 01-1302, p. 3 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14. A legal |serror occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Banks, 01-0859, 01-1302, at p. 3, 829 So.2d at 514.

DISCUSSION

The only issue before this court is whether Mr. Hampton was entitled to- notice and a pre-suspension opportunity to respond before NOFD placed him on emergency suspension, without pay, on July 2, 2013.

Employees with permanent status in the classified civil service may be disciplined only for- cause expressed in writing. La. Const, art. X, § 8(A). “Cause” for dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation, Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there' is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Bannister, 95-0404, at p. 8, 666 So.2d at 647.

The controlling statutory provision in this case is La. R.S. 33:2181, also known as the Firefighters Bill of Rights, which states as follows:

A. Unless context otherwise requires, the following terms when used in this Subpart shall be given the meanings assigned below:
(1) “Fire employee” includes any person employed in the fire department of any municipality, parish, or fire protection district maintaining a full-time regularly paid fire department, regardless of the specific duties of such person within the fire department, and who is under investigation with a view to possible disciplinary action, demotion, or dismissal.
(2) “Interrogation” includes but is not limited to any formal interview, inquiry, or questioning of -any fire employee by |fithe ’ appointing authority or the appoint- - ing authority’s designee regarding misconduct, allegations of misconduct, or policy violation. An initial inquiry conducted by the fire employee’s immediate supervisors shall not be considered an interrogation.
B. Whenever a fire employee is under investigation, the following minimum standards shall apply:
(1) Prior to commencing a formal investigation of a fire employee, the appointing authority shall notify the employee in writing of the nature of the investigation, of the identity and authority of the person conducting such investigation, and of the spéeifíc charges or violations being investigated.
(2) The fire employee being investigated-shall be informed in writing at the commencement of any interrogation of the nature of the investigation, of the identity and authority of the person conducting such investigation, of the identity of all persons present during such interrogation, and of the specific charges or violations being investigated. The fire employee shall be allowed to make notes.
(3) Any interrogation of a fire employee in connection with an investigation shall be for a reasonable period of time and shall allow for reasonable periods for the rest arid personal necessities of such fire employee.
(4) All interrogations of any fire employee in connection with the invésti-gation shall be recorded in full. The fire employee shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements, upon submitting a written request to the fire chief.
(5) The fire employee shall be entitled to the presence of his counsel or representative, or both, at any interrogation in connection with the investigation. The fire employee’s ^representative or counsel shall be allowed to -offer advice to the employee and to make statements on the record at any interrogation in the course of the investigation. -
(6) The counsel or representative for the fire employee under investigatiori may call witnesses to testify on the employee’s behalf.
(7)'No statement made by a fire employee during the course of an administrative investigation shall be admissible in a criminal proceeding.
C. No fire employee shall be disciplined, demoted, dismissed or be subject to any adverse action unless the investigation is conducted in accordance with this Sub-part. Any discipline, demotion, dismissal or adverse action of any sort taken against a fire employee without complete compliance with the provisions of this Subpart is an absolute nullity.

NOFD placed Mr. Hampton on an “emergency suspension” due to an allegation that he reported to work on July 2, 2013 impaired by illegal or illicit drugs. In his notice of the emergency suspension, given to him on July 9, 2013, it stated that “this emergency suspension will remain in effect pending the outcome of the July 2, 2013 drug test result. Additional action may be warranted by the department based on the outcome of this test, and based upon further evaluation of your job performance during the review period necessitated by your unsatisfactory service rating.” Although the July 2, 2013 drug test was positive for amphetamines, NOFD acknowledged the fact that Mr. Hampton had a prescription for Adderall in 2012, which could have accounted for the positive test result. On August 19, 2013, the NOFD provided notice that it would “conduct a pre-termination hearing ... on August 28, 2013... to give you [Mr. Hampton] the opportunity to address your work performance, and to make your case for why you should be allowed to | ^continue your employment.” On September 17, 2013, NOFD notified Mr. Hampton of its decision to terminate his employment based on deficiencies in his work performance; The Superintendent of the NOFD, Timothy McConnell, testified at the Commission hearing regarding whether Mr. Hampton was terminated for the July 2, 2013 drug test or for poor performance, and stated as follows:

Q. All right. So he’s [Mr. Hampton] suspended on July 2, 2013, based on the drug test; is that right?
A. Right.
Q. And eventually the drug test comes back and he’s positive for amphetamine, right?
A. In July, yes.
Q. So did the second drug test play a part in the termination?
A. The behavior that led to the drug test played a role in his termination. The fact that he was incoherent by . several supervisors looked at him, evaluated him and determined that he was incapable of doing his job, that led to a drug screening. That was taken into consideration not the results of the drug test.
If they [sic] were something that was worthy of discipline, I’d have probably taken further action based on the drug test. But the fact that he was unable to do his job and it led them to think that something was wrong, that certainly was taken into consideration.

Although the record indicates that a hearing was held with respect to Mr. Hampton’s failure to meet his performance standards, it does not reflect that Mr. Hampton was provided with a hearing regarding his emergency suspension, without pay, due to the alleged drug use. Moreover, the record supports the fact that it was not Mr. Hampton’s positive drug test for amphetamines from July 2, |n2013 that contributed to NOFD’s decision to terminate his employment; rather, it was his poor performance and inability to meet performance standards.

The purpose of hearings is to prevent arbitrary disciplinary decisions and unfounded suspensions or terminations. Under these facts, we agree with the Commission that NOFD violated La. R.S. 33:2181, which mandates that any fire employee “shall be entitled to the presence of his counsel or representative, or both, at any interrogation in connection with the investigation... and shall be allowed to offer advice to the employee and to make statements on the record at any interrogation in the course of the investigation,” when it suspended Mr. Hampton without pay on July 2, 2013. Further, Mr. Hampton was denied his right under La. R.S. 33:2181 to “call witnesses to testify on the employee’s behalf’ regarding the alleged drug charge on July 2, 2013.

This Court held in Tugwell v. Plaquemines Parish Government, 14-0657, p. 4 (La.App. 4 Cir. 11/19/14), 154 So.3d 695, 698, that suspension without pay constitutes discipline under La. Const, art. X, § 8(A) when it affirmed the disciplinary action of a five-day suspension without pay imposed upon Mr. Tugwell for causing a preventable accident that resulted in damage to a Parish owned dump truck. Likewise, the First Circuit in King v. Dep’t. of Transp. and Dev., 607 So.2d 789, 792 (La. App. 1st Cir. 1992) also found a disciplinary action consisting of a sixty-day suspension without pay would adequately serve to deter any future misconduct and thus, was not excessive and unusual punishment. Therefore, NOFD violated Mr. Hampton’s basic due process rights as required under La. R.S. 33:2181 when it disciplined Mr. Hampton by suspending him without pay. Because the state civil service rules authorize suspension with pay pending investigation under CSC Rule 12.10(a)-(b), the simple solution would Imhave been to suspend Mr. Hampton with pay and proceed with its discipline based on his alleged failure to meet performance standards.

For these reasons, we hereby affirm the Commission’s judgment in granting Mr. Hampton’s appeal in regard to the July 2, 2013 emergency suspension without pay, and its ruling that NOFD remit to Mr. Hampton all back pay and emoluments related to his time on suspension.

AFFIRMED

      . The Commission combined Mr. Hampton's two appeals involving the emergency suspension and subsequent termination into one matter.

      . The parties are not appealing the portion of the Commission’s ruling denying Mr. Hampton’s appeal of his termination.


author: Judge Roland L. Belsome

text:
    STATE of Louisiana v. Octavia T. GARY
    NO. 2016-KA-0714
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Orleans Parish, Scott G. Vincent, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Michael H. Idoyaga, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet)
   Judge Roland L. Belsome

RThe defendant, Octavia Gary, was convicted of second degree murder and obstruction of justice. For the reasons that follow, we affirm the convictions.

Facts

The defendant, Octavia Gary, and Anderson Soco dated and lived together off and on for five years. At the time of the incident, the couple resided at 8531 Green Street in New Orleans.

On April 7, 2013, a 911 dispatcher received a call from the defendant at 5:04 am. During that call, the defendant told the dispatcher that her boyfriend had been stabbed and that someone had “dropped him off from the club,” but she did not know the person or persons. When asked to identify the nightclub, the defendant responded that she did not know. The dispatcher asked how many times the victim had been stabbed, and the defendant can , then be heard asking the victim to show her; then, the defendant responded that the victim had been stabbed once. In the background of the recording, the defendant can be heard telling the victim to apply pressure to his wound, asking him where his pants were and if he wanted his clothes changed.- Then the defendant can be heard telling the victim that help was Ron the way and then telling hersélf, “I need to clean, I need to change, I need to get my purse...” The recording was terminated several seconds later.

Subsequently, the defendant was arrested for the murder of Mr. Soco. She was charged with second degree murder and obstruction of justice. After trial and deliberations, the jury . returned • verdicts of guilty on' both counts. Thereafter, the defendant filed a motion for a new trial and a motion for post-verdict judgment of acquittal, both of which were denied by the trial court. The trial court imposed the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on the count of second degree, murder,, and 20 years imprisonment at hard labor on the count of obstruction of justice, to run concurrently. This appeal followed.

Assignments of Error

On appeal the defendant challenges the sufficiency of the evidence to sustain her conviction of second degree murder, and she also maintains that the trial court erroneously allowed questioning on inadmissible evidence.

Sufficiency of the Evidence

The defendant was convicted of violating La. R.S. 14:30.1, second degree murder. The statute provides that second degree murder applies to the killing of a human being by an offender who “has a specific intent to kill or to inflict great bodily harm." Specific intent is the state of mind which exists when circumstances indicate the offender actively desires prescribed criminal consequences to follow his act. Specific intent need not be proven as fact, but may be inferred from the | ¡¡circumstances of the transaction and the actions of defendant. The use of a deadly weapon in lethal circumstances will support a finding of specific intent.

The United States Supreme Court set out the standard of review for a sufficiency of the evidence claim on appeal in Jackson v. Virginia. In Jackson, the Court stated:

.. .the relevant question 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 beyond a reasonable doubt... .This familiar standard gives full play to the responsibility of-.the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

“Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court.” Further, “a factfin-der’s credibility determination is entitled to great weight and should not be disturbed unless it is contrary to the evidence.” In cases that are proven on circumstantial evidence, like this one, the rule 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.” Further, the Louisiana Supreme Court, in State v. Davis, articulated that the possible alternative hypothesis has to be “sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia.”

| ¿At the trial in this case, the State presented several witnesses to testify as to the defendant’s previous behavior toward the victim, the victim’s actions on the morning of the murder, the confrontation that erupted between the defendant and the victim, and the defendant’s actions after the stabbing. Other evidence presented by the State included, among other things, photographs from the couple’s residence, the 911 phone recording, and cellular phone records from the defendant and the victim.

The first witness to testify was Officer Michelle Johnson, a member of the New Orleans Police Department’s Communications Division. She authenticated the call record and the recording for the 911 call placed on April 7, 2013 at 5:04 a.m. She also identified the call record from the victim’s cell phone number that reported a stabbing at 8531 Green Street in 2011.

Another witness, the victim’s brother, Wilbert Soco, testified that he was on the phone with the victim while the victim walked home from a bar the victim had been at on the morning of April 7, 2013. He stated that the call originated at approximately 3:00 a.m. and lasted 15 to 20 minutes. According to Wilbert, the brothers ended the call just before the victim arrived at home.

The woman that resided next door to the defendant and Mr. Soco, Lili Love, was interviewed by the detectives on the morning of April 7, 2013. She was called to testify regarding her observations on that morning. She stated that the defendant and Mr. Soco fought often, and the defendant was usually the aggressor. Her statement further revealed that she observed the defendant out on the porch and Mr. Soco sitting on the steps. Ms. Love said she was able to observe the incident Ififrom her bedroom window and could hear screaming “clear as day.” She overheard the defendant screaming expletives at Mr. Soco and threatening to hurt him. She saw the defendant return inside the residence, then emerge back outside cursing at Mr. Soco again. Then, Ms. Love saw them both enter the residence and heard them “rumbling and tussling as though they were coming through the wall.” Later, she saw the victim come outside clutching his chest and sitting down on the front porch, steps. Ms. Love’s statement reflects that it was between 3:00 and 4:00 a.m. because she heard the defendant “call the time” when defendant said, “Bitch, it’s almost four f***ing o’clock in the morning and you know I don’t like being here by my f***ing self!” She further stated that she saw the police and ambulance arrive around 5:00 a.m. Although Ms. Love did not witness the defendant stab Mr. Soco, she did state that on two prior occasions she witnessed the defendant threaten him with a kitchen knife.

The jury also heard the testimony of Dr. Erin O’Sullivan, the coroner that examined Mr. Soco’s body. She testified that the lower portion of Mr. Soco’s heart had been pierced by a sharp object. That caused his heart to start pumping blood into his chest cavity. She stated that it would have taken some amount of time for the chest cavity to completely fill with blood until the blood would exit the body, rendering it possible for someone to have been stabbed there but not realize the seriousness of the wound until later. She stated that it would have been possible for an individual who had sustained such a wound to continue walking around and to sit down, possibly even have a short conversation, but the individual would |6ultimately exsanguinate in a little over an hour. Dr. O’Sullivan also testified that with immediate medical care, the victim’s life might have been saved.

To further support the case against the defendant, the State introduced the cellular phone records of both the victim and defendant, which showed that the defendant made twenty phone calls to the victim’s cell phone between the hours of 12:12 a.m. and 2:51 a.m. on April 7, 2013. The victim’s cell phone records reveal that he called the defendant’s phone at 2:51a.m. and the call lasted just over three minutes. Five minutes later, the victim placed a call to his brother which lasted fifteen minutes, terminating at 3:14 a.m. That was the last call placed from the victim’s phone.

The defendant’s cell phone records revealed that she placed forty-seven phone calls to three unknown phone numbers between 3:13 a.m. and 3:58 a.m., most of which lasted fewer than fifteen seconds. No phone calls were made or received after 3:58 a.m. until defendant placed a call to 911 at approximately 5:04 a.m.

The evidence presented by the State contradicted the statements made by the defendant asserting that Mr. Soco was stabbed prior to arriving home and that she called 911 immediately. Through testimony and phone records, the State was able to establish that the 911 call at 5:04 a.m. was made approximately two hours after Mr. Soco got home. Additionally, Detective Vaught testified that, in his professional opinion, the stabbing occurred in the master bedroom based on the amount of blood spatter in the room. Also, Officer Harris testified that the blood in the master bedroom appeared old, dark, and dried into the carpet, indicating it had been there for a while before first responders arrived at the scene.

|7The evidence, taken as a whole, in the light most favorable to the prosecution, was sufficient for a rational juror to find beyond a reasonable doubt that the defendant was guilty of second degree murder.

Second Assignment of Error

The defendant’s second assignment of error states that the trial court erred in allowing the prosecutor to repeatedly question a law enforcement officer witness regarding the defendant’s statement, which the court had ruled inadmissible. However, the record does not reflect that any of the defendant’s statements were ruled inadmissible. Additionally, in briefing the assignment of error, the defendant only asserts that improper comments were made by the prosecutor during questioning of a witness, and those comments violated a previous ruling by the trial court. A review of the testimony in question does not indicate any improper statements were made or that the questioning was in violation of an evidentiary ruling. This assignment of error is without merit.

Conclusion

Accordingly, the defendant’s convictions and sentences are affirmed.

AFFIRMED

      . La.R.S. 14:30.1.

      . La. R.S.14:30.1, A(1).

      . State v. Hickman, 15-0817, p.11 (La.App. 4 Cir. 5/16/16), 194 So.3d 1160, 1161.

      . State v. Brown, 03-0897 (La. 4/12/05), 907 So.2d 1.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Id., 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

      . State v. Williams, 11-0414 p. 18 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 771.

      . Id.

      . La. R.S. 15:438.

      . 92-1623 (La. 5/23/94), 637 So.2d 1012, 1020 (emphasis supplied).

      . Testimony from Mr. Soco’s sister, Monyet-ta, and his son, Anderson, likewise described excessive fighting and the defendant as the aggressor.

      . Mr. Soco’s son, Anderson, also testified to seeing the defendant threaten his dad with a knife on a previous occasion.