author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Harold J. BROWN
    NO. 17-KA-420 17-KA-426
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Joshua K. Vanderhooft
    COUNSEL FOR DEFENDANT/APPELLANT, HAROLD J. BROWN, Jane L. Beebe
    DEFENDANT/APPELLANT, HAROLD J. BROWN, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
   CHEHARDY, C.J.

On appeal, Harold J. Brown, defendant herein, challenges the constitutionality of the police search of his automobile. For the following reasons, we affirm defendant's convictions; amend defendant's sentence on count one, and, affirm as amended; affirm the remainder of defendant's sentences; and remand for correction of the Uniform Commitment Order.

Facts and Procedural History

Because defendant's convictions were the result of guilty pleas, the facts surrounding this matter were adduced from the testimony and evidence presented at pre-trial and guilty plea proceedings. With respect to district court case number 15-2369, if the matter had proceeded to trial, the State would have proven beyond a reasonable doubt that, on March 24, 2015, defendant possessed heroin, marijuana, and cocaine in Jefferson Parish, with the intent to distribute those substances, in violation of La. R.S. 40:966(A) and 40:967(A), respectively. Further, the State would present evidence that defendant possessed a handgun after being previously convicted of eight counts of armed robbery, two counts of aggravated burglary, and one count of aggravated assault upon a peace officer. Lastly, the State would have proven beyond a reasonable doubt that defendant possessed a handgun while possessing marijuana in violation of La. R.S. 14:95(E). Moreover, with respect to district court case number 15-2370, the State would have proven that, on or about March 24, 2015, in Jefferson Parish, defendant violated La. R.S. 40:1023 by knowingly and intentionally possessing drug paraphernalia to wit: scales, syringes, and baggies.

On April 28, 2015, in district court case number 15-2369, the Jefferson Parish District Attorney filed a multi-count bill of information charging defendant, Harold J. Brown, with possession with intent to distribute heroin in violation of La. R.S. 40:966(A) ; possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) ; possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) ; possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 ; and illegal carrying of weapons in violation of La. R.S. 14:95(E). On that same date, in district court case number 15-2370, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of drug paraphernalia, in violation of La. R.S. 40:1023.

On December 10, 2015, the trial court heard defendant's motion to suppress evidence, which was denied on February 2, 2016. On March 29, 2016, this Court, in its writ denial, refused to disturb the ruling of the trial court and found that defendant had an adequate remedy on appeal. See State v. Brown , 16-131 (La. App. 5 Cir. 3/29/16) (unpublished writ disposition).

On April 6, 2016, defendant withdrew his former pleas of not guilty and entered pleas of guilty as charged on all counts of both bills of information, reserving his right to appeal adverse pre-trial rulings under State v. Crosby , 338 So.2d 584 (La. 1976). After the acceptance of his pleas in case number 15-2369, the trial court sentenced defendant as follows: for possession with intent to distribute heroin, to twenty years at hard labor with ten years to be served without the benefit of probation, parole, or suspension of sentence; for possession with intent to distribute marijuana, to twenty years at hard labor; for possession with intent to distribute cocaine, to twenty years at hard labor with two years to be served without the benefit of probation, parole, or suspension of sentence; for possession of a firearm by a convicted felon, to twenty years at hard labor with ten years to be served without the benefit of probation, parole, or suspension of sentence; and for illegal carrying of weapons, to ten years at hard labor with five years to be served without the benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently with each other and with any other sentence defendant was serving. In case number 15-2370, the trial court sentenced defendant to six months in parish prison with the sentence to run concurrently with the sentences in case number 15-2369 and with any other sentence defendant was serving.

Additionally, on April 6, 2016, the State filed a habitual offender bill of information in district court case number 15-2369, alleging that defendant was a second felony offender pursuant to La. R.S. 15:529.1, seeking to enhance the penalty for defendant's conviction of possession of a firearm by a convicted felon. Defendant stipulated to the habitual offender bill. The trial court vacated defendant's sentence for possession of a firearm by a convicted felon and imposed an enhanced sentence of twenty years at hard labor without the benefit of probation or suspension of sentence and with the first ten years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. Defendant's enhanced sentence was ordered to run concurrently with counts one through three and count five, the sentence in case number 15-2370, and any other sentence he was serving.

Thereafter, on April 13, 2017, defendant filed a Uniform Application for Post-Conviction Relief requesting an out-of-time appeal. On April 18, 2017, the trial court granted defendant an out-of-time appeal pursuant to State v. Counterman , 475 So.2d 336 (La. 1985) and dismissed his application for post-conviction relief without prejudice. On August 10, 2017, this Court consolidated appellate records 17-KA-420 and 17-KA-426 "for briefing and argument in this Court." This appeal follows.

Jurisdictional Note

This Court's appellate jurisdiction extends only to cases triable by a jury. La. Const. of 1974, Art. 5, § 10 ; La. C.Cr.P. art. 912.1 ; State v. Chess , 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287. Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess , supra .

In this case, defendant was charged and pled guilty to misdemeanor possession of drug paraphernalia, in violation of La. R.S. 40:1023, in district court case number 15-2370. At the time of the offense, La. R.S. 40:1025 provided that the offender shall be subjected "to a fine not in excess of five hundred dollars, or imprisonment of not more than six months, or both." Thus, defendant's conviction for possession of drug paraphernalia is a misdemeanor conviction not triable by a jury. The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. See La. C.Cr.P. art. 912.1(C)(1) ; State v. Trepagnier , 07-749 c/w 07-750 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied , 08-0784 (La. 10/24/08), 992 So.2d 1033.

According to this Court's En Banc policy regarding jurisdictional matters adopted on May 29, 2014, "if the majority of the panel determined that the matter was not appealable, the matter shall be dismissed, allowing the parties time to file a writ application." However, this Court noted that dismissal may not be warranted in "exceptional cases, especially when there are misdemeanor and felony convictions intertwined to the point that the interests of justice are better served by considering the matters together." See generally , State v. Jones , 12-640 c/w 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436 ; State v. Christophe , 12-82 (La. App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied , 12-2432 (La. 4/19/13), 111 So.3d 1029 ; State v. Trepagnier , supra .

In this case, we find that the instant matters are "exceptional cases ... intertwined to the point that the interests of justice are better served by considering the matters together." Accordingly, we will review all of defendant's convictions on appeal.

Law and Argument

On appeal, defendant assigns one counseled and one pro se assignment of error, which both contend that the trial court erred in failing to suppress the evidence that was illegally obtained. In his counseled assignment of error, defendant argues that the search of his vehicle was unconstitutional under the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution, and, thus, the evidence retrieved as a result of the search should be suppressed. Defendant contends that, at the time of his arrest, he did not give consent to search the vehicle's trunk or the backpack inside the trunk, nor was the search justified by one of the exceptions to the warrant requirement. Relying on Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), defendant avers that there were no exigent circumstances as the car was parked so the police could have requested a warrant or even a canine unit.

In his pro se assignment of error, defendant similarly argues that the evidence used to charge and convict him was illegally obtained as it falls under the "fruit of the poisonous tree doctrine." He argues that probable cause did not exist to search his vehicle so the search and seizure was improper, and, thus, the evidence is inadmissible. Defendant also asserts that his appellate counsel should not be allowed to withdraw as counsel of record, citing to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam ), and requests that this Court order his appellate attorney to specifically brief whether his conviction and sentence present any non-frivolous appealable issues.

The State responds that the trial court properly denied defendant's motion to suppress as there was sufficient probable cause for officers to conduct an immediate search of the trunk of the vehicle and the backpack inside the trunk under the "automobile" exception, "plain smell" exception, or the "public safety" exception. The State argues that the testimony at the suppression hearing established that the officer had personal knowledge that an overwhelming odor of marijuana was emanating from the trunk, and that defendant, a convicted felon, had possession of a stolen firearm, $992.00 in currency, and multiple bags of individually-packaged marijuana on his person.

At the suppression hearing, Detective Ashton Gibbs was the sole witness to testify. Detective Gibbs testified that he had been with the Gretna Police Department for eleven years and had been a detective for nine of those years. He provided that, in March of 2015, he was employed with the Criminal Investigation Division of the Gretna Police Department. One evening, Detective Gibbs was working a security detail at Jay's Place, a night club located at 1201 Burmaster Street. Detective Gibbs and another officer were walking along the shoulder of Burmaster Street where several patrons' cars were parked. He testified that, when he worked security details, he routinely patrolled the parking area and looked into vehicles.

As the officers passed by an Infiniti parallel parked on the shoulder of Burmaster Street, they detected "an overwhelming smell of marijuana" coming from the vehicle's trunk. Detective Gibbs stated that he sniffed the entire exterior of the vehicle, including the crevice of the vehicle's trunk to locate the smell. Detective Gibbs testified that the vehicle had dark tinted windows, which made him unsure whether it was occupied, so he shined his flashlight into the interior of the vehicle. When the interior of the vehicle was illuminated, Detective Gibbs observed a firearm on the driver's side floorboard. He and the other officers working the detail decided to maintain surveillance on the vehicle until the driver returned.

Detective Gibbs testified that, approximately fifty minutes later, he observed a man, later identified as Harold Brown, defendant-herein, walking towards the vehicle. Detective Gibbs watched as defendant approached the Infiniti, opened the driver's door with a key, entered the driver's side of the vehicle, then abruptly exited the vehicle, leaving the driver's door open. Detective Gibbs observed defendant walk across Burmaster Street to speak with two females, who were leaving the night club. Detective Gibbs and another officer approached the open driver's side door, found no other occupants inside the vehicle, but noticed that the firearm was missing from the floorboard.

Detective Gibbs stated that, within minutes, defendant came back to the vehicle, at which time Detective Gibbs detained defendant for investigation and conducted a pat down of defendant's outer clothing for safety. The officer assisting Detective Gibbs recovered the firearm from the back pocket of defendant's pants. When the officers conducted an "N.C.I.C." check of the firearm's serial number, they discovered that the firearm was reported stolen from the New Orleans Police Department. At that time, defendant was informed that he was under arrest for possession of a stolen firearm.

Detective Gibbs testified that he conducted a search incident to arrest of defendant's person and discovered multiple, small, individually-packaged, hand-tied, clear plastic bags of marijuana in defendant's right front pants pocket and $992.00 in currency. When Detective Gibbs ran a criminal records check on defendant, he learned that defendant was a convicted felon on probation for possession of heroin, cocaine, third offense possession of marijuana, and bail jumping.

Detective Gibbs testified that, based upon the smell coming from the trunk, he opened it. In the trunk, Detective Gibbs recovered a red drawstring backpack, which contained more small, individually-packaged, hand-tied clear plastic bags, as well as quantities of heroin and cocaine. Detective Gibbs also found a brown men's wallet, which contained defendant's Louisiana driver's license, "TWIC" card, Social Security card, Chase Bank debit card, and other identifying information. Further, the backpack also contained a box of clear, plastic sandwich bags, a digital scale, a razor blade, and some hypodermic needles. Detective Gibbs testified that he believed these items were related to the distribution of narcotics.

Detective Gibbs additionally testified that, inside of the vehicle, he discovered two cell phones and information linking the Infiniti to defendant. Detective Gibbs stated that, following the seizure of these items, he arrested defendant for possession with intent to distribute marijuana, heroin, and cocaine, possession of a stolen firearm, and being a convicted felon in possession of a firearm. Defendant did not make any statements to any of the officers involved in the investigation.

Detective Gibbs stated that he did not seek either consent to search the vehicle or a search warrant. On cross-examination, Detective Gibbs provided that he has secured hundreds of narcotic search warrants in the past and that a warrant could be obtained in a matter of hours, had he chosen to apply for one.

At the conclusion of the hearing, the State argued that Detective Gibbs had probable cause to arrest defendant upon smelling the marijuana emanating from the vehicle and upon learning defendant had retrieved a stolen firearm from the vehicle. The State argued that the officers' search of the trunk was based on probable cause and exigent circumstances. Defendant countered that Detective Gibbs' testimony did not establish exigent circumstances as the vehicle was not running and was unattended for a period of time. Thus, defendant concluded that the Infiniti was improperly searched and any objects derived from the search were fruit of the poisonous tree. In its denial of defendant's motion to suppress, the trial court stated that the evidence was not suppressible as it was discovered after the detective alleged that the officers had smelled marijuana as they passed the vehicle.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard , 06-361 (La. App. 5 Cir. 10/31/06), 945 So.2d 764, 764-65. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Id.

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. La. C.Cr.P. art. 703(D) ; State v. Joseph , 02-717 (La. App. 5 Cir. 6/27/03), 850 So.2d 1049, 1052, writ denied , 04-2404 (La. 6/17/05), 904 So.2d 686. The trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id.

In Pennsylvania v. Labron , 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam ), the United States Supreme Court held that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle. In Maryland v. Dyson , 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam ), the Supreme Court explained that the "automobile" exception has no separate exigency requirement. This Court has also recognized that the "automobile" exception does not have an independent exigency requirement, and if probable cause exists for the search of the vehicle that is sufficient. The exigency is supplied by the inherent mobility of the vehicle and the citizen's lesser expectation of privacy. State v. Mitchell , 10-334 (La. App. 5 Cir. 10/26/10), 52 So.3d 155, 160 (citing Joseph , 850 So.2d at 1054 ).

In addition, the Louisiana Supreme Court has recognized that there is no constitutional distinction between seizing and holding a car before presenting the probable cause issue to a magistrate and immediately searching the vehicle without a warrant. Mitchell , supra ; Joseph , supra . Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Tatum , 466 So.2d 29, 31 (La. 1985)

Probable cause means "a fair probability that contraband ... will be found." Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) ; Mitchell , supra . Whether probable cause exists must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Jones , 09-688 (La. App. 5 Cir. 2/9/10), 33 So.3d 306, 317.

Additionally, courts, including this Court, have consistently held that the odor of marijuana provided the officers with sufficient probable cause to conduct warrantless searches of vehicles. State v. Turner , 12-855 (La. App. 5 Cir. 5/16/13), 118 So.3d 1186, 1193 ; State v. Allen , 10-1016 (La. 5/7/10), 55 So.3d 756 (per curiam ); Mitchell , supra .

The scope of the warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted, but rather, is defined by the object of the search and the place in which there is probable cause to believe it may be found. Tatum , 466 So.2d at 31 (citing U.S. v. Ross , 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ). Once probable cause for the search of a vehicle exists, a police officer has the authority to search those places in the vehicle in which there is probable cause to believe the object searched for may be found. California v. Acevedo , 500 U.S. 565, 570, 111 S.Ct. 1982, 1986, 114 L.Ed.2d 619 (1991) (holding that the police do not need a warrant to search a closed container found within a lawfully stopped vehicle when the officers have probable cause for the search); State v. Holmes , 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 281, writ denied , 09-0816 (La. 1/8/10), 24 So.3d 857.

In Joseph , supra, at 1051-54, the defendant argued that the officers unlawfully searched the interior and trunk of the vehicle because no exigent circumstances existed to trigger the "automobile" exception since the defendant was already arrested and placed in the back of the police unit at the time the search was conducted.

There, this Court held that once probable cause for the search of the vehicle exists, the officer has the authority to search those places in the vehicle where there is probable cause to believe the object searched for may be found. This Court reasoned that since the officer had probable cause to believe the defendant's vehicle contained drugs and drug paraphernalia following a canine sniff and the seizure of narcotics inside the defendant's jacket located in the vehicle, a warrantless search of the trunk of the vehicle and the bag contained therein for contraband was constitutionally sanctioned.

Here, we find that, once Detective Gibbs detected "the overwhelming smell of marijuana" coming from the trunk under the "plain smell" exception and observed defendant approach and enter the vehicle, he had probable cause to conduct a warrantless search of the vehicle under the "automobile" exception. Detective Gibbs observed defendant open the door of the vehicle with a key upon his return, and thus, the vehicle was readily moveable, and Detective Gibbs also testified that this transpired in only a few minutes time. In addition to the odor of marijuana emanating from the trunk, Detective Gibbs had observed the firearm on the floorboard of the vehicle and subsequently noticed it was missing upon defendant's return and departure from the vehicle. Therefore, Detective Gibbs could infer that defendant possessed a firearm while marijuana was located inside defendant's vehicle. We find that this situation constituted exigent circumstances, and Detective Gibbs was not required to obtain a warrant to conduct a search of the vehicle under the "automobile" exception.

Furthermore, Detective Gibbs' testimony indicates that he had probable cause to believe that marijuana was located in the trunk since he had placed his nose along the trunk's crevice to confirm the source of the odor. During the search incident to defendant's arrest for possession of a stolen firearm, the officers discovered individually-packaged marijuana in defendant's right front pants pocket. Once Detective Gibbs opened the trunk and saw the backpack, he had the authority to search inside the backpack for marijuana, as he had probable cause to believe it was located somewhere inside the trunk.

Given the ready mobility of the vehicle and defendant's reduced expectation of privacy, we find that probable cause existed to search the entire vehicle for the marijuana, including the trunk and the backpack located inside the trunk. See Joseph , supra ; Jackson , supra . Upon discovery of the marijuana, Detective Gibbs found the heroin, cocaine, clear plastic sandwich bags, digital scale, a razor blade, and hypodermic needles. Therefore, we find that the evidence found in the trunk and backpack was properly seized.

In brief, appellate counsel relies on Gant , supra , as support for the argument that the search was unlawful. In Gant , supra , the United States Supreme Court upheld the search of a vehicle incident to a recent occupant's arrest if the arrestee is within reaching distance to the vehicle at the time of search. Moreover, Gant , 556 U.S. at 343, 129 S.Ct. at 1719, allows for the search of the vehicle if there is reason to believe the vehicle contains evidence of the offense of the arrest. Thus, even under Gant, supra, the search that revealed the evidence would not be improper.

Therefore, we find that the trial court did not abuse its discretion in holding that Detective Gibbs was justified in searching defendant's vehicle pursuant to the automobile exception to the warrant requirement as he had probable cause to believe the trunk contained marijuana. For these reasons, we find that both assignments of error lack merit.

Errors patent

As is our routine practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). We find that the following errors require correction.

Statutory Restrictions

According to the sentencing transcript, defendant received a sentence for his conviction of possession with intent to distribute heroin (count one) of twenty years at hard labor with ten years to be served without the benefit of probation, parole, or suspension of sentence. The minute entry/commitment and the UCO also reflect this sentence. However, La. R.S. 40:966(A) does not provide any restriction on parole. See State v. Gayden , 14-813 (La. App. 5 Cir. 2/11/15), 168 So.3d 766, 768 ; State v. Allen , 03-192 (La. App. 4 Cir. 5/28/03), 849 So.2d 82, 85.

In cases in which a sentencing error by the trial court does not involve the omission of a restrictive term specified by the legislature as part of the sentence but the imposition of limits beyond what the legislature has authorized in the sentencing statute, this Court has corrected the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence "at any time." State v. Sanders , 04-17 (La. 5/14/04), 876 So.2d 42 (per curiam ); Gayden , supra .

Accordingly, we amend the sentence on count one to delete the restriction on parole and remand this matter for the trial court to transmit the original of the corrected State of Louisiana Uniform Commitment Order (UCO) to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department.

Inconsistent Uniform Commitment Order (UCO)

The record contains a single UCO for both the underlying guilty plea and the habitual offender proceeding. Our review of this UCO reveals several inconsistencies with the transcript. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).

First, the UCO fails to reflect that count four was enhanced, which should be corrected. Further, regarding court four, the Special Comments section of the UCO states that "10 years of the sentence to ber[sic ] served without benefit fo[sic ] parole, probtion[sic ] or suspension of sentence." The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1"are those called for in the reference statute." State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983 (citing State v. Bruins , 407 So.2d 685, 687 (La. 1981) ).

At the time of the offense, La. R.S. 14:95.1(B) required an offender to be "imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence." Therefore, we find that La. R.S. 15:529.1(G) and La. R.S. 14:95.1(B) required that defendant's entire twenty-year enhanced sentence be imposed without benefit of parole, probation, or suspension of sentence. State v. Williams , 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075-76, writ denied , 13-0109 (La. 6/21/13), 118 So.3d 406. Thus, defendant received an illegally lenient sentence. However, the trial court's failure to state this requirement at sentencing need not be corrected on remand because under State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790, 799 and La. R.S. 15:301.1(A), the "without benefits" provision is self-activating. See State v. Williams , 16-417 (La. App. 5 Cir. 8/30/17), 227 So.3d 371, 396. However, the UCO should reflect the correct ineligibility for benefits for defendant's enhanced sentence.

Accordingly, we remand this matter for the correction of the UCO in these aspects and order the trial court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ; State v. Roland , 06-244 (La. 9/15/06), 937 So.2d 846 (per curiam).

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AMENDED AND AFFIRMED AS AMENDED; REMAINING SENTENCES AFFIRMED; AND REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      On March 29, 2016, the State amended the bill of information in district court case number 15-2369 to reflect defendant's prior felony convictions for the charge of felon in possession of a firearm.

      We note that defendant's request that his counsel should not be allowed to withdraw is unfounded. First, appellate counsel has filed a brief assigning as error the exact issue that defendant challenges. Further, counsel has not filed a motion to withdraw and does not assert that defendant's cases contain no non-frivolous issues. This argument merits no consideration.

      Here, defendant previously sought review of the denial of his motion to suppress with this Court, which was denied. State v. Brown , 16-131 (La. App. 5 Cir. 3/29/16) (unpublished writ disposition). Under the doctrine of "law of the case," an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Falcon , 13-849 (La. App. 5 Cir. 3/12/14), 138 So.3d 79, 87-88, writ denied , 14-0769 (La. 11/14/14), 152 So.3d 877 ; State v. Caulfield , 10-769 (La. App. 5 Cir. 5/24/11), 67 So.3d 600, 607, writ denied , 11-1395 (La. 3/30/12), 85 So.3d 107. The law of the case doctrine is discretionary and the denial of a supervisory writ application does not bar reconsideration of an issue on appeal, nor does it prevent the panel from reaching a different conclusion on the issue. Id. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Id. Upon review, we find that, as this Court did not have the benefit of the transcript of the suppression hearing to consider, we will address the merits of defendant's arguments. Compare State v. Louis , 05-141 (La. App. 5 Cir. 7/26/05), 910 So.2d 464, 467 ("Contrary to defendant's assertions, there is no new evidence to warrant reconsideration as the transcript from the motion to suppress hearing dated October 15, 2003 was attached to the state's writ application and considered by this Court prior to its decision").

      In State v. Hernandez , 408 So.2d 911, 914 (La. 1981), cert. denied , 459 U.S. 840, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982), the Louisiana Supreme Court stated that it has not, for purposes of the "automobile" exception of the warrant requirement, distinguished between a vehicle stopped while in motion and then searched and a vehicle parked in a public place accessible to persons who might either move it or remove evidence from the vehicle.

      The "plain smell" exception is an extension of the "plain view" exception. See, State v. Gray , 13-1326 (La. 6/28/13), 122 So.3d 531 (per curiam ) (based upon the "plain smell" doctrine, when officers approach the defendant in a public place, the officers were within their constitutional bounds to search a backpack and its contents after the officers detected the smell of marijuana emanating from the backpack); State v. Townsend , 16-630 (La. App. 5 Cir. 11/9/16) (unpublished writ disposition), writ denied , 16-2269 (La. 2/3/17), 215 So.3d 693 (under the "plain smell" exception, the officer, in a public place, had probable cause to arrest the defendant where he smelled a "heavy" odor of marijuana within one or two feet of the defendant's person).


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Albert COX
    NO. 17-KA-508
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Andrea F. Long, Rachel L. Africk, Douglas E. Rushton
    COUNSEL FOR DEFENDANT/APPELLANT, ALBERT COX, Bruce G. Whittaker
    DEFENDANT/APPELLANT, ALBERT COX, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

Defendant, Albert Cox, appeals his convictions and sentences for second degree murder and possession of a firearm by a convicted felon. Defense counsel has filed an appellate brief challenging evidentiary rulings by the trial court. In addition, defendant has filed a pro se supplemental brief asserting that the evidence was insufficient to support his conviction for second degree murder, that the form of the jury verdict was improper, and that the trial court failed to comply with the sentencing guidelines set forth in La. C.Cr.P. art. 894.1. We have considered the arguments presented in these briefs, and finding them to be without merit, we affirm defendant's convictions and sentences.

PROCEDURAL HISTORY

On January 14, 2016, a Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of La. R.S. 14:30.1 (count one), and with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count two). Defendant pled not guilty to the charges at his arraignment on January 15, 2016. On May 4, 2016, defendant filed a motion to appoint a sanity commission, and after a hearing on June 22, 2016, the trial court found defendant competent to stand trial.

The matter initially proceeded to trial in December of 2016; however, at the conclusion of the proceedings, the jury was unable to reach a verdict, and a mistrial was declared. Trial commenced again before a twelve-person jury on April 10, 2017. After considering the evidence presented, the jury, on April 12, 2017, found defendant guilty as charged. Defendant thereafter filed a motion for acquittal notwithstanding the verdict and a motion for new trial. On April 19, 2017, the trial court denied these motions, and after delays were waived, sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on count one and to fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on count two, to run consecutively. Defendant now appeals.

FACTS

This case stems from the shooting of Cornell Woods that occurred in October of 2015 in a neighborhood in Kenner known as "Susan Park." At trial, Leroy Cage, a very good friend of the victim, recounted the events leading up to the shooting.

According to Mr. Cage, on October 7, 2015, he and Mr. Woods were "hanging out" after work in their neighborhood as they routinely did. As they were sitting in Mr. Woods' truck in front of Mr. Cage's house on Tupelo Street, defendant approached Mr. Woods on the driver's side of the truck, pointed his finger at him, and referred to Mr. Woods as a "bitch." Mr. Woods and Mr. Cage exited the truck, at which point Mr. Woods called defendant a "bitch," and defendant told Mr. Woods, "Whenever I walk down, I'm going to pistol whip you." Defendant then walked off in the direction of 27th Street towards his house on Jasper Street. Mr. Cage tried to deescalate the situation, telling Mr. Woods not to worry about "that fool," and they parted ways.

Shortly thereafter, as Mr. Cage was walking his dog in the neighborhood, he saw defendant, whom he knew from the neighborhood as "Wayne," walking down the street. Mr. Cage greeted defendant, but defendant ignored him and kept walking. Mr. Cage noticed that defendant, who had earlier been wearing a white t-shirt and blue shorts, was now dressed all in black and kept one hand in his pocket as he headed in the direction of Mr. Woods' house.

Mr. Cage then telephoned Mr. Woods to let him know defendant was heading his way; however, despite the earlier incident, Mr. Woods expressed that he was not "worried about that fool." After Mr. Cage got off the phone with Mr. Woods, he walked into the street and saw defendant, who was about three and a half blocks away, cross to the middle of the street by Mr. Woods' house and start shooting. At trial, Mr. Cage explained that he could not see anyone's faces at that point, but he heard four shots and could see the fire from the gun. Mr. Cage called 9-1-1, took his dog back to his house, told his wife that "Wayne just shot Cornell," and then got into his vehicle and drove to Mr. Woods' house.

In the meantime, officers from the Kenner Police Department responded to the scene. Upon his arrival, Detective Devin Diedling observed the victim lying face up, breathing sporadically, with an apparent gunshot wound to his chest. Mr. Woods was transported to the hospital where he later died from his injuries. During the course of their investigation, officers spoke to Mr. Cage about the information he had regarding the incident. As a result of this information, Detective Vincent Miranti, the lead detective in this case, compiled a photographic lineup and showed it to Mr. Cage, who positively identified defendant as the individual he knew as "Wayne."

Following this positive identification, Detective Miranti applied for a search warrant for defendant's house. However, before he got the chance to execute the warrant, he was informed that relatives of defendant had called to provide information regarding the case. Detective Miranti spoke with Laquittia Davis and Keokuk Davis, cousins of defendant. Laquittia told Detective Miranti, and subsequently testified at trial, that defendant called her on October 8, 2015, and told her that he "shot someone," which she was able to establish was Mr. Woods. Keokuk stated that Laquittia called him after speaking with defendant, which led him to call defendant. He questioned defendant, asking if what he told Laquittia was true, to which defendant affirmatively responded. Rene Cox, another cousin of defendant, went to the Kenner Police Department and provided information to Sergeant Jeff Adams. According to Ms. Cox, defendant had also called her and told her that he had killed someone.

Based on the information obtained through the course of the investigation, Detective Miranti secured an arrest warrant for defendant. On October 8, 2015, after being located by the U.S. Marshals in Baton Rouge at the bus station, defendant was arrested and was subsequently transported to the Jefferson Parish Correctional Center.

COUNSELED ASSIGNMENTS OF ERROR

Exclusion of Evidence Regarding Defendant's Mental State (Assignment of Error Number One)

In his first assignment of error, defendant contends that his rights to confrontation and to present a defense were violated by the trial court's erroneous ruling that prohibited the introduction of evidence regarding his mental limitations at the time of his purported confessions to family members.

Prior to the first trial, the State filed a motion in limine to exclude evidence of insanity or mental defect pursuant to La. C.Cr.P. art. 651. In the motion, the State argued that evidence of defendant's mental status or alleged mental defect was inadmissible because defendant pled not guilty and did not place his sanity at issue through a formal plea of not guilty by reason of insanity. At the November 17, 2016 hearing on the motion, defense counsel responded that she should be allowed to cross-examine witnesses regarding defendant's mental capacity. She specifically asserted that she did not intend to present evidence of defendant's mental limitations in an attempt to negate any specific element of the offenses or to show diminished capacity. Rather, defense counsel maintained that she wanted to introduce the evidence of defendant's mental limitations in order to show bias against him on the part of some of the witnesses who were family members. In addition, defense counsel asserted that evidence of defendant's mental capacity would demonstrate that the manner in which he communicated his statements to family members would reveal that he is not a "normal communicator." After hearing arguments of counsel, the trial court ruled as follows:

I will say this: I think we're all in agreement on what the law provides. And I think we're all in agreement that you are allowed to conduct cross-examination. The problem is simply this: It's the question that you present to a witness to determine whether they are biased or prejudiced and whether that is an appropriate question. So, what I am going to do is hold this open, and when you are ready to ask those questions, you approach the Bench and you ask to get clearance from the Court before you do it.

Prior to the start of defendant's second trial, defense counsel reurged her opposition to the State's motion in limine , arguing that it has become "even more pertinent that the defense be able to ask a few questions of the witnesses, his family members that know him, regarding his ability to read and write, about his vocabulary, and essentially his low intellectual functioning in order to combat the State's evidence that he is communicating inculpatory statements." The trial court ruled: "Based upon the arguments of counsel and the fact that no additional briefing has been submitted to the Court, nor any additional evidence to substantiate the argument of the defense, the Court's previous ruling remains in effect, and it is not admissible and prohibited."

Defendant now challenges this ruling. He specifically contends that the trial court's exclusion of evidence concerning his mental state at the time of the purported confessions to family members under the guise of La. C.Cr.P. art. 651 denied him his constitutional rights to confrontation and to present a defense.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. However, this right does not require a trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Lirette , 11-1167 (La. App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied , 12-1694 (La. 2/22/13), 108 So.3d 763.

The Sixth Amendment of the United States Constitution also guarantees an accused in a criminal prosecution the right to confront the witnesses against him. The Confrontation Clause of the Louisiana Constitution specifically and expressly guarantees the accused the right "to confront and cross-examine the witnesses against him." La. Const. Art. I, § 16. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Cross-examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. State v. Robinson , 01-273 (La. 5/17/02), 817 So.2d 1131, 1135. For the reasons that follow, we find that defendant's constitutional rights to present a defense and to confront and cross-examine witnesses were not violated by the trial court's evidentiary ruling relating to his mental state at the time of his statements to family members.

Clearly, pursuant to La. C.Cr.P. art. 651, when a defendant is tried upon a plea of "not guilty," evidence of insanity or mental defect at the time of the offense shall not be admissible. State v. Necaise , 466 So.2d 660, 664 (La. App. 5th Cir. 1985). In his appellate brief, defendant acknowledges the prohibition of evidence of mental defect pursuant to this article. However, he asserts that he is not attempting to introduce evidence of his mental deficiencies at the time of the offense, but rather is trying to show his mental state at the time of his statements to his cousins in order to allow the jury to better weigh the inculpatory statements. Defendant reasons that since Article 651 specifies "at the time of the offense," it necessarily implies that evidence of insanity or mental defect at times other than "at the time of the offense" is not prohibited. Therefore, he contends that the trial court erred in using Article 651 to exclude evidence relating to his mental functioning at the time of his inculpatory statements to his cousins.

We first note that we do not necessarily agree with defendant's assessment that the trial court used Article 651 to exclude this evidence. Rather, from the exchange at the hearing on the State's motion in limine , it appears that the trial court excluded this evidence on the basis of relevancy. In particular, when addressing defendant's arguments at the hearing, the trial court noted a clear distinction between using this evidence to show bias as opposed to using it to obtain the witnesses' personal impressions of defendant's alleged mental defect. The trial court commented that the witnesses' personal impressions of defendant's mental defect was not "relevant at all," and that it could be appropriate to show bias or prejudice, but "to get their mental impression of him is something completely different."

Relevant evidence is defined in La. C.E. art. 401 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." All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible. La. C.E. art. 402. However, 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. La. C.E. art. 403. The trial court is accorded great discretion in evidentiary rulings, and absent a clear abuse of that discretion, rulings regarding relevancy and admissibility of evidence will not be disturbed on appeal. State v. Hicks , 16-462 (La. App. 5 Cir. 2/8/17), 213 So.3d 458, 465, writ denied , 17-445 (La. 11/13/17), --- So.3d ----, 2017 WL 5563209.

Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime. For that reason, such evidence is not relevant to the issue of a defendant's guilt or innocence. Moreover, evidence of a mental disease or defect affecting a defendant at the time of an offense is inadmissible, whether it is an organically caused mental condition, or a psychologically or emotionally induced mental condition. State v. Wise , 13-247 (La. App. 5 Cir. 11/19/13), 128 So.3d 1220, 1225, writ denied , 14-253 (La. 9/12/14), 147 So.3d 703.

In the present case, defendant did not intend to introduce evidence of his mental deficiencies at the time of his statements to his relatives to show diminished capacity or to negate an element of the offenses. Rather, defendant maintained that he wanted to cross-examine certain witnesses about his mental state to show bias or prejudice against him on the part of his relatives, to show that he is not a "normal communicator" and thus combat the State's evidence that defendant communicated inculpatory statements, and to allow the jury to better weigh the inculpatory statements heard by them. Regardless of the reasons defendant intended to introduce this evidence or the basis for the trial court's evidentiary ruling, we find that the trial court did not abuse its discretion by limiting the cross-examination of these witnesses with regards to defendant's mental limitations at the time of his statements to them.

When the trial court excludes evidence, such as witness testimony, error may not be predicated upon a ruling unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by counsel. La. C.E. art. 103. This Court has consistently held that when a defendant does not make known the substance of the excluded evidence for the purpose of consideration by the trial and appellate court, the alleged error is not preserved for review on appeal. State v. Thompson , 12-409 (La. App. 5 Cir. 12/11/12), 106 So.3d 1102, 1109, writ denied , 13-111 (La. 8/30/13), 120 So.3d 258.

In the present case, defendant has not shown that the trial court's exclusion of evidence relating to his alleged mental limitations has affected a substantial right because he has made no showing of how the excluded evidence was relevant and material to the defense. Defendant made only general allegations that his mental deficiencies were relevant to show bias or prejudice on the part of witnesses or to attack their credibility relating to his incriminating statements to them. Defendant did not specify the substance of the evidence that he planned to introduce, nor did he proffer the questions that he wanted to present on cross-examination. We further note that defendant presented no evidence to support his allegations regarding his limited mental abilities.

Moreover, as noted by the State in its appellate brief, defendant was afforded an opportunity on cross-examination to inquire about the circumstances of the calls and the witnesses' perceptions of his state during his calls. On direct examination, Laquittia testified that on the morning of October 8, 2015, she received a phone call from defendant that lasted about fifteen minutes. Laquittia stated that defendant sounded sober during their telephone conversation although he informed her that he was "getting high." In response to questioning by defense counsel on cross-examination, Laquittia reiterated that defendant told her that he was "getting high" and "smoking rocks and getting loaded." Further, Laquittia acknowledged that defendant previously struggled with a drug problem and previously "got loaded a lot." However, when asked, Laquittia maintained that defendant was in the right state of mind as he was talking to her on the phone. On re-direct examination, Laquittia responded that defendant was coherent when he was talking to her. In addition, Ms. Cox, who spoke with defendant on the evening of October 8, 2015, testified on cross-examination that she was aware of defendant's previous drug problem but could not tell whether he was intoxicated during their phone conversation. When asked about defendant's speech, Ms. Cox replied, "I can't say he was slurred. I don't know." Thus, defense counsel was permitted to question these witnesses about the circumstances surrounding their phone calls with defendant.

Based on the foregoing reasons, and in light of the great discretion afforded a trial court in evidentiary rulings, we find no merit to the arguments presented by defendant in this assigned error and specifically find that defendant's constitutional rights to present a defense and to confront and cross-examine witnesses were not violated by the trial court's exclusion of evidence relating to defendant's mental limitations at the time of his incriminating statements to his relatives.

Introduction of Defendant's Prior Felony Convictions (Assignment of Error Number Two)

In his second assigned error, defendant contends that the trial court erred in allowing the State to introduce evidence of his prior felony convictions in order to establish his status as a convicted felon for purposes of La. R.S. 14:95.1.

In the present case, defendant was charged with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. In the indictment, the State alleged that defendant had previously been convicted, under case number 07-1389 of the 24th Judicial District Court, of distribution of cocaine, in violation of La. R.S. 40:967(A), and possession with intent to distribute marijuana, in violation of La. R.S. 40:966(A), and under case number 12-2873 of the 24th Judicial District Court, of possession of cocaine, in violation of La. R.S. 40:967(C).

Prior to trial, defendant filed a motion in limine seeking to exclude evidence of these prior convictions as unduly prejudicial and offering to stipulate that he had a prior felony conviction to satisfy one of the elements of his charge of possession of a firearm by a convicted felon. In the alternative, defendant alleged that the State should be limited to introduction of evidence of only one conviction. The trial judge denied defendant's motion and allowed the introduction of these felony convictions at trial. Defendant now challenges this ruling and asserts that since he offered to stipulate to his status as a felon, the evidence was irrelevant and prejudicial, and further served only to cast him "in the worst possible light."

In State v. Ball , 99-428 (La. 11/30/99), 756 So.2d 275, a prosecution for possession of a firearm by a convicted felon, the Louisiana Supreme Court held that the State could introduce evidence of the name and nature of the defendant's prior conviction of simple burglary of an inhabited dwelling, even though the defendant had offered to stipulate that he had been convicted of a prior felony. The court reasoned that proof of one of the enumerated felonies is an essential element of the crime proscribed by La. R.S. 14:95.1, and that the State is entitled to prove its case by evidence of its own choice. Further, the State cannot be robbed of the moral force of its case merely because a stipulation is offered, and it does not have to accept defendant's stipulation in lieu of presenting evidence. State v. Ball , 756 So.2d at 280.

Likewise, in the present case, proof of a prior specifically enumerated felony conviction is an essential element under La. R.S. 14:95.1, and thus, the State was permitted to introduce evidence relating to defendant's prior conviction, despite the fact that defendant had offered to stipulate that he had been convicted of a prior felony.

We now turn our attention to defendant's argument that the State should be limited to introduction of evidence of only one conviction. In State v. Sanders , 357 So.2d 492, 494 (La. 1978), the Louisiana Supreme Court held that the use of more than one prior conviction is permissible as proof of an essential element of the crime charged, stating as follows:

Evidence of both of defendant's previous felony convictions was admissible at trial as proof of an element of the crime charged and the manner in which the present offense was committed, proof of either prior conviction being sufficient to support defendant's conviction for the present offense. Hence, the trial judge properly permitted introduction in evidence of both of defendant's previous felony convictions.

In State v. Washington , 00-1542 (La. App. 5 Cir. 2/14/01), 782 So.2d 639, writ denied , 01-940 (La. 2/8/02), 807 So.2d 859, the defendant was charged with being a felon in possession of a firearm based on two predicate felony convictions. He filed a motion in limine seeking to limit the State's proof to one felony conviction, which was denied by the trial court. On appeal, the defendant argued that proof of more than one felony conviction was unduly prejudicial. This Court, citing Sanders , held that the trial court's denial of the motion in limine was proper. Washington , 782 So.2d at 644-45.

Accordingly, in light of this jurisprudence, we find no error in the trial court's denial of defendant's motion in limine , in which he sought to exclude evidence of his prior convictions in light of his offer to stipulate to his status as a convicted felon.

PRO SE ASSIGNMENTS OF ERROR

Sufficiency of the Evidence (Pro Se Assignments of Error Numbers One and Two)

In his pro se supplemental brief, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. He specifically contends that the State failed to prove that the shooting was not an accident and that he had the specific intent to kill or inflict great bodily harm on Mr. Woods. Defendant also contends that the trial court erred in denying his motions for acquittal notwithstanding the verdict and new trial, which were based on insufficient evidence.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Joseph , 16-349 (La. App. 5 Cir. 12/14/16), 208 So.3d 1036, 1042-43, writ denied , 17-77 (La. 4/7/17), 218 So.3d 109.

When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." This is not a separate test from the Jackson standard but rather provides a helpful basis for determining the existence of reasonable doubt. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten , 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied , 99-2057 (La. 1/14/00), 753 So.2d 208.

Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Spears , 05-964 (La. 4/4/06), 929 So.2d 1219, 1224. Specific intent may be inferred from the circumstances and from the defendant's actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim's injuries. State v. Gant , 06-232 (La. App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied , 06-2529 (La. 5/4/07), 956 So.2d 599.

A specific intent to kill may be inferred from the intentional use of a deadly weapon such as a knife or gun. State v. Cochran , 09-85 (La. App. 5 Cir. 6/23/09), 19 So.3d 497, 508, writ denied , 09-1742 (La. 3/26/10), 29 So.3d 1249. The act of aiming a lethal weapon and discharging it in the victim's direction supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Gant , 942 So.2d at 1111.

On appeal, defendant claims that the State failed to prove that he had the specific intent to kill or to inflict great bodily harm on Mr. Woods. At trial, the State presented the testimony of Mr. Cage who testified that on October 7, 2015, as he and Mr. Woods were sitting in Mr. Woods' truck in front of Mr. Cage's house, defendant approached Mr. Woods, pointed his finger at him, and referred to Mr. Woods as a "bitch." Mr. Woods and Mr. Cage then exited the truck, at which point Mr. Woods called defendant a "bitch," and defendant told Mr. Woods, "Whenever I walk down, I'm going to pistol whip you." After this incident, defendant walked off in the direction of his house, and Mr. Woods went home. Shortly thereafter, Mr. Cage saw defendant walking towards Mr. Woods' home with one hand in his pocket. Mr. Cage saw defendant cross to the middle of the street and start shooting in the direction of Mr. Woods' house.

In addition, defendant's relatives, Mr. Davis, Ms. Davis, and Ms. Cox, all testified regarding defendant's inculpatory statements made to them regarding the shooting. Further, the evidence showed that U.S. Marshals arrested defendant in Baton Rouge at the bus station.

Based on the foregoing, we conclude that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant's conviction for second degree murder. Therefore, the trial court did not abuse its discretion in denying defendant's motions for new trial and for acquittal notwithstanding the verdict, which were based on the sufficiency of the evidence.

Failure to Comply with La. C.Cr.P. art. 811 (Pro Se Assignment of Error Number Three)

In his next pro se assignment of error, defendant contends that the trial court failed to comply with the provisions of La. C.Cr.P. art. 811 regarding the receipt and recordation of the jury verdict, thereby violating his Sixth and Fourteenth Amendment rights under the United States Constitution.

La. C.Cr.P. art. 811 provides for the receipt and recordation of the verdict as follows:

If the verdict is correct in form and responsive to the indictment, the court shall order the clerk to receive the verdict, to read it to the jury, and to ask: "Is that your verdict?" If the jury answer "Yes," the court shall order the clerk to record the verdict and shall discharge the jury.

In his pro se brief, defendant claims that no verdict is contained in the record, and further claims that the record fails to reflect that the verdict of the jury was delivered to the judge in open court or that the court ordered the clerk to receive and record the verdict in accordance with the statutory requirements. Defendant's assertions are not supported by the record.

The transcript reflects that when the jury returned to the courtroom after deliberations, the trial court asked the foreperson of the jury whether a verdict had been reached. After the foreperson replied in the affirmative, the trial court asked her to hand the verdict to the bailiff and thereafter asked the clerk to publish the verdict. The transcript reflects that the clerk then published the verdict as follows:

Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana, Case Number 15-6462, State of Louisiana versus Albert Cox.
Verdict, Count 1. "We, the jury, find the defendant guilty of Count 1, second degree murder, Gretna, Louisiana, this 12th day of April, 2017." Signed by the foreperson, Melissa Tatman.
Verdict, Count 2. "We, the jury, find the defendant guilty of Count 2, possession of a firearm by a convicted felon, Gretna, Louisiana, this 12th day of April, 2017." Signed by the foreperson, Melissa Tatman.

Defense counsel requested polling of the jury, which revealed a unanimous verdict. The court thereafter stated: "The verdict is proper to form and to number. The verdict of the jury shall be the judgment of the Court."

In addition to the transcript, the minute entry reflects the following:

At 1:24 p.m. the jury returned with a verdict. The verdict returned-GUILTY as charged as to Count 1 and 2-signed Melissa Tatman, foreperson. The verdict was declared legal and ordered recorded. The jury was discharged.

Lastly, a written verdict form is contained in the record, which shows that defendant was found guilty of second degree murder and possession of a firearm by a convicted felon. The verdict form is dated, signed by the foreperson, and contained in the record.

As the record clearly reflects that the verdict was in compliance with the statutory requirements for receipt and recordation, we find no merit to defendant's arguments in this assigned error.

Failure to Comply with La. C.Cr.P. art. 894.1 (Pro Se Assignment of Error Number Four)

In this final pro se assignment of error, defendant argues that the trial court failed to comply with the sentencing guidelines set forth in La. C.Cr.P. art. 894.1. Specifically, defendant claims that the trial court failed to consider his age, family ties, marital status, health, employment record, prior criminal record, seriousness of offense, or likelihood of rehabilitation when it imposed a mandatory life sentence for second degree murder and a fifteen-year sentence for possession of a firearm by a convicted felon, to run consecutively.

In the present case, defendant filed a written motion to reconsider sentence alleging that "[t]he sentence is constitutionally excessive" and that "[t]he statute under which the defendant was sentenced calls for an unconstitutional mandatory minimum." However, defendant did not raise the issue of the trial judge's failure to consider the sentencing guidelines set forth in La. C.Cr.P. art. 894.1, and he is now precluded from raising this particular issue on appeal. La. C.Cr.P. art. 881.1 ; State v. Hunter , 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800. Accordingly, our review of defendant's sentences is limited to the issue of whether they are unconstitutionally excessive. State v. Bonilla , 15-529 (La. App. 5 Cir. 2/24/16), 186 So.3d 1242, 1261, writ denied , 16-567 (La. 5/2/16), 206 So.3d 881, cert. denied , --- U.S. ----, 137 S.Ct. 239, 196 L.Ed.2d 183 (2016).

The Eighth Amendment of the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. 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. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622. When imposing sentences, a trial judge has broad discretion in imposing a sentence within statutory limits, and a reviewing court may not set aside a sentence in absence of manifest abuse of discretion. State v. Bonilla , 186 So.3d at 1261.

Defendant's life sentence for his conviction of second degree murder is mandatory under La. R.S. 14:30.1. A mandatory minimum sentence is presumed constitutional. State v. Royal , 03-439 (La. App. 5 Cir. 9/30/03), 857 So.2d 1167, 1174, writ denied , 03-3172 (La. 3/19/04), 869 So.2d 849. Nevertheless, even though defendant received the mandatory minimum sentence, that sentence may still be reviewed for unconstitutional excessiveness. State v. Bonilla , 186 So.3d at 1262. To rebut the presumption of constitutionality, the defendant must show that: "[h]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case." State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676 ; State v. Royal , 857 So.2d at 1174.

Where a defendant failed to present any evidence or make any argument regarding a downward departure from the mandatory minimum sentence at his sentencing hearing, this Court has found that the defendant failed to carry his burden and concluded that his sentence was not excessive. State v. Hughes , 14-487 (La. App. 5 Cir. 11/25/14), 165 So.3d 978, 996, writ denied , 14-2683 (La. 10/9/15), 178 So.3d 1001 ; State v. Royal , 857 So.2d at 1174.

In this case, defendant did not present any evidence or make any argument regarding a downward departure from the mandatory minimum sentence at his sentencing hearing. Accordingly, defendant has failed to rebut the presumption of constitutionality of the mandatory life sentence, and as a result, we conclude that his sentence is not unconstitutionally excessive.

We now turn our attention to defendant's fifteen-year sentence for his conviction of possession of a firearm by a convicted felon. The sentencing range for this offense is imprisonment at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:95.1(B). Based on our review of the circumstances of this case as well as sentences imposed in similar cases, we cannot say that defendant's mid-range sentence of fifteen years is unconstitutionally excessive. We particularly note that this Court has upheld sentences of fifteen years imposed on defendants convicted of violating La. R.S. 14:95.1. See State v. James , 13-666 (La. App. 5 Cir. 2/12/14), 136 So.3d 113, 117-18, and State v. Caffrey , 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 204-05, writ denied , 09-1305 (La. 2/5/10), 27 So.3d 297.

Accordingly, we find that the sentences imposed on defendant in this case are not unconstitutionally excessive.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent and have found no errors that require corrective action.

DECREE

Accordingly, for the reasons set forth herein, we affirm defendant's convictions and sentences for second degree murder and possession of a firearm by a convicted felon.

AFFIRMED

      Mr. Cage testified that he knew defendant "all his life," and that he and defendant are friends although they do not "hang out" together.

      Dr. Dana Troxclair performed the autopsy on Mr. Woods. She testified that the cause of death was a gunshot wound to his chest. She opined that it was a distant gunshot, meaning the shooter was more than three feet away from the victim, based on the lack of stippling or soot around the wound.

      Sergeant George Hoffman with the Kenner Police Department executed the search warrant on defendant's home and seized two black t-shirts; however, nothing else of evidentiary value was found.

      Phone records were admitted into evidence that corroborate the testimony of Mr. Davis, Ms. Davis, and Ms. Cox, in that they spoke with defendant on the phone on October 8, 2015.

      The Louisiana Code of Evidence permits a witness to be cross-examined on any matter relevant in the case, including credibility. La. C.E. art. 611(B). Indeed, this Court recognizes that impeaching a witness for bias or interest and exposing a witness' motivation in testifying are proper functions of cross-examination. See State v. Micelotti , 07-808 (La. App. 5 Cir. 4/15/08), 984 So.2d 847, 854, writ denied , 08-950 (La. 12/12/08), 997 So.2d 559.

      It is noted that defendant's arguments regarding the purposes for which he wanted to use this evidence changed throughout the course of these proceedings.

      Although defendant does not focus on the issue of bias on appeal, we note that Ms. Cox acknowledged on cross-examination that she and defendant did not always get along.

      In order to convict a person of being a felon in possession of a firearm, the State must prove: 1) the defendant possessed the firearm; 2) the defendant had a prior conviction for an enumerated felony; 3) the defendant possessed the firearm within ten years of the prior conviction; and 4) the defendant had the general intent to commit the offense. State v. Alexander , 12-807 (La. App. 5 Cir. 5/16/13), 118 So.3d 1138, 1148, writ denied , 13-1454 (La. 1/10/14), 130 So.3d 320.

      Defendant filed both a motion for acquittal notwithstanding the verdict and a motion for new trial in the district court, challenging the sufficiency of the evidence used to convict him. The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. With regards to the motion for new trial, this Court has recognized that the denial of a motion for new trial based on the verdict being contrary to the law and evidence is not subject to review on appeal; however, both the Louisiana Supreme Court and this Court have still addressed sufficiency claims under these circumstances. State v. Bazley , 09-358 (La. App. 5 Cir. 1/11/11), 60 So.3d 7, 18-19, writ denied , 11-282 (La. 6/17/11), 63 So.3d 1039.

      Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Gant , 942 So.2d at 1111.

      In State v. Lovick , 00-1833 (La. App. 5 Cir. 5/16/01), 788 So.2d 565, 573, writ denied , 01-1836 (La. 5/10/02), 815 So.2d 833, this Court noted: "Failing to articulate reasons for the sentence as set forth in La. C.Cr.P. art. 894.1, when imposing a mandatory life sentence is not error. The court has no discretion in imposing a mandatory life sentence and therefore setting forth the factors considered in imposing sentence would be an exercise in futility."


author: Judge Regina Bartholomew Woods

text:
    NEW ORLEANS PRIVATE PATROL SERVICE, INC. v. CORPORATE CONNECTION, INC.
    NO. 2017-CA-0746
    Court of Appeal of Louisiana, Fourth Circuit.
    REVERSED AND REMANDED March 21, 2018
    John W. Waters, Jr., Benjamin R. McDonald, Gregory J. McDonald, BIENVENU FOSTER RYAN & O'BANNON, LLC, 1010 Common Street, Suite 2200, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    Temple A. Stephens, COMEAUX, STEPHENS & GRACE, One Lakeway Center, Suite 1060, 3900 North Causeway Boulevard, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods )
   Judge Regina Bartholomew Woods

Appellant, New Orleans Private Patrol Services, Inc. ("NOPP"), appeals a June 16, 2017 judgment rendered by the First City Court for the Parish of Orleans ("trial court"), which granted summary judgment in favor of Appellee, Corporate Connections, Inc. ("CCI"). For the reasons that follow, we reverse the trial court's ruling and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

NOPP, in need of a sales manager, entered into a contractual agreement with CCI on January 19, 2016, to provide "recruitment and staffing services" to fill the position. CCI asserted that it "would select and screen job candidates and submit those candidates to NOPP for positions that NOPP was [sic] seeking to fill." According to NOPP, the contractual agreement had two (2) components. First, CCI was responsible for recruiting and recommending candidates to NOPP. NOPP asserts that although CCI's services were not specified in writing, NOPP "understood" that CCI was to "pre-screen[ ] potential candidates to determine their qualifications, and [conduct] a personal interview ... to determine the candidate's skill level and suitability." Second, CCI's written "90 Day Replacement Guarantee Only" provision stated that "should the placed employee be let go or choose to leave the client company's employ within ninety (90) days, [CCI] will replace the employee at no additional cost" to NOPP. In compensation for its services, CCI was to receive ten percent (10%) of the placed-employee's first year salary.

On February 15, 2016, CCI presented Mr. Sean Donelon ("Mr. Donelon") to NOPP in consideration for the sales manager position. According to CCI, they selected Mr. Donelon as a candidate and prepared to perform a background check. While his background check was pending, NOPP interviewed Mr. Donelon twice and ultimately hired him-ten days before the background and reference checks were completed. According to NOPP, it hired Mr. Donelon, unaware of the fact that the background and reference checks were incomplete. However, CCI disputed this claim and asserted that NOPP was fully aware of the incomplete background and reference checks when it interviewed and ultimately hired Mr. Donelon.

NOPP asserted that CCI first requested Mr. Donelon's references on February 29, 2016, three (3) days after NOPP offered him the position. According to NOPP, CCI completed Mr. Donelon's reference check on March 2, 2016, and received the results of his criminal background check on March 3, 2016. CCI reported that its review showed no criminal record, no issues with his Social Security history, and no involvement in civil lawsuits. CCI asserted that it searched on both Facebook and Google, which produced no challenges to Mr. Donelon's "professional ability or background." CCI further asserted that it contacted the professional references who were provided by Mr. Donelon; all three (3) gave "favorable recommendation[s]." As a result of the aforementioned, CCI generated an invoice for its services, dated March 7, 2016; accordingly, NOPP timely remitted payment to CCI in the amount of $3,600.00, which was the amount invoiced.

On March 7, 2016, Mr. Donelon began working at NOPP and, according to NOPP, he began displaying "strange behavior." In an affidavit, NOPP's secretary-treasurer, Karen Lorenz ("Lorenz"), stated that Mr. Donelon inquired about obtaining a gun, which is never provided to sales managers. Lorenz further stated that she observed "visible signs that Donelon was impaired while working." As a result, Lorenz recommended that he be terminated from his employment with NOPP.

In addition to Lorenz, Marie Stroud ("Stroud"), NOPP's executive assistant, stated in an affidavit that she observed Mr. Donelon's unusual behavior which "included constant pacing, 'blanking out,' and attending staffing meetings while visibly impaired." Subsequent to Mr. Donelon's termination on May 12, 2016, NOPP discovered handcuffs and a badge in his desk; NOPP suggested that Mr. Donelon retrieved these items from the supply closet without permission, because NOPP never supplied him with these items. Lorenz discovered that Mr. Donelon had sent text messages from his company cellular phone to his girlfriend claiming that he had responded to a shooting as part of his duties at NOPP, which was untrue. Lorenz also discovered that he had used NOPP's computers to search for and purchase pills online. NOPP asserted that Stroud discovered straws inside Mr. Donelon's desk, which had been "cut and contained powered drug residue."

Further, Stroud searched Mr. Donelon's LinkedIn and Facebook profiles, and discovered that the professional references he had provided to CCI were his friends who no longer worked at the same companies where they were employed along with Mr. Donelon or had not been his supervisors.

On May 12, 2016, NOPP notified CCI that NOPP had terminated Mr. Donelon's employment and sought to enforce CCI's "90-Day Replacement Guarantee." CCI presented NOPP with a candidate, whom NOPP rejected. After an email exchange between NOPP and CCI regarding Mr. Donelon's placement and termination, CCI terminated its contractual agreement with NOPP. CCI offered to refund NOPP 75% of its fee. Dissatisfied with the lack of a replacement candidate and wanting a complete refund, NOPP filed a petition for damages against CCI for breach of contract, in which NOPP claimed that CCI breached its contractual obligation by "failing to adequately screen Mr. Donelon and verify his background and references." CCI contended that Mr. Donelon's behavior during his employment with NOPP and his lack of suitability is not related to CCI's obligations under its contract with NOPP.

Ultimately, CCI filed for and was granted summary judgment, which dismissed, with prejudice, the petition of NOPP.

DISCUSSION

NOPP asserts that the trial court erred in granting CCI's motion for summary judgment because genuine issues of material fact exist as to whether CCI breached its contract with NOPP. Specifically, NOPP asserts that a breach of contract occurred between the two parties when CCI failed to adequately screen and investigate Mr. Donelon, as well as failed to make a reasonable attempt to find and to provide a replacement employee to NOPP after Mr. Donelon's departure.

Standard of Review

In Alexander v. Hancock Bank , this Court enunciated the standard for reviewing a trial court's decision regarding a motion for summary judgment pursuant to the 2016 amendment to La. C.C.P. art. 966, as follows:

An appellate court conducts a de novo review, applying the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Brown v. Amar Oil Co. , 2011-1631, p. 2 (La. App. 1 Cir. 11/8/12), 110 So.3d 1089, 1090 (citing Sanders v. Ashland Oil, Inc. , 96-1751, p. 6 (La. App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035 ). A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Collins v. Randall, 2002-0209, p. 3 (La. App. 1 Cir. 12/20/02), 836 So.2d 352, 354. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. King v. Allen Court Apartments II , 2015-0858, p. 3 (La. App. 1 Cir. 12/23/15), 185 So.3d 835, 837, writ denied , 2016-0148 (La. 3/14/16), 189 So.3d 1069. This procedure is favored and shall be construed to accomplish these ends. Id. ; see also La. C.C.P. art. 966 A(2).
The initial burden of proof rests on the moving party. La. C.C.P. art. 966 D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary
judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather, to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. King , 2015-0858 at p. 3, 185 So.3d at 838. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. It is only after the motion has been made and properly supported that the burden shifts to the non-moving party. Brown , 2011-1631 at p. 3, 110 So.3d at 1090-91 ; Pugh v. St. Tammany Parish School Bd. , 2007-1856, p. 3 (La. App. 1 Cir. 8/21/08), 994 So.2d 95, 98.
A genuine issue is a triable issue. Brown , 2011-1631, p. 3, 110 So.3d at 1090-91. Jones v. Stewart , 2016-0329, p. 7 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 389, writs denied , 2016-1962, 20161967 (La. 12/16/16), 211 So.3d 1169. More precisely, an issue is genuine if reasonable persons could disagree. Id. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. A fact is material when its existence or non-existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Id. ; King v. Illinois Nat. Ins. Co. , 08-149, p. 6 (La. 4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of substantive law applicable to the case. Brown , 2011-1631 at p. 3, 110 So.3d at 1091 ; Hall v. Our Lady of the Lake R.M.C. , 2006-1425, p. 9 (La. App. 1 Cir. 6/20/07), 968 So.2d 179, 185.
In order to determine whether the trial court's grant of summary judgment was proper, this court must look to the applicable substantive law.

Alexander v. Hancock Bank , 2016-0662, pp. 2-4 (La. App. 4 Cir. 2/8/17), 212 So.3d 713, 715-16.

To determine whether the trial court erred in granting summary judgment in favor of CCI, this Court must examine the underlying substantive law. Here, NOPP argued that CCI breached its contractual obligation to NOPP based on three (3) different failures, to wit: failing to adequately screen and investigate Mr. Donelon before presenting him to NOPP as a suitable candidate; failing to provide a replacement employee at no additional cost to NOPP pursuant to the "90-Day Replacement Guarantee Only" provision; and failing to make a reasonable attempt to provide a replacement employee pursuant to the "90-Day Replacement Guarantee Only" provision.

This Court has stated that "[t]he essential elements of a breach of contract claim are (1) the obligor's undertaking an obligation to perform, (2) the obligor failed to perform the obligation (the breach), and (3) the failure to perform resulted in damages to the obligee." Favrot v. Favrot , 2010-0986, pp. 14-15 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1108-09 ; See 1436 Jackson Joint Venture v. World Constr. Co., Inc., 499 So.2d 426, 427 (La. App. 4th Cir.1986).

The first element of a breach of contract claim requires that the parties have a contractual relationship. Here, it is undisputed that NOPP and CCI entered into a "Direct Hire" recruitment contract on January 19, 2016.

The second element of a breach of contract claim is triggered by a breach of contract or the obligor's failure to perform. Here, NOPP argued that CCI breached the contract when it failed to properly screen Mr. Donelon, failed to make a reasonable attempt at finding a suitable replacement employee and ultimately, failed to find a suitable replacement employee. All three of these breaches are genuine issues of material fact and all three are disputed by CCI. Both NOPP and CCI have presented evidence, i.e., affidavits and emails that controvert each other's assertions with regard to these breaches of the contract entered into between them.

The Louisiana Supreme Court has stated that "[a] genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Hines v. Garrett , 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66. The aforementioned genuine issues of material facts where NOPP and CCI vehemently disagree with one another's position and offer countervailing evidence to prove the facts alleged therein, preclude the granting of summary judgment.

The only way in which the trial court could have granted summary judgment, was if it had weighed the credibility of one witness or favored certain evidence over another, which is specifically disallowed in motions for summary judgment. The Louisiana Supreme Court has pronounced that "[a] trial judge cannot make credibility determinations on a motion for summary judgment." Hutchinson v. Knights of Columbus, Council No. 5747 , 2003-1533, p. 8 (La. 2/20/04), 866 So.2d 228, 234. This Court echoed the Supreme Court's sentiment in Williams v. Metro Home Health Care Agency, Inc. , 2002-0534, p. 3 (La. App. 4 Cir. 5/8/02), 817 So.2d 1224, 1227, and stated that "[m]aking 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." Id. (citing Rapp v. City of New Orleans, 1995-1638 (La. App. 4 Cir. 9/18/96), 681 So.2d 433 ).

Because we find that the trial court improperly granted summary judgment based on the second element of the cause of action, when it improperly either made creditability determinations or improperly weighed evidence, we pretermit discussion of the third element for a breach of contract cause of action.

DECREE

For the aforementioned reasons, we reverse the trial court's grant of summary judgment in favor of CCI and remand for further proceedings.

REVERSED AND REMANDED

LOBRANO, J., CONCURS IN THE RESULT

      According to NOPP, they offered Mr. Donelon the sales manager position with "details to be ironed out between NOPP and CCI/DLL."

      NOPP alleged that Mr. Donelon had a substance abuse problem.

      CCI asserted that NOPP terminated Mr. Donelon on May 16, 2016.

      Ultimately, CCI did not return any money to NOPP.