author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    STATE of Louisiana v. Tyrone HANDY
    NO. 2016-KA-1071
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 13, 2017
    Rehearing Denied October 2, 2017

      LEON. A. CANNIZZARO, JR, DISTRICT ATTORNEY, ORLEANS PARISH, DONNA. ANDRIEU, Assistant District Attorney, Chief of Appeals, J. TAYLOR GRAY, Assistant District Attorney, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE
    ANTHONY J. IBERT, J.C. LAWRENCE & ASSOCIATES, 303 South Broad Street, New Orleans, Louisiana 70119, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Daniel L. Dysart)
   JAMES F. MCKAY III, CHIEF JUDGE

|]The defendant appeals his conviction and asserts numerous assignments. Based on the record before this Court, vital portions of the voir dire transcript are unavailable, which warrants the vacating of the defendant’s conviction and sentence and the remanding of the matter for a new trial. A full analysis and discussion follows below.

STATEMENT OF CASE

On January 16, 2013, the State charged Tyrone Handy (defendant) with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(B)(1); possession of marijuana, third or subsequent offense, a violation of La. R.S. 40:966(E)(c)(i); and misdemeanor possession of drug paraphernalia, a violation of La. R. 40:1023(C).

The defendant pled not guilty to all charges at his arraignment on January 22, 2013.

On October 25, 2013, the court granted the State’s Prieur motion.

On February 6, 2014, the trial court denied the defendant’s motions to suppress the statement and evidence and found probable cause for possession with intent to distribute cocaine, possession of marijuana and misdemeanor possession of drug paraphernalia.

|2On May 20, 2015, the trial court denied the defendant’s Motion to Reveal the Identities of the Confidential Informants (“Cl”).

On May 21, 2015, the jury found the defendant guilty of attempted possession with intent to distribute cocaine and possession of marijuana, second offense. The trial judge found the defendant guilty of misdemeanor possession of drug paraphernalia.

On June 29, 2015, the defendant filed a Motion for New Trial, which the court denied July 9,2015.

On September 4, 2015, the judge sentenced the defendant to thirteen years for attempted possession with intent to distribute cocaine; two years at hard labor for possession of marijuana, second offense; and six months for misdemeanor possession of drug paraphernalia, sentences to run concurrently. That same day, pursuant to La. R.S. 15:529.1 (Louisiana Habitual Offender Law), the State multiple billed the defendant charging him as a fourth felony offender.

On March 3, 2016, the defendant was adjudicated a third felony offender based upon one prior conviction for distribution of cocaine and another prior conviction for attempted possession with intent to distribute cocaine. The trial judge vacated the defendant’s previous sentences and resen-tenced him to thirty years.

STATEMENT OF FACT

Detective Gabriel Favaroth of the Major Case Narcotics Division recounted that his investigation in the instant prosecution began on November 14, 2012, when he received information from a “Cl” that “Brother” (A.K.A. Tyrone Handy) was selling crack cocaine at the LaQuinta Inn on the 1-10 Service Road in New Orleans East. Detective Favaroth set up a controlled buy from “Brother,” who was ladealing from room 408. Detective Favar-oth drove the Cl to the location, searched him for contraband and then provided the Cl with marked bills to make the purchase. Detective Favaroth accompanied the Cl to the fourth floor of the inn to observe the purchase from a concealed vantage point in the hallway. The Cl gave the suspect $200.00 in marke,d bills. The suspect handed narcotics to the Cl, who then returned to Detective Favaroth, surrendered the narcotics and left the area. Detective Favaroth relocated to police headquarters and deposited the contraband in Central Property and Evidence under item number K19419-12. Two days after the controlled buy, Detective Favar-oth obtained a search warrant for the room from which the defendant, aka “Brother,” sold the narcotics to the CL

Detective Favaroth learned the defendant would frequent the LaQuinta Inn between noon and 10:00 p.m. and drove a white Tundra truck, which had red cardboard mounted in the area the license plate should have been, so Detective Fa-varoth positioned officers in the 12000 block of the 1-10 service road, while he waited near the Bullard Avenue off-ramp, to intercept the defendant before he could make it to the LaQuinta Inn. When Detective Favaroth spotted the defendant’s vehicle, he radioed the other officers. Detective Henly stopped the defendant on the service road and relocated him to the inn’s parking lot. Detective Favaroth gave the defendant the warrant to search room 408. The defendant surrendered the room key to Detective Favaroth. The defendant remained with Sergeant Anthony Rome in the parking lot while Detective Favaroth and other officers proceeded to search room 408. Detective Favaroth knocked on the door. |4When he received no reply, he entered the room. After confirming the room was empty, Detective Favaroth radioed Detective Henly to bring a narcotics dog to the room.' Officers confiscated a digital scald, a razorblade, baking soda, one glass beaker and five plastic sandwich bags containing white rock-like substances. Detective Favaroth retrieved one bag of vegetable matter plus $531:00 from the defendant’s pocket, all of which were deposited in Central Property and Evidence. Detective Derrick Burke also assisted Detective Favaroth in securing room 408, and in the execution of the search warrant obtained for that room. Detective Burke testified that based on his observation, expertise and training he concluded that the defendant was making crack cocaine and packaging it for distribution.

Detective Joseph Hazelett of the NOPD Major Case Narcotics Unit participated in this investigation. Detective Hazelett and other officers accessed room 408 with a key given to them by the defendant. Several days after the defendant’s arrest, Detective Hazelett accompanied Detective Favaroth and Sergeant Rome to the La-Quinta Inn, seeking footage from video surveillance of the inn; however, the surveillance camera on the fourth floor was not working at the- time of the incident;

Sergeant Anthony Rome "of the Major Narcotics Unit was part of the take-down unit, which apprehended the defendant driving a white Toyota Tundra truck. Sergeant Rome transported the defendant to the LaQuinta Inn. Sergeant Rome testified that several days after the search and the defendant’s arrest, he returned to the La-Quinta Inn in search of security camera footage, but none was located because the video system on the fourth floor was not operational during the time period.

| fiDeputy Chris Henly, was an NOPD Major Case Narcotics Detective in 2012. He assisted in the operation by stopping the defendant’s vehicle. He also relocated to room 408 at the LaQuinta with his canine who alerted to the presence of narcotics in the entertainment .center where four bags of crack cocaine were retrieved.

Glen Gilyot testified by stipulation as an expert in the examination and analysis of controlled substances. Gilyot tested the contraband containing varying amounts of rock-like substances*—cocaine, and one bag of vegetative material—marijuana. Gilyot also said that a scale and razorblade seized in this case contained cocaine residue.]

The defense witness Ms. Anastasia Brown testified that she was the front desk manager of the LaQuinta Inn in New Orleans East in November 2012. She testified that room 408 was not rented to the defendant on that day but rather to a woman whose name she could not recall. Ms. Brown stated that the video surveillance system for the entire inn, contrary to the officer’s testimony, was operational on November 19, 2012, and that the police did not ask to view any surveillance videos. She said she was sure the system was working because she was responsible for its maintenance.

Mr. Gene Durand testified that he was the general manager of the LaQuinta Inn in November 2012. Durand- said his employment at the inn began at the beginning of November 2012, and at that time the surveillance cameras were not recording the activity on the premises, only monitoring the area. He verified that there were incidents of prostitution at the inn. He added that the lock on the back door to the inn did not lock properly in November 2012 so that anyone could access the inn undetected.

| (¡NOPD Detective. Darren Brazley testified that from June 2012 to the time of the trial there were approximately one hundred 911 calls concerning the La Quinta Inn reporting drug activity.

ERRORS PATENT

A review for errors patent on the face of the record reveals one. The defendant’s sentence is illegally lenient. The defendant was adjudicated a third felony offender for his conviction of attempted possession with intent to distribute cocaine, La. R.S. 40:(979)967(A)(1), and was sentenced to thirty years.

Louisiana’s Habitual Offender Law provides that any sentence imposed thereunder shall be without benefit of probation or suspension of sentence. See La. R.S. 15:529.1(G). In this case, the trial judge failed to restrict those benefits when sentence was imposed. However, La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are- not recited at sentencing, they are deemed contained in the sentence whether or not specified by the sentencing court, and are therefore statutorily effective. Pursuant to State v. Williams, 2000-1725, pp. 10-11 (La. 11/28/01), 800 So.2d 790, 798-799, the sentence is deemed to have been imposed with the restriction of benefits even in the absence of the district court delineating them. Accordingly, there is no need for corrective action.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues he is entitled to reversal of his conviction and sentence, and a new trial, because the record in this matter is incomplete, given that the voir dire transcript does not provide a basis upon which it can be determined whether his challenge for cause was improperly denied by the trial court.

17La. Const, art. I § 19 guarantees defendants a right of appeal “based upon a complete record of all evidence upon which the judgment is based.” Additionally, La. C.Cr.P. art. 843 provides in pertinent part:

In felony cases,[... ] the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

Nonetheless, an incomplete record may be adequate for Ml appellate review. State v. Thomas, 92-1428, 93-2083 (La. App. 4 Cir. 5/26/94), 637 So.2d 1272, 1274.

The Louisiana Supreme Court enunciated a three-part standard for reviewing incomplete record claims. State v. Frank, 99-0553, pp. 20-21 (La. 1/17/01), 803 So.2d 1, 19-20. First, “[mjaterial omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal.” id., 99-0553,p. 20-21, 803 So.2d at 19-20 (citing State v. Robinson, 387 So.2d 1143. (La. 1980) (finding omissions material as substantial portions of the record were missing, including the testimony of four state witnesses, voir dire examination of prospective jurors, and the prosecutor’s opening statements)); See also State v. Diggs, 93-0324 (La. App. 4 Cir. 6/29/95), 657 So.2d 1104 (finding unavailability of witness testimony required a new trial because it could not be determined whether the missing testimony was substantial or inconsequential).

Second, “inconsequential omissions or slight inaccuracies do not require reversal.” Frank, 99-0553, p. 21, 803 So.2d at 20 (citing State v. Goodbier, 367 So.2d 356, 357 (La. 1979) (declining to reverse when record did not include voir dire examination transcript and the court reporter’s affidavit indicated that nonobjections were made by the attorneys, during voir dire); See also State v. Lyons, 597 So.2d 593 (La. App. 4th Cir. 1992).

Third, “a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. Frank, 99-0553, p. 21, 803 So.2d at 20 (citing State v. Castleberry, 98-1388, p. 29 (La. 4/13/99), 758 So.2d 749, 773). “Prejudice is presumed when a defendant’s challenge for cause is erroneously denied by a trial court and that defendant exhausts his peremptory challenges.” State v. Thomas, 14-0510, p. 17 (La. App. 4 Cir. 5/20/15), 171 So.3d 959, 971 (citing State v. Odenbaugh, 10-0268, p. 24 (La. 12/6/11), 82 So.3d 215, 237).

In this case, the court reporter filed, a certificate dated January 25, 2017, attesting that she was unable to provide a transcript of the in-chamber proceedings regarding the peremptory and cause chai-lenges because her computer “crashed.” The portions of the voir dire that are transcribed concern objections during the panel questioning. However, the portions of the record pertaining to the trial court’s consideration of peremptory and cause challenges are not included. The record contains an affidavit from defendant’s trial counsel certifying the defense exercised all of its peremptory challenges on potential jurors 2, 9, 10, 12, 16, 20, 25, 28, 30, 32 and 34 of the venire; the defense challenged potential juror 20 for cause, which was denied by the court; and the State challenged potential juror 21 for cause which was granted, over defense objection.

In State v. Pinion, 2006-2346 (La. 10/26/07), 968 So.2d 131, the record contained neither a transcript of the bench conferences nor any documentation showing which jurors were challenged for cause by the defense or stricken by the defense with peremptory challenges. The Supreme Court found that although there |3was evidence in the record that the defense exhausted its peremptory challenges, the lack of any documentation, i.e., minutes or jury strike sheets, as to the challenges for cause prejudiced the defendant. Id., 06-2346, p. 9, 968 So.2d 131, 135. Therefore, the Supreme Court reversed the defendant’s conviction and sentence for lack of documents in the record which would have indicated whether the trial court correctly denied any challenges for cause. Id.

The difficulty in this case, as in Pinion, is the fact that the discussions of the jury challenges are not available and the record does not contain any documentation, i.e., minute entries, jury strike sheet—from which it can be determined whether there was a basis for the challenge for cause that the defense brought and was improperly denied by the trial court, thereby causing the defense to exercise a peremptory challenge against a juror. The record does not contain enough information for defendant to effectively challenge the denial of his challenge for cause. Based on the holding in Pinion, other applicable jurisprudence and the record before us, this assignment has merit and requires that we vacate the defendant’s conviction and order the trial court to have a new trial.

Although we find that the defendant’s first assignment of error is dispositive of this appeal, we will address the defendant’s remaining assignments of error.

The defendant’s assignment of errors number 2 and number 3 both involve issues concerning the State’s “Prieur Notice”, the notice of intent to offer evidence of other crimes pursuant to State v. Prieur, 277 So.2d 126 (La. 1973). We preface the following discussion with a brief rendition of the State’s Preiur evidence against the defendant.

Prieur incident:

| November 14, 2008; Possession of crack cocaine and marijuana

Detective Mike Dalferes testified that on November 14, 2008, he participated in the investigation and arrest of the defendant for possession of crack cocaine and possession of marijuana. Detective Dalferes recalled that his investigation of the defendant stemmed from information supplied by a confidential informant and based on that evidence, Detective Dalferes obtained a search warrant for a residence, which, in turn, led to officers conducting surveillance of a room in the Gentilly Econo Lodge Motel. The officers observed suspected narcotics trafficking—people coming to the room and staying a short time and then leaving. The officers stopped a suspect they witnessed make a purchase at the room and recovered two pieces of crack cocaine and some crack pipes. The officers continued to surveil the motel and intercepted the defendant when he attempted to leave. They returned him to the motel room, which they entered via the key the defendant supplied. The officers found crack cocaine, scales, plastic bags, and marijuana in plain view in the room and arrested the defendant.

Sergeant Anthony Rome arrested the defendant in 2008 after officers executed a search warrant on a room of the Econo Lodge on Chef Menteur Highway and confiscated marijuana, crack cocaine, a scale, baggies and a razorblade. The defendant had approximately $700.00 at the time of the arrest.

Prieur incident:

July 29,2009; Distribution of Cocaine

Detective Derrick Burke of the NOPD Major Narcotics Division was the lead investigator in the July 29, 2009, investigation of the defendant. Detective Burke explained that his division investigated narcotics activity through In surveillance, from complaints and reports from private citizens, CIs and undercover operations. Pursuant to information received from a Cl, Detective Burke obtained a search warrant for the defendant’s apartment, located in the 8000 block of Trapier Court. The search yielded drug paraphernalia, cocaine, a glass measuring beaker containing cocaine residue, a digital scale, razorblades and plastic baggies, all of which were in plain view upon entering the apartment. The officers confiscated over $2,000.00 from the defendant. In addition, two other suspects were arrested with the defendant. Detective Burke testified that the defendant pled guilty to the 2009 narcotics charge.

During cross-examination, Detective Burke said the Cl made a controlled buy from the defendant at his residence. Detective Burke observed the buy, through binoculars, while seated in his vehicle, which was parked across the street. Detec-five Burke admitted he could not see the crack cocaine exchanged because the rock was so small, but he verified the substance as crack when the Cl surrendered it to him. Pursuant' to his observation, Detective Burke obtained a search warrant for the defendant’s residence.

Prieur incident:

February 14, 2005; possession of marijuana, first offense

The trial' Court accepted NOPD Officer Joseph Pollard as an expert in the field of fingerprint analysis. Officer Pollard identified a fingerprint card, bearing "the defendant’s fingerprints, which was taken on May 19, 2015 by Officer Jackson. Officer Pollard identified a certified copy of a 2004 arrest register in the defendant’s name. Officer Pollard compared the fingerprints on State’s Exhibit 16 to the fingerprints on State’s Exhibit 15 and determined that both sets of fingerprints belonged to the defendant.

haNext, Officer Pollard identified as the certification packet for Orleans Parish under case no. 450-874 pertaining to a prior conviction. Officer Pollard’ compared the fingerprints on State’s Exhibit 15 to the fingerprints on the completed guilty plea form contained in State’s Exhibit 17. He could not determine a match because-the prints on the guilty' plea form were too dark. Instead, Officer Pollard obtained fingerprints, which were éontained on the back of the bill of information, contained in the original case file no. 450-874. He compared the fingerprints on the bill of information to the fingerprints on State’s Exhibit 15 and concluded that the prints on the bill of information in State’s Exhibit 17 matched the fingerprints on State’s Exhibit 15 and belonged to the defendant. Officer Pollard testified, that the guilty plea form dated February 14, 2005; contained in State’s Exhibit 17 reflected that the defendant pled guilty to possession of marijuana, first offense,

Prieur incident:

February 15, 2011; distribution of cocaine

Officer Pollard also testified as to the certified copy of the fingerprint card, from an arrest register dated July 29, 2009, bearing the defendant’s name and pertaining to an arrest for possession of Schedule II drugs and drug paraphernalia. Officer Pollard compared fingerprints on State’s Exhibit 15 with the fingerprints in State’s Exhibit 19 and found that the two sets of prints were identical and belonged to the defendant.

Continuing, Officer Pollard testified that the arrest card bearing- the defendant’s name and fingerprints relative to a certification pack containing a Boykin form for a guilty plea to distribution of cocaine on February 15, 2011. | ^Officer Pollard compared the fingerprints on States Exhibit 15 to the fingerprints contained in State’s Exhibit 20. The prints belonged to the defendant.

Officer Pollard identified State’s Exhibit 21 as a certified copy of an arrest card in case no. 491-160 bearing the defendant’s name and dated August 23,2009. The comparison of the fingerprints on State’s -Exhibit 21 with State’s Exhibit 15 produced a positive match between the sets of prints.

Next, Officer Pollard examined the certification pack for possession with intent to distribute cocaine. Officer Pollard compared the fingerprints contained in State’s Exhibit 22 with those of State’s Exhibit 15. He concluded the fingerprints on State’s Exhibit 15 and those contained in State’s Exhibit 22 were from-the same person. Officer Pollard had no doubt that all of the fingerprints, contained in the previous documents were a match to the defendant based upon a comparison with the prints on State’s Exhibit 15.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment, the defendant argues the trial court erred by-not ordering the State to disclose the names or production at trial of the informants whose actions are depicted in the State’s Prieur notice. The defendant reasons his inability to confront the informants denied him the right to confront the witnesses against him.

It is well settled that the State is permitted to withhold the identity of a confidential informant from an accused. La. C.E. art. 514. Strong public policy | usupports the informer privilege since it seeks to further and protect the public’s interest in effective law enforcement by allowing citizens to'supply information to officials without fear of reprisal from those who are the focus of the information. Roviaro v. United States, 353 U.S. at 59, 77 S.Ct. 623; State v. Dotson, 260 La. 471, 256 So.2d at, 606 (La. 1971) (on rehearing); cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Degruy, 96-1463, p.6 (La. App. 4 Cir. 5/14/97), 696 So.2d 580. A confidential informant’s identity will be divulged only under exceptional circumstances for the prevention of an injustice. State v. Dotson, 256 So.2d at 606. The problem is one that calls for balancing the public interest in protecting the flow of information against an individual’s right to prepare his defense. Whether a proper balance renders non-disclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime .charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors. Roviaro, 353 U.S. at 62-64, 77 S.Ct. 623. The identity of an informer should be made known only when a defendant’s right to prepare his defense outweighs the need for protection-.of the flow of information. State v. Wolfe, 630 So.2d 872 (La. App. 4th Cir. 1993) citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

When an informant only supplies the information and does not participate in the transaction, disclosure is not required. State v. Davis, 411 So.2d 434, 436 (La. 1982).

ItfiOn the other hand, when the informant plays a crucial role in the transaction and the defense meets its burden of showing exceptional circumstances justifying disclosure, disclosure is required. Participation in the alleged criminal transaction is the hey, if the informant does not participate, the defendant cannot compel disclosure. State v. Degruy, 96-1463(La. App. 4 Cir. 5/14/97), 696 So.2d 580, citing State v. Quetant, 466 So.2d 567, 568 (La. App. 5 Cir. 1985) (emphasis supplied).

The trial judge’s determination of this issue is entitled to much discretion. State v. Dotson, 260 La. 471, 256 So.2d 594 (La. 1971). “The courts have placed a heavy burden on the accused to specify concrete reasons why he needs to know the identity of the informant.” State v. Davis, 411 So.2d at 436 (La. 1982).

In State v. Degruy, 96-1463 (La. App. 4 Cir. 5/14/97), 696 So.2d 580, the NOPD staged a controlled purchase of cocaine between its confidential informant and the defendant. From that purchase, the NOPD obtained a warrant to search the defendant’s residence and recovered a large amount of cocaine. The defendant was charged with possession of the cocaine, which was recovered during the search of his residence. He was not charged with the earlier controlled purchase which was used as the basis to obtain the search warrant. The defense filed a Motion to Disclose the Identity of the Cl,- which the trial court granted. The State sought supervisory review of that ruling. This Court denied the State’s writ. However, the Supreme Court granted the State’s writ and remanded the matter. After remand, this Court ruled in the State’s favor, finding that the trial judge erred when he compelled disclosure of the Cl’s identity because participation was the key factor and as the Cl did not participate in the offense upon which the search |1fiwarrant was based,, the defense was not entitled to disclosure. State v. Degruy, 696 So.2d at 584.

Similarly, in State v. Clark, 05-61 (La. App. 5 Cir. 6/28/05), 909 So.2d 1007, Detective Zemlik of the Gretna Police Department testified that a Cl advised him that a subject known, as “Shorty” was selling crack cocaine from a residence in Gretna, Louisiana. Detective Zemlik staged a controlled buy. From a concealed vantage point, Detective Zemlik observed the Cl engage in a hand-to-hand transaction with an individual at the front door of the house. When the Cl returned to Detective Zemlik, he had one off-white colored rock-like substance. Based on the controlled purchase, Detective Zemlik. applied for, and obtained, a search warrant for the residence. Detective Zemlik and other narcotics officers executed the warrant at about 5:10 a.m. on September 12, 2002. The search resulted in the seizure of forty-three rocks of crack cocaine. State v. Clark, 05-61, pp. 2-4; 909 So.2d at 1009-1010. Clark filed a Motion to Disclose the Identity of the Confidential Informant, arguing that because the informant played a crucial role in the transaction that led to his arrest, he was entitled to disclosure of the informant’s identity. The State countered, arguing that because the charge in the case was actually based on the evidence seized in the search of the apartment, and that because the informant played no part in the transaction which led to Clark’s arrest, Clark was not entitled to the informant’s identity. The trial court granted the motion; however, the Fifth Circuit reversed the trial court ruling:

.. .The Cl’s drug purchase supplied Zemlik with the probable cause he needed to obtain the search warrant. But the informant’s participation was not integral to the transaction (i.e., the search) that uncovered the cocaine that was the basis for the instant charge.
Clark failed to show that the C.I.’s testimony was crucial to a fair trial. Even if the Cl had testified that someone other than Clark sold him the cocaine on September 9, 2002, such testimony would have had little or no 117bearing on the outcome of the trial. Clark was not charged with distribution of cocaine on September 9, but with the possession of cocaine with intent to distribute on September 12, 2002.

Id., 2005-61, p. 14, 909 So.2d at 1015-1016.

In this case, the search warrant was signed by a magistrate on November 16, 2012. The application for the warrant set forth in pertinent part:

On Wednesday November 14, 2012, Detective Gabriel Favaroth ... met with a confidential informant, who advised [him] of a black male subject that goes by the name of “Brother.” The subject .. .would sell crack cocaine from his hotel room (LaQuinta Hotel), located at 12340 I—10 Service Road Room 408. The confidential informant stated to Detective Favaroth that unknown subjects would enter the hotel and proceed to the fourth floor. The subjects would then knock on Room 408 door, which would be immediately answered by .. .“Brother.” ... “Brother” would immediately exit room (408) and began to conversed (sic) with the unknown subjects. After conversing, the unknown subjects would give ... “Brother” an unknown amount of U.S. currency. [“Brother”] ... would then enter the room of 408 [of the hotel]. After a brief moment inside ... “Brother” would quickly return, giving the contraband to the buyer.
[“Brother”] is described as a black male, about 6’0 to 6’2" in height, heavy build, age range between 30 to 35 years old, mouth full of gold teeth in upper and lower part of mouth, with twist ham style. It should be noted that the confidential informant has gave (sic) reliable information in the past, which resulted in arrest and convictions.
The confidential informant also stated that the knowledge of ... “Brother” selling (crack cocaine) was obtained by being present and personally observing him selling “crack cocaine” from room 408 [of the hotel] ... in the past 72 hours. The confidential informant related that a purchase could be made from ... “Brother” if provided with the necessary funds. Therefore, Detective Fa-varoth secured an amount of two hundred dollars in U.S. currency from the major case narcotics funds [and] ... provided the C.I. with the above listed currency ...
Detective Favaroth then formulated a plan that would have the confidential informant make a controlled purchase from ... “Brother” at [the hotel] ... Room number 408 ... The plan also required that Detective Favaroth conduct a visual surveillance of the target location while the confidential informant approached the said location. Prior to making the purchase, Detective Favar-oth searched the confidential informant for contraband and/or valuables, to protect the integrity of the purchase and none were found. Detective Favaroth then provided the confidential informant with the above U.S. currency to make the controlled purchase.
Detective Favaroth then drove the confidential informant to the [hotel] ... The confidential informant exited the said vehicle and proceeded to Room number 408. Detective Favaroth also exited the unmarked vehicle and proceeded to the same location. The confidential informant along with | i8Petective Favar-oth rode the elevator to the fourth floor and exited. Detective Favaroth stood near the elevator and the hallway area while the C.I. walked to the hotel room 408. The Cl knocked on the door, which was immediately answered by ... “Brother.” The target subject was clad in all dark clothing. They both then conversed for a moment. After conversing, the Cl gave ... “Brother” the pre-re-corded currency. [“Brother”] ... accepted the U.S. currency and entered the hotel room 408 while the Cl waited in between the door and the hallway. After a brief moment inside, [“Brother”] ... came back to the front door and gave the Cl an object with his right hand. The Cl looked at the object before departing. [“Brother”] ... then went back into the room 408, closing the door. The Cl then returned to the vehicle. Detective Favaroth also returned to the unmarked vehicle and drove the C.I. out of the area.
Once inside the vehicle, the C.I. relinquished one clear piece of plastic containing three pieces of a white rock like substance believed to be crack cocaine to Detective Favaroth.
Detective Favaroth relocated the C.I. to a secure area to be released and searched, but no other contraband was found. Detective Favaroth also tested the contraband using NIK test kit “G”, which yielded a positive reaction for crack cocaine. Detective Favaroth relocated to central evidence and property where he deposited the evidence in the narcotics depository.
Detective Favaroth also conducted a computer check of the nick name of “Brother” which revealed a subject fitting that description, the name which was revealed was Mr. Tyrone Haney B/M 04/19/1974...

As the record in this case shows, the defendant was arrested on November 19, 2012, and charged on January 16, 2013, with possession with intent to distribute cocaine, possession of marijuana, second offense, and possession of drug paraphernalia.

As in the Clark and Degruy cases, the Cl in this case was not a participant in the crime for which the defendant was convicted. Although the Cl participated in the controlled buy on November 14, 2012, the defendant was not charged with that crime. The defendant was only charged with the crimes which occurred on November 16, 2012, the date on which the search warrant was executed.

As for the defendant’s claim he should have been provided with the identities of the informants of the three inei-dents testified to at trial—the instant case (possession with intent to distribute cocaine) and the two prior incidents | ^admitted as Prieur evidence—there is no indication in the record that any informant in those incidents was involved in the incident giving rise to the charges in those cases.

There has been no. showing of an abuse of the trial court’s discretion in not ordering disclosure of the informant’s identity. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 3

In a third assignment, the defendant alleges he was denied the right to present a defense because the trial court allowed the State to introduce evidence of crimes not contained in its Prieur notice. He maintains that admission of those unnoticed bad acts precluded investigation of the incidents, subpoenaing witnesses and conducting research ' on legal questions raised by the acts.

The Sixth and Fourteenth Amendments to the United States Constitution and Article 1, § 16 of the Louisiana Constitution guarantee a criminal defendant the meaningful opportunity to present a complete defense. State v. Griffin, 2015-0125 (La. App. 4 Cir. 9/16/15), 176 So.3d 561, 575, writ denied, 2015-1894 (La. 11/7/16), 208 So.3d 896, reconsideration not considered, 2015-1894 (La. 1/25/17), 215 So.3d 262.

The défendant' in this case has not identified the acts or crimes he complains were erroneously admitted without inclusion in the State’s Prieur notice; however, a review of the record indicates the State disclosed three prior incidents it sought to offer evidence of at trial: 1) an incident on August 23, 2009, identified by NOPD item # H-31495-09; 2) an incident on July 29, 2009, identified by NOPD item # G-40699-09; and 3) an incident on November 14, 2008, identified by NOPD item #K-16794-08.

At the trial of this matter, the State offered the testimony of Sergeant Rome, Detectives Dalferes and Burke as to the November 14, 2008, and July 29, 2009 12f)incidents. Moreover, the State produced proof of the defendant’s convictions from fingerprints taken from arrest records and certified pen packs pertaining to those two incidents. Likewise, with regard to the August 23, 2009, incident, the State proved the defendant’s conviction through fingerprints taken from that arrest and a certified pen pack of that conviction under Orleans Parish Criminal District Court case No. 491-160 (NOPD item # H-31495-09).

Although the proof' of the defendant’s prior conviction for possession of marijuana was not included in the Prieur notice, he cannot show any prejudice. The defendant’s prior conviction for possession of marijuana was clearly offered as the predicate to possession of marijuana, second conviction, with which the defendant had been charged. The defendant was aware that the State would prove the possession of marijuana, second conviction via the pri- or conviction because count 2 of the bill of information filed on January 16, 2013, included the prior conviction.

This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 4

In a fourth assignment, the defendant claims the trial court erred by denying his motion to suppress the evidence and statement. More particularly, the defendant complains the key to hotel room 408, the money and the marijuana in this case were illegally seized from his person without a warrant, rendering the evidence inadmissible at trial.

Trial courts are vested with great discretion when ruling on ,a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592, p. 5 (La. 9/9/04), 884 So.2d 1176, 1179 (citations 121 omitted); State v. Oliver, 99-1585, p. 4 (La. App. 4 Cir. 9/22/99), 752 So.2d 911, 914 (trial court vested with great discretion when ruling on a motion to suppress).

The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard and the district court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 2001-2199 (La. App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Accordingly, “on mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo,” Id. (citation omitted). “Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts.” Id. (citation omitted).

The trial court in this matter conducted a hearing on the motion to suppress on February 6, 2014. At the hearing, Detective Favaroth testified he had previously testified as an expert in the sale and distribution of narcotics. The detective recounted the November 19, 2012, sequence of events which led to the defendant’s arrest for distribution of cocaine. Detective Favaroth said he received information from an informant concerning the sale of narcotics from room 408 of the LaQuinta Inn in New Orleans East. He set up a controlled purchase between the informant and the defendant, known at that time as “Brother,” on November 14, 2012. Detective Favaroth watched the informant knock on the door to room 408 and engage the defendant in a hand-to-hand-transaction. The informant gave the contraband to Detective Favaroth. Pursuant to that transaction, Detective Favaroth obtained a search warrant for room 408. NOPD officers set up surveillance of the surrounding areas in order to locate the defendant. The defendant was stopped while driving his truck on the service road and transported 122⅜0 the hotel parking lot where he was given a copy of the search warrant for room 408. At that point, the defendant told the officers he had a key to room 408 and gave it to Detective Favaroth. Officers accessed the room, executed the search warrant and seized cocaine, scales, sandwich bags, a glass beaker and razorblades. At that'point, the defendant was placed under arrest, after which marijuana was found on his person during a search incident to the arrest.

As the record indicates, no evidence or statement was obtained from the defendant unconstitutionally. Although the defendant now argues he was detained “away from the site of the search warrant,” he was in a vehicle en route to the hotel, just moments from the location, so the officers were within their authority to detain him temporarily. See State v. Thompson, 2011-0915 (La. 5/8/12), 93 So.3d 553; State v. Gray, 2011-1356 (La. App. 4 Cir. 10/3/12), 101 So.3d 515, 521.

In addition, contrary to the defendant’s argument, he was not under arrest during the detention, consequently, his statement indicating he possessed the key to room 408 was given freely and voluntarily. Only after the cocaine and drug paraphernalia were located in the hotel room and probable cause for an arrest had been established was the defendant arrested. The money and marijuana found on the defendant were obtained from a valid search incident to arrest. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 5

By this assignment, the defendant complains he was unfairly prejudiced by the non-expert opinion testimony given by Detectives Burke and Favoroth.

J^gThe testimony of a lay witness, who is not testifying as an expert, in the form of opinions or inferences is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of a fact in issue. La. C.E. art. 701. It is well-settled that a law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. State v. Jackson, 2015-0809 (La. App. 4 Cir. 5/25/16), 193 So.3d 425, 437-438 reh’g denied (June 9, 2016), citing State v. Griffin, 14-251 p. 21 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 487.

A reviewing court must ask two questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from facts based upon the witness’ observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. See State v. McClure, 14-253 (La. App.5 Cir. 3/11/15), 169 So.3d 510, 521, writ denied 15-684 (La. 2/26/16), 187 So.3d 468.

The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. State v. Friday, 10-2309 (La. App. 1 Cir. 6/17/11); 73 So.3d 913, 922, writ denied, 11-1456 (La. 4/20/12); 85 So.3d 1258.

The defendant in this case objected to the detectives’ opinion testimony concerning the items recovered from the search of the hotel room and their usage. In particular, pursuant to the prosecutor’s- questioning, the detectives explained the tools for making and distributing crack cocaine— glass beaker, baking soda, razorblade, scales and plastic baggies. The detectives, each having more than | ^twenty-four years of service with the NOPD and at least twenty years- combined experience with the narcotics division and undercover operations, stated that their personal observation of the items confiscated in the hotel room, and their training and knowledge of narcotics and extensive interaction with confidential informants, led them to the conclusion the defendant was manufacturing crack cocaine in the hotel room and preparing it for distribution. Clearly, the detectives’ training, years of experience and personal observations discredit the defendant’s complaint concerning their qualifications to conclude the defendant possessed with intent to distribute crack cocaine.

This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 6

In his final assignment of error, the defendant complains of prosecutorial misconduct during closing arguments, during which the prosecutor referred to defense counsel as a liar and referenced facts not in evidence.

Generally, “prosecutors are allowed wide latitude in choosing closing argument tactics.” State v. Clark, 2012-0508, p. 92 (La. 12/19/16), 220 So.3d 583, reh’g denied (Mar. 13, 2017), citing State v. Frank, 99-0553, p. 26 (La. 5/22/07), 957 So.2d 724, 741.

The trial judge has broad discretion-in controlling the scope of closing arguments. Id., citing State v. Prestridge, 399 So.2d 564, 580 (La. 1981). The court will not reverse a conviction on the basis of improper closing argument unless it is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Id., citing State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190. See also United States v. Rodriguez, 43 F.3d 117, 124 (5th Cir.1995) (“prosecutorial misconduct must be so pronounced and persistent that it casts serious doubt upon the correctness of the jury’s verdict.”)

One portion of the State’s closing argument about which the defendant complains, is as follows:

Detective Favaroth’s not lying to you. Sergeant Rome’s not lying to you. Detective Moore’s not lying to you. Detective Burke’s not lying to you. Every person sitting at that table over there is lying straight to your face. And it’s almost insulting.

In State v. Dabney, 2015-0001(La. App. 4 Cir. 9/9/15), 176 So.3d 515, writ denied, 2015-1852 (La. 10/17/16), 208 So.3d 374, the prosecution branded defense counsel a liar. Although this Court found the prosecutor’s statement “crass”, it found no prejudicial error because in Dabney, as in this case, the trial court properly instructed the jurors prior to their deliberation that the attorneys’ arguments were not evidence.

Another portion of closing argument the defense objects to concerns the prosecution’s purported reference to a “kick back” scheme, which the defense contends there was no evidence of:

... I was trying to figure out why would Anastasia Brown come in herb and lie. And I thought back to something that Detective Favaroth mentioned while he was on the stand earlier that morning. He didn’t really run with it. He didn’t explain it a lot, and said, you know, during that investigation, and I’ve been doing this for about 25 years, investigating drug crimes, he said I think that [the defendant] who’s been selling drugs throughout the City of New Orleans since at least 2008, probably had somebody working for him, maybe kicking them a little bit of money to keep his name off the books, to keep him protected, to keep him clean.

The foregoing reference by the prosecution was prompted by information elicited by the defense during its cross examination of Detective Favaroth. 1 ^Defense counsel questioned Detective Favaroth if it was his testimony that the defendant chose to access the fourth floor of the LaQuinta Inn through the back door because the defendant knew the surveillance camera at that location was not operational. Detective Favaroth opined:

A. I think they probably had someone working at the hotel with [the defendant] because certain cameras were not working to go up to the fourth floor.
Q. Oh, he had somebody working with him in conspiracy with him?
A. I believe so.
Q. Do you have any idea who that could be?
A. No. I can’t pinpoint it, but I believe so, because certain cameras were not working going to that location. The rear door, they have a camera down there, wasn’t working. The camera that’s on the fourth floor wasn’t working. But like I said, when we looked at the monitors, I saw all the other cameras—I don’t know what cameras they were going to.

There is no indication the defense objected to the comment and it appears the prosecutor was simply commenting on the testimony elicited by the defense. Detective Favaroth expressed an opinion regarding matters of personal knowledge gained through training and experience in his field. In State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995), the Louisiana Supreme Court noted that “much credit should be accorded to the good sense and fair mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” This assignment has no merit.

^CONCLUSION

In the absence of a record of the conference(s) in which cause and peremptory challenges were decided and considering the court reporter’s attestation that said portion of the record is impossible to reconstruct, there is no way to determine the merit of the defendant’s claim he has been denied his constitutional right to complete judicial review on appeal. Accordingly, we set aside the defendant’s conviction and sentence and remand this matter for new trial.

CONVICTION AND SENTENCE VACATED; REMANDED

      . Detective later testified in rebuttal 'that anyone who testified that officers obtained a key to room 408 from Mr. Durand or spoke to Anastasia Brown would be lying as the defendant gave a key to room 408 to the officers.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      : La. C.E. art. 514 provides in pertinent part:
      Art. 514. Identity of informer
      A. General rule of privilege. The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in án investigation of a possible violation of a criminal law.
      B. Who may claim the privilege. The privilege may be claimed by' the prosecuting authority or an appropriate representative of the public entity to which the information was furnished.


source: Caselaw Access Project

author: Judge Terrel J. Broussard, Pro Tempore

license: Public Domain

text:
    Paul O. SCHWARZENBERGER, M.D. and Clinical Oncology Research Associates, L.L.C. v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER NEW ORLEANS, and The LSU Board of Supervisors
    NO. 2017-CA-0024
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 24, 2017

      Samantha P. Griffin, J. Dalton Courson, STONE PIGMAN WALTHER WITT-MANN L.L.C., 546 Carondelet Street, New Orleans, LA 70130-3588, COUNSEL FOR PLAINTIFFS/APPELLANTS, PAUL O. SCHWARZENBERGER, M.D. AND CLINICAL ONCOLOGY RESEARCH ASSOCIATES, L.L.C
    Katherine Bettie Muslow, Meredith Anne Cunningham, 433 Bolivar Street, Suite 820, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE, THE BOARD OF SUPERVISORS FOR LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Terrel J. Broussard, Pro Tempore)
   Judge Terrel J. Broussard, Pro Tempore

|,The appellants, Paul O. Schwarzenber-ger, M.D. and Clinical Oncology Research Associates, L.L.C, (“CORA”) seek this Court’s review and reversal of the trial court’s October 18, 2016 judgment granting summary judgment in favor of the appellees, Louisiana State University Health Sciences Center-New Orleans and the LSU Board of Supervisors (“LSU”) dismissing the appellants’ claims with prejudice. For the reasons herein, we affirm.

Facts and Procedural History

On July 15, 2009, the plaintiffs/appel-larits filed a petition for writ of mandamus, declaratory relief and damages or alternatively petition for injunctive relief against the defendants/appellees in Civil District Court for the Parish of Orleans.

The petition alleges that the appellees are liable for breach of contract and willfully failing to transfer funds to either of the appellants,

According to the petition, the appellant, Dr. Schwarzenberger, specializes in hematology, internal medicine, and clinical oncology. In 1995, the appellant began working for LSU Medical School as an assistant professor, and later became a tenured associate professor of medicine and associate professor of genetics. During |2his tenure at LSU, the appellant entered into separate agreements with three pharmaceutical companies, Ligand, GlaxoSmithKline and NovaRX, to lead clinical trials of cancer treatments on terminally ill cancer patients who had no other medical options. Each agreement is explained below.

In 2002, the GlaxoSmithKline agreement was entered into with LSU. According to the agreement, GlaxoSmithKline was to submit payments for services directly to LSU to pay for the study.

In 2003, LSU entered into two separate agreements for additional clinical studies with NovaRx and Ligand. NovaRx and Ligand sent money directly to LSU for these studies to be performed.

In 2004, while the above studies were ongoing, the appellant resigned from his full-time position at LSU and became part-time. At that time, LSU, as well as the pharmaceutical sponsors of the studies, made written requests that all of the appellant’s patients under the studies be transferred out of the LSU system. Consequently, on May 21, 2004, the appellant formed CORA, an entity for him to continue the clinical trials. Separate transfer agreements were entered into so that residual funds from the clinical trials would be transferred to CORA. The appellant alleges that during that time, and in an effort to keep his patients alive, he also worked under the auspices of Touro Infirmary New Orleans and then Providence Hospital in Mobile, Alabama. The appellant claims that his repeated attempts to get LSU to transfer funds to either him or CORA were to no avail.

On February 16, 2011, LSU answered the petition and filed a reconventional demand against the appellant alleging that he failed to properly manage financial | ¡¡matters associated with the clinical trials constituting a breach of the appellant’s employment agreement with LSU.

This appeal focuses on three separate motions for summary judgment filed by LSU.

First, LSU filed a motion for summary judgment on appellant’s contract claims. Next, LSU filed a motion for summary judgment on appellant’s claims regarding the Ligand trials, arguing a lack of justiciable controversy on the grounds of mootness. Lastly, LSU filed a motion for summary judgment on appellant’s claims for breach of contract and breach of fiduciary duty with respect to the GlaxoSmithKline clinical trials.

On August 13, 2015, the trial court held a contradictory hearing. At the hearing, the trial court heard arguments on LSU’s motion for summary judgment filed in opposition to the appellant’s injunctive and mandamus relief; both LSU’s and the appellant’s motion in limine to exclude the expert testimony of each party’s witnesses; and the three motions for summary judgment filed by LSU on July 28,2015.

A review of the transcript of the hearing held on October 18, 2016, shows that the testimony of the expert was lacking in methodology and scientific quality and could not assist the court in its deliberations. The trial court also excluded the expert deposition testimony of Holly Sharp that was offered by the appellant to demonstrate a loss of profit. As to LSU’s motions for summary judgment, in the' October 18, 2016 judgment reduced to writing, the trial court ruled:

IT IS ORDERED, ADJUDGED AND DECREED that LSU’s Motion for Summary Judgment on Plaintiffs’ Claims Regarding the Ligand 48/49 Trials Due to Lack of Justiciable Controversy on Grounds of Mootness is GRANTED and that LSU’s Motion for Summary Judgment on 14Plaintiffs’ Contract Claims is GRANTED. Accordingly, IT IS ORDERED that plaintiffs’ claims against LSU be and the same [sic] are hereby DISMISSED WITH Prejudice Pursuant to La. Code Civ. Proc. art. 1920...

This judgment is the subject of the instant appeal.

Daubert Challenge

The appellant argues the trial court erred in holding, as a matter of law, that his expert Holly Sharp, CPA, “could not testify.”

According to the appellant, Holly Sharp was retained as an expert CPA to offer her opinion regarding the monies CORA is allegedly due from the clinical trials; to substantiate whether .LSU owed CORA money; and to determine whether LSU’s auditors properly calculated the additional costs associated with the clinical trials. The overall contention of appellants on this issue is that the exclusion of the testimony of Holly Sharp was contrary to the pronouncements in Daubert v. Merell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (analysis below).

In addition to the arguments posited above, the appellant argues that the trial court created an arbitrary baseline in determining that Ms. Sharp had not performed the work necessary to qualify as an expert.

LSU maintains that the trial court did hot abuse its discretion in excluding Ms. Sharp’s testimony asserting that Louisiana courts look to federal case law for guidance as to Daubert. LSU cited Lee Valley Tools, Ltd. v. Indus. Blade Co., 288 F.R.D. 254, 266 (W.D.N.Y. 2013), wherein the court stated that “an expert witness is permitted to use assistants in formulating his expert opinion,” Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002), although an expert report that is merely a conduit for the opinion of a non-testifying expert must be excluded. Id. at 613.”

|fiThe general rule governing the admissibility of expert testimony in Louisiana courts is fdund in La. C.E. art. 702 which states that:" “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if four conditions are satisfied.” The first, and critical, inquiry is to determine if “[t]he expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” La. C.E. art. 702(1); see State v. Farrier, 14-0623, p. 7 (La. App. 4 Cir. 3/25/15), 162 So.3d 1233, 1239. The other three conditions pertinent to a Daubertr-Foret inquiry conducted by the trial judge as gatekeeper, are whether “...(2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert’ has reliably-applied the principles and methods to the facts of the case.” La. C.E. art. 702. In civil proceedings, the Daubert-Foret pretrial hearing is used “to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence.” La. C.C.P., art. 1425 F(l). The party demanding such a pretrial hearing and determination of the reliability of evidence which the opposing party intends to introduce into evidence at the trial “shall set forth sufficient allegations showing the necessity for these determinations by the court.” La. C.C.P. art. 1425 F(l) (emphasis added). Upon a timely filed and sufficiently alleged motion for a Daubert-Foret hearing, the court “shall” hold a contradictory hearing. La. C.C.P. art. 1425 F(2). “At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence.” Id.

| fiThus, in exercising her gatek-eeping function, a trial judge must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.’ ” Daubert, 509 U.S. at 592-593, 113 S.Ct. 2786. “Significantly, if the gatekeep-ing role is not properly executed, there is a risk that the expert evidence may be prejudicial or misleading. For this reason, trial judges must employ ‘a careful evaluation of the methodology surrounding the testimony and its conclusions.” Foret, 628 So.2d at 1122.

In the instant case, accounting and audit principles, means, and methods of the application to the facts of the alleged contract breach are relevant to the suit. In regard to the reliability of such expert opinion testimony, pertinent factors for the trial court to consider include: 1) the “testability” of the scientific theory or technique; 2) whether the theory or technique has been subjected to peer review and publication; 3) the- known or potential rate of error; and 4) whether the methodology is generally accepted in the scientific community. See Daubert, 509 U.S. at 594-595, 113 S.Ct. 2786; see also State v. Quatrevingt, 93-1644, p. 11 (La. 2/28/96), 670 So.2d 197, 204. It appears that the trial court relied on the three pronged test, in concluding to strike Ms. Sharp’s deposition testimony.

It is well-established that the trial court is afforded wide discretion in determining whether expert testimony should be admitted and who should not be qualified as an expert. See General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). A trial court’s decision to qualify or disqualify an expert will not be overturned absent an abuse of discretion. See Cheairs v. State ex rel. Dept. of Transp. & Dev., 03-0680, p. 6 (La. 12/3/03), 861 So.2d 536, 541. This court opined in Everhardt v. Louisiana Dept. of Transp. and Dev., 07-0981, p. 15 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048 that, “[wjhether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the sound discretion of the trial court.” The same precedent was reiterated in Jouve v. State Farm Fire and Cas. Co., 10-1522, p. 6 (La. App. 4 Cir. 8/17/11), 74 So.3d 220, 225, with the pronouncement that “[a] trial court’s decision to qualify an expert will not be overturned absent an abusé of discretion”.

The abuse-of-discretion standard is highly deferential to the trial judge’s determination under consideration. See LCR-M Ltd. P’ship v. Jim Hotard Prop., L.L.C., 13-0483, p. 9 (La. App. 4 Cir. 10/9/13), 126 So.3d 668, 675. Generally, a decision is considered an abuse if the trier of fact reaches a conclusion in a capricious or in an arbitrary manner. See Tugwell v. Plaquemines Parish Gov’t, 14-0657, p. 5 (La. App. 4 Cir. 11/19/14), 154 So.3d 695, 699. This Court also held that, “[a]rbitrary or capricious” means the absence of a rational basis for the action taken. See A.S. v. D.S., 14-1098, p. 17 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 257. Additionally, a court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. See Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 14-0843, p. 8 (La. App. 4 Cir. 12/17/14), 156 So.3d 1234, 1240. Boudreaux v. Bollinger Shipyard, 2015-1345 (La. App. 4 Cir. 6/22/16), 197 So.3d 761; § 11.3. Opinion testimony—Experts—Generally, 19 La. Civ. L. Treatise, Evidence And Proof § 11.3 (2d ed.).

In the case sub judice, the trial court did not abuse its discretion in striking the deposition testimony of Holly Sharp. At the contradictory hearing the, appellant failed to articulate; 1) the “testability” of the scientific theory or | «technique used to form an opinion; 2) whether the theory or technique had been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology was generally accepted in the scientific community. A review of the transcript of the hearing held on October 18, 2016, shows that the court determined that the testimony of the expert was lacking in methodology and scientific quality and could not assist the court in its deliberations. In her ruling, the trial court quoted Manning v. Crockett, No. 95 C 3117, 1999 WL 342715, at 3 (N.D. Ill. May 18, 1999), stating:

.. .preparing the expert’s opinion from whole cloth and then asking the expert to sign it if he or she wishes to adopt it conflicts with Rule 26(a)(2)(B)’s requirement that the expert ‘prepare’ the report. Preparation implies involvement other than perusing a report drafted by someone else and signing one’s name at the bottom to signify agreement. In other words, the assistance of counsel contemplated by Rule 26(a)(2)(B) is not synonymous with ghost-writing.

The trial court concluded that once Ms. Sharp was stricken as an expert, appellant was unable to prove damages. Faced with this determination, the appellant failed to proffer the excluded evidence. Therefore, it cannot be reviewed on appeal. He also failed to preserve his objection pursuant to La. Unif. R. Ct. App. 2-124

The record reveals that Ms. Sharp’s report did not comport with the Dauberb-Foret standard as it lacked a scientific basis and was void of pertinent methodology. The trial court properly performed its “gate-keeping” function and did not abuse its discretion in striking Ms. Sharp’s testimony.

^SUMMARY JUDGMENT ARGUMENTS

Contract Claims and Damages

The appellant asserts that the trial court erred in granting summary judgment as to his contract claims.

The appellant focuses his argument on LSU’s claim that he could not carry the burden of proving damages. The appellant maintains that LSU relied on its discovery requests wherein he sought identification of every expense incurred as a result of the clinical study. According to the appellant, LSU’s response was consistent with his testimony that he offered his services for free after he was no longer working with LSU. However, at the time of his testimony, the appellant had not calculated his uncompensated services. He still maintains that LSU was aware of his loss because LSU deducted expenses for his “Investigator fees”, which LSU submitted to the pharmaceutical companies. The appellant further argues that the trial court erred in striking the testimony of his expert witness, Holly Sharp, a certified accountant from LaPorte (discussed infra), who could have assisted in proving damages.

It is the appellant’s contention that LSU deprived him of compensation and that the trial court erred in not finding a dispute of material fact as to his alleged damages as a result of his contract claims.

Further, LSU maintains that two trial sponsors paid CORA over $140,000 and those funds were deposited directly in the appellant’s personal bank accounts, which gave rise to LSU’s separate claim of misappropriation of funds that was subsequently dismissed.

In a de novo review of this matter, this Court shall consider the evidence presented to the trial court, the admissibility of such evidence, and whether, after |insuch evidence is studied, a genuine issue of material fact remains. Portfolio Recovery Associates, LLC v. Johnson, 2012-1323, p. 4 (La. App. 4 Cir. 4/10/13), 113 So.3d 499, 502.

With its motion for summary judgment on the appellant’s claims, LSU attached the trial agreements for Ligand 48 and 49. The Ligand 48 agreement contains an effective date of January 2, 2003, between the Board of Supervisors of LSU, or otherwise the “Evaluator.” The agreement also contains eleven articles. Article number one outlines the statement of the work. Article number two indicates the period of performance from the January 2, 2003 date. Article number three names the appellant as the “Principal Investigator” under the direction of the “Evaluator”, such performance terminates- if the appellant becomes unavailable- and no acceptable successor can sponsor the clinical study. Article number four indicates that payment will be made to the “Evaluator” by the “Sponsor” (Ligand in this instance) in the amount-of $6,3.55.99 to be paid within twenty days of the initiation of the study and placed in an account by the “Evaluator.” The “Principal Investigator” can then draw from the account until the termination of the study, at which time any overpayments were to be returned to the “Sponsor.” LSU also attached the same agreement for the Ligand 49 clinical .study, which had an effective date of November 20, 2001, and allowed an initial $4,000 payment under Article number four.

LSU attached the clinical trial agreement between GlaxoSmithKline and No-vaRx. The agreement between GlaxoS-mithKline and LSU became effective on September 1, 2002. The agreement between NovaRx and LSU became effective on March 17, 2003. In both agreements, the appellant is named as the “Investigator” responsible for conducting the study. Each agreement provides detailed budgeting.

|nLSU provided the April 19, 2004 Letter of Assignment transferring the appellant to the part-time faculty of LSU’s Department of Genetics. The letter expresses that LSU does not expect the appellant to initiate any new clinical trials and indicates that any • inactive clinical trials will be closed immediately. LSU indicates that the appellant will transfer any remaining trial patients to another venue, and that his clinical trials will continue in accordance with LSU policies and regulations. The letter is signed by LSU employees: Bron-ya Keats, PhD, Professor and Head of the Department of Genetics; Charles V. Sanders, MD, Professor and Head of the Department of Medicine;. Larry H. Hollier, MD, Dean of the School of Medicine; and the appellant.

LSU attached excerpts from the March 30, 2015 deposition of the appellant. The appellant testified that he believed LSU breached contracts by demanding that the cancer patients he was assisting be transferred once he began his part-time status at LSU. The appellant admitted that CORA received approximately $35,000 for research from a clinical study named Am-gen prior to receiving the letter of reassignment. Most importantly, the appellant was questioned about the loss he claims in his petition:

Q. ... Are you contending that you lost money as a result of LSU’s actions or inactions in this case?
A. I could argue if I see a loss, a loss is—if I have something and it goes away and I lose it. Here I additional work [sic] that I did for free that was uncompensated.
Q. Okay
A. So it’s not a loss, I mean I could argue that I could have spent this time doing something for profit rather than doing it for free.
, 11aQ. Right but have you actually sat down and put pen to paper to figure out what that number is?
A. No.
⅜ ⅜ ⅜
Q. So when you talk about losses or that you have not qualified them, how about profits? Have you ever put pen to paper to figure out the profits of which you claim that you were deprived of as' a result of LSU’s actions or inactions in this .case?
A. No.

The Louisiana Secretary of State Records for Clinical Oncology Research were attached, as well as separate letters of assignment for GlaxoSmithKline, Ligand 48, and Ligand 49. LSU attached the appellant’s first supplemental and amended answers to interrogatories and responses to requests for production of documents.

Lastly, excerpts from the October 15, 2012 deposition testimony of Roy Clay were attached. Mr. Clay, in an attempt to determine the amount of damages, if any, reviewed a report consisting of three years of data involving thirteen patients and offered his findings. Specifically, the appellant avers that the trial court erred in granting summary judgment where disputed issues of material fact existed regarding his claims for damages.

We opine that first, in order to determine whether there is a dispute over damages, we review the contracts between the parties. “In general, ‘a contract, subject to interpretation on the four corners of the instrument without the necessity of extrinsic evidence, is interpreted as a matter of law.’ ” Vekic v. Popich, 2016-0508, pp. 5-6. (La. App. 4 Cir. 3/29/17), 215 So.3d 483, 486, quoting New Orleans Jazz & Heritage Found., Inc. v. Kirksey, 09-1433, p. 9 (La. App. 4.Cir. 5/26/10), 40 So.3d 394, 401 (citing Bartlett Constr. Co., Inc. v. St. Bernard Parish Council, 99-1186, p. 6 (La. App. 4 Cir. 5/31/00), 763 So.2d 94, 98).

In the instant case, the parties agree that there is no dispute as to the terms of the contracts. Essentially, each contract is between the “Sponsor”, the pharmaceutical company, and the “Evaluator”, LSU. The contracts then go on to name .the appellant as the “Principal Investigator.” Per the contracts, payments are made to the “Evaluator” by the “Sponsor” until or unless the contract is terminated. The terminations clauses state that the “Sponsor” can terminate the contract at any time and for any reason, or in two months with written reasons. The “Evaluator” can also terminate the contract if circumstances beyond the Evaluator’s control were to come into play. At that time, the “Evaluator” is to be reimbursed only for actual costs. Specifically, in the contract between LSU and' GlaxoSmithKlein, the termination clause states:

Upon notice of termination, Institution and Investigator shall use best efforts to revoke any financial obligations incurred and shall avoid incurring any additional costs in connection with the Study Agreement. Institution shall be compensated only for Study-related work actually performed or reimbursed only for expenses actually and reasonably incurred through the effective date of termination with GSK has agreed to pay as part of the Study under this Agreement.

Also, the letters of assignment specifically instructed the appellant how to proceed with - the remaining patients, and advised him not to take on any more patients.

Attached as evidence in support of its summary judgment, LSU presented audits of each study after the appellant left LSU and organized CORA. In an effort 114to rebut LSU’s audits, the appellant intended to rely on the testimony of CPA Holly Sharp to attest to the appellant’s damages alleged by breach of contract. The trial court struck Ms. Sharp’s testimony (discussed in assignment of error number 3) and therefore, the appellant was unable to substantiate damages. Therefore, the accuracy of the LSU audits was not traversed or contradicted. The appellant’s self-serving testimony, that he continued to treat and assist patients by using his personal funds was not supported with any evidence; nor does it create a genuine issue of material fact.

[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof rests with the mover.” La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden of proof at trial on the issue that is before the court,” then the mover is required “to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art, 966(D)(1).
An appellate court reviews the granting of a motion for summary judgment with the de novo standard of reviéw. Brunet v. Fullmer, 00-0644, p. 3 (La. App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. “Appellate courts use the ‘same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Weintraub v. State Farm Fire & Cas. Co., 08-0351, p. 2 (La. App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196-97, quoting Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

Filmore Parc Apartments II v. Foster, 2016-0568, pp.3-4 (La. App. 4 Cir. 2/15/17), 212 So.3d 621, 624.

The district court also properly discounted the self-serving and uncorroborated testimony of the appellant regarding loss of profits. The allowance of loss of profits as an element of damages is more liberal in actions purely in tort, as opposed to actions for breach of contract. See C.C. art. 2315. Shreveport Laundries v. Red Iron Drilling Co., 192 So. 895 (La. App. 2 Cir. 1939). In breach of contract cases, the loss of profits is recoverable as an element of damages, if they are proven with reasonable certainty. Mire v. Timmons, 155 So.2d 265 (La. App. 2 Cir. 1963); Jenkins v. Audubon Insurance Co., 110 So.2d 221 (La. App. 1 Cir. 1959). That is, the plaintiff must show that the loss of profits is more probable than not. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971). F & F Transfer, Inc. v. Tardo, 425 So.2d 874, 876 (La. App. 4 Cir. 1983).

A de novo review of the record reveals that the trial court did not err in granting LSU’s summary judgment as to the appellant’s contract claims.

Credibility

The appellant maintains that the trial court erred in weighing credibility for purposes of summary judgment.

The appellant stated that he presumed that the trial court relied on Freeman v. G.T.S., Corp., 363 So.2d 1247 (La. App. 4 Cir. 1978) and Wasco, Inc. v. Economic Dev. Unit, 461 So.2d 1055 (La. App. 4 Cir. 1984) in concluding that his testimony was insufficient to support a claim for damages.

In opposition, LSU argues that the appellant offered only descriptions of his activities without specifics about the patients he allegedly continued to assist and payments he did not receive. LSU further argues that the appellant failed to identify a contract between him and LSU, considering that the letters of assignment were between LSU and CORA. It is LSU’s contention that' the appellant’s personal losses have nothing to do with whether a genuine issue of material fact exists.

When there is a question of credibility as it relates to a summary judgment proceeding, this Court established in Williams v. Metro Home Health Care Agency, Inc., 2002-0534, p.4-5 (La. App. 4 Cir. 5/8/02), 817 So.2d 1224, 1227, that:

^Making an evaluation of credibility has no place in determining summary judgment; it is not the trial court’s function on motion for summary judgment to determine or even inquire into the merits of the issues raised. Rapp v. City of New Orleans, 95-1638 (La. App. 4 Cir. 9/18/96); 681 So.2d 433, writ denied 96-2925 (La. 1/24/97); 686 So.2d 868; Walker v. Kroop, 96-0618 (La. App. 4 Cir. 7/24/96); 678 So.2d 580. Deposition testimony may be used to support or oppose a motion for summary judgment, but it is not weighed. Leflore v. Coburn, 95-0690, 95-0249 La. App. 4 Cir. 12/28/96); 665 So.2d 1323, writ denied 96-0411 (La. 3/29/96); 670 So.2d 1234, writ not considered, 96-0453 (La. 3/29/96); 670 So.2d 1234.

Here the record is void of evidence that the trial court weighed the credibility of any witnesses. The record reveals that trial court correctly explored the material character of the facts presented in order to apply the law. For this reason, we find no merit to this assignment of error.

Mootness

Lastly, the appellant maintains that the trial court erred in granting LSU’s motion for summary judgment finding his Ligand claims moot, claiming he was denied the opportunity to challenge LSU’s audits.

“A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief.” Allums v. Allums, 2017-0021, p.3-4 (La. App. 4 Cir. 5/31/17), 221 So.3d 191, 2017 WL 2350945 (citing Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186, 1193). “A case may become moot for several reasons. Some examples are that: (1) there has been a change in the law, (2) the defendant paid the monies owed, (3) the wrongful behavior has passed and is not likely to recur, or (4) a party has died. Id. By the time Leeway filed its petition for intervention, the judgment had already been paid to Jonesfilm and the judicial mortgage had been satisfied thereby making the instant case, which Leeway sought to intervene in, moot.” Lions Gate Films, Inc. v. Jonesfilm, 2012-1452, p.5 (La. App. 4 Cir. 3/27/13), 113 So.3d 366, 369-70.

Here, the parties do not dispute that LSU paid Ligand the residual funds after the termination of the clinical studies. The appellant failed to offer supportive and reliable evidence to the trial court to support his claim, nor could he prove damages. Thus, no issues of material fact remain as to Ligand and LSU is entitled to judgment as a matter of law.

CONCLUSION

This Court finds that the trial court correctly granted LSU’s summary judgment as to the appellant’s contract claims and as to the mootness claims regarding Ligand, and properly dismissed the appellant’s claims against LSU with prejudice.

AFFIRMED

      . There are two Ligand trials referred to as Ligand 48 and Ligand 49.

      . A separate clinical trial that is not the subject of this appeal.

      . The record is void as to Mr. Clay’s occupation and whether he was offering his expertise in a certain field.

      . In the contract between LSU and GlaxoS-mithKline, GlaxoSmithKline is referred to as the "Institution.” In the contract between LSU and, NovaRx, NovaRx is referred to as the "Center”. However, all of the contracts refer to Dr. Schwarzenberger as the "Princi- . pal” or "Principal Investigator.”