author: WICKER, J.

text:
    STATE of Louisiana v. Christopher K. GARCIE
    NO. 17-KA-609
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Rachel L. Africk, Douglas E. Rushton
    COUNSEL FOR DEFENDANT/APPELLANT, CHRISTOPHER K. GARCIE, Holli A. Herrle-Castillo
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WICKER, J.

Defendant, Christopher K. Garcie, appeals his conviction for four counts of attempted second-degree murder, one count of aggravated flight from an officer, and one count of illegal use of weapons by discharging a firearm from a motor vehicle located upon a public highway. Having pled guilty pursuant to a plea agreement wherein defendant reserved his appellate right under State v. Crosby , 338 So.2d 584 (La. 1976), to appeal the trial court's pretrial ruling granting the State's motion to admit other crimes evidence at the trial of defendant's case, defendant assigns as error the trial court's order granting the State's motion. For the reasons fully discussed herein, we affirm defendant's convictions and sentences and remand this matter to the district court for corrections of errors patent on the record.

PROCEDURAL HISTORY

In a bill of information filed on January 30, 20167, the Jefferson Parish District Attorney charged that, on November 29, 2016 while in Jefferson Parish, Mr. Garcie: (1) violated La. R.S. 14:30 and La. R.S. 14:27, in that he attempted to commit first-degree murder of Jefferson Parish Sheriff's Office ("JPSO") Deputies Jason Loerwald, Jerome Green, Todd Bordelon and Michael Jones; (2) violated La. R.S. 14:108.1(C), in that Mr. Garcie intentionally refused to bring a vehicle to a stop, under circumstances wherein human life was endangered, knowing he had been given a visual warning and an audible signal to stop by Deputy Bordelon when the officer had reasonable grounds to believe that defendant had committed an offense; and (3) violated La. R.S. 14:94(E), in that Mr. Garcie intentionally, or in a criminally negligent manner, discharged a firearm from a motor vehicle located upon a public highway, with the intent to injure, harm, or frighten another human being. At his arraignment on February 3, 2017, Mr. Garcie pled not guilty and not guilty by reason of insanity to all charges. No motion to appoint a sanity commission or for mental examination was filed, and no sanity hearing was held to determine Mr. Garcie's mental capacity to stand trial or to assist counsel in his defense. On August 4, 2017, the State filed a notice of intent to admit evidence of other acts as res gestae under La. C.E. art. 404(B), to which Mr. Garcie responded by filing a written objection. Following a hearing on August 28, 2017, the trial judge ruled that other evidence leading up to the police chase would be admissible at trial.

On September 19, 2017, pursuant to a negotiated plea agreement, the State amended the attempted first-degree murder charges to four counts of attempted second-degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. On that same date, Mr. Garcie entered pleas of guilty under State v. Crosby , supra, to the amended charges of attempted second-degree murder, withdrew his previous pleas of not guilty and pleaded guilty as charged to aggravated flight from an officer and illegal use of a firearm, and reserved his right to appeal the granting of the State's notice of intent to admit evidence of other acts as res gestae .

After the trial court advised Mr. Garcie of his rights and Mr. Garcie waived these rights to the court's satisfaction, the trial court accepted Mr. Garcie's guilty pleas. Mr. Garcie then waived sentencing delays and, accordingly, the trial court sentenced him to serve concurrent sentences of imprisonment at hard labor for fifteen years on the four counts of attempted second-degree murder, without benefit of probation, parole, or suspension of sentence; imprisonment at hard labor for five years on the one count of aggravated flight from an officer; and, imprisonment at hard labor for ten years for the one count of an illegal use of a firearm, without benefit of probation or suspension of sentence, with credit for time served. The trial court also imposed various fines and fees. Defendant now appeals.

FACTUAL BACKGROUND

Because Mr. Garcie pled guilty, the underlying facts were not fully developed in the record and are largely gleaned from the police report upon which the State relied in seeking admission of other crimes evidence. According to the police report, the charged offenses committed by Mr. Garcie in Jefferson Parish were committed on November 29, 2016, after Mr. Garcie engaged in the following criminal activity in St. Tammany Parish:

On Tuesday, November 29, 2016, at approximately 2130 hours, Deputies Troy White and Walter Eason were dispatched to Rouses Food Market, located at 3461 East Causeway Boulevard, in Mandeville, Louisiana, in reference to an aggravated kidnapping. Deputies arrived at approximately 2139 hours, coming into contact with Mandeville Police Officer Derek Dondeville. Officer Dondeville reported, under his case number 1611-1084, the following:
A white female subject... made contact with Rouses employees and requested they dial 911. [The female subject] stated she had been kidnapped and escaped in the rear parking lot of the business. The suspects [sic] vehicle had been BOLO'd and was currently being pursued by the Mandeville Police Department, southbound, on the Causeway Bridge. The victim... was secured in the rear of Officer Dondevilles [sic] patrol unit.
Deputy Eason relocated to Officer Dondevilles [sic] patrol unit where he came into contact with [the female subject]. Deputy Eason observed a zip tie strap on her left wrist and small cuts on her wrists and feet. [The subject] reported the following:
[The female subject] met with a man, identified as Christopher Garcie, on the website www.backpage.com. A bargain was made to meet Mr. Garcie at [an address] in Lacombe, Louisiana, for the price of $400.00. Mr. Garcie approached [the female subject's] vehicle upon
her arrival at the location in Lacombe. He brandished a firearm and ordered her to exit the vehicle. Mr. Garcie identified himself as a Federal Agent and forced [the female subject] inside the residence. While inside he struck her in the back of the head, with the firearm, and bound her hands with zip ties behind her back. Mr. Garcie proceeded to force [the female subject] into the front passenger seat of his vehicle where they traveled west towards Mandeville, Louisiana. While traveling [the female subject] was able to free her hands and wait for an opportunity to escape. Mr. Garcie entered the Rouses rear parking lot where he slowed the vehicle's speed. [The female subject] jumped from the moving vehicle and ran towards other citizens screaming, "help, I've been kidnapped." [The female subject] was escorted into the store, by an unidentified white male subject, where she was able to dia1 911. [The female subject] described the vehicle as a white colored pickup truck pulling a box shaped trailer.
Emergency medical services were dispatched to the scene. Fire district # 4 later arrived and [the female subject] refused treatment. Deputy Eason relocated to the rear parking lot of Rouses, and located a black colored bag along with a face mask. [The female subject] alleged that the face mask was utilized as a blind fold and that the bag had fallen out of the vehicle during her escape.
* * * * * * * *

According to Mr. Garcie's brief on appeal, following the BOLO alert that had been issued for him in St. Tammany Parish, law enforcement officers from multiple jurisdictions located his vehicle traveling southbound toward Jefferson Parish. Mr. Garcie's brief further avers that, based on the BOLO, the officers attempted to conduct a stop of his vehicle, but he refused and, instead, led the law enforcement officers on a high speed chase into Jefferson Parish, during which he allegedly fired several shots from his vehicle towards the pursuing police units. Mr. Garcie was ultimately apprehended and charged.

ASSIGNMENT OF ERROR

In his sole assignment of error on appeal, Mr. Garcie challenges the trial court's ruling granting the State's motion to admit other crimes evidence under La. C.E. art. 404(B).

DISCUSSION

In support of his contention that the trial court erred, Mr. Garcie argues that none of the other crimes leading up to the high speed chase (i.e. , crimes related to the escort, including setting up a date with the female subject in order to kidnap her, impersonating a federal agent, striking her with a firearm, tying her up with zip ties, and kidnapping her), are part of the res gestae of his fleeing from law enforcement officers on the Causeway bridge. Specifically, Mr. Garcie claims that the escort was out of his vehicle when he fled and failed to stop for police, and that the discharge of his firearm occurred in a completely different parish. Mr. Garcie claims that the jury did not need to know the specific facts of the prior crimes for which the BOLO was issued in order to understand the police chase and Mr. Garcie's shooting of his firearm at the police. Mr. Garcie contends that even if the other crimes are found to be necessary for the State to cohesively present its case, the State could have presented the fact that he was suspected of committing an aggravated kidnapping and impersonating an officer, as opposed to presenting all of the disturbing details of the alleged crime, which invariably would inflame and prejudice the jury. According to Mr. Garcie, even if the other acts are determined to be part of the res gestae , the probative value of the admission of the other crimes is outweighed by the unfair prejudice. Consequently, Mr. Garcie contends that the admission of the other crimes evidence would impede his ability to receive a fair trial and, because the evidence should have been excluded, his guilty pleas should be set aside and the convictions and sentences reversed.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1) ; State v. Prieur , 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Williams , 10-51, p. 15 (La. App. 5 Cir. 7/27/10), 47 So.3d 467, 47 So.2d 467, 474. Evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad acts. La. C.E. art. 404(B)(1) ; State v. Lawson , 08-123, p. 18 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. Lawson , 08-123, p. 19, 1 So.3d at 525-26. Moreover, the probative value of the extraneous evidence must outweigh the prejudicial effect. La. C.E. art. 403.

Evidence that constitutes an integral part of the crime, formerly known as "res gestae ," is admissible without any prior notice to the defense. State v. Charles , 00-1586, p. 6 (La. App. 5 Cir. 6/27/01), 790 So.2d 705, 708. A close connexity between the charged and uncharged conduct is required to ensure that "the purpose served by admission of the other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." Id. citing State v. Colomb , 98-2813, p. 6 (La. 10/1/99), 747 So.2d 1074, 1076. This Court recognized the following in State v. Rhea , 03-1273, p. 9 (La. App. 5 Cir. 2/23/04), 868 So.2d 863, 867 :

The test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State's case of narrative momentum and cohesiveness, "with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences,
whatever they may be, necessary to reach an honest verdict."

Id. citing State v. Colomb , 98-2813, p. 4, 747 So.2d at 1076, quoting Old Chief v. United States , 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997).

The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. State v. Miller , 10-718, p. 17 (La. App. 5 Cir. 12/28/11), 83 So.3d 178, 187. Clearly, evidence of other crimes or bad acts is prejudicial since all evidence that tends to make it more probable than not that an individual committed a criminal offense is necessarily prejudicial. The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Williams , 02-645, p. 16 (La. App. 5 Cir. 11/26/02), 833 So.2d 497, 507. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La C.E. art 404(B)(1) will not be disturbed. State v. Maize , 16-575, pp. 27-28 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 649.

In the instant case, Mr. Garcie was originally charged with four counts of attempted first-degree murder in violation of La. R.S. 14:30 and La. R.S. 14:27. This crime requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Alsay , 11-562, p. 10 (La. App. 5 Cir. 12/13/11), 81 So.3d 145, 149. Specific intent is "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). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. Alsay , 11-562, p. 11, 81 So.3d at 148.

Mr. Garcie was also charged with aggravated flight from an officer in violation of La. R.S. 14:108.1(C), which likewise requires proof of specific intent, and with discharging a firearm from a motor vehicle located upon a public highway in violation of La. R.S. 14:94(E). An understanding of the elements of the latter crime requires an evaluation of La. R.S. 14:94(A), which defines the illegal use of weapons or dangerous instrumentalities as the "intentional or criminally negligent discharging of any firearm ... where it is foreseeable that it may result in death or great bodily harm to a human being." See La. R.S. 14:94(A). Again, proof of specific intent is required.

In State v. Edwards , 406 So.2d 1331, 1350-1351 (La. 1981), cert. denied , 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982), the Louisiana Supreme Court held that other crimes evidence was properly admitted during the defendant's murder trial pursuant to the res gestae exception, noting that the evening's sequence of events formed "one continuous transaction," during which the murder with which the defendant was charged took place, and "without such evidence, the complete story of the crime could not be told." Id. at 1351, citing State v. Curry , 325 So.2d 598, 602 (La. 1976). During the defendant's murder trial, the court admitted evidence that on the evening in question the defendant and an accomplice discussed "making a hit" with a third party, stole alcohol from a grocery, went to the victim's home where they stole coins and stabbed the victim to death and sped away in the victim's vehicle, agreed to a further hustle, and followed a woman to the LSU campus-intending to steal her purse-abandoned that effort and entered a 7-11 convenience store, intent upon another "hustle" at which point they were arrested. Id.

Similarly, in State v. Taylor , 01-1638, pp. 15 (La. 1/14/03), 838 So.2d 729, 740, cert. denied , 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the defendant, who was convicted of first-degree murder and sentenced to death, challenged the trial court's admission of evidence relative to his involvement in crimes committed after the charged offense. The Louisiana Supreme Court discussed at length the admissibility of a seven-day crime spree, which involved dozens of crimes through several states, including the defendant's kidnapping and murder of a victim in Louisiana, stating that "under the rule of narrative completeness incorporated in the res gestae doctrine 'the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault.' " Id. , 01-1638, p. 12, 838 So.2d at 743, quoting Old Chief v. United States , 519 U.S. 172, 188, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

In State v. Carter , 15-99 (La. App. 5 Cir. 7/29/15), 171 So.3d 1265, the defendant committed several armed robberies at various Advanced Auto Parts and Radio Shack stores located in Jefferson Parish. The State sought to introduce evidence that the defendant had committed another armed robbery at a Radio Shack store located in Mobile, Alabama in order to show the logical sequence of steps taken by law enforcement, which ultimately connected the defendant to the armed robberies for which he was being prosecuted. In affirming the trial court's admission of the other crimes evidence under the res gestae doctrine, this Court noted that the evidence "was integral act evidence that was relevant to show how law enforcement was able to develop the defendant as a suspect in the Jefferson Parish robberies." Id. , 15-99, p. 33, 171 So.3d at 1280.

Additionally, in State v. Rhea , supra , the defendant argued that evidence of other crimes committed in Orleans Parish that preceded the attempted second-degree murder for which he was being prosecuted should have been excluded as unduly prejudicial. Rhea , 03-1273, p. 9, 868 So.2d at 867. Relying on the Supreme Court's discussion of the admission of res gestae evidence in State v. Edwards , supra , this Court noted that the attempted second-degree murder of the victim did not occur in a vacuum. Specifically, the crime spree commenced with the kidnapping of the victim and culminated in her attempted murder. In affirming the trial court's admission of the evidence, this Court determined that "the events were so intertwined with the attempted murder that the State could not have told the complete story to the jury without evidence of these events." Rhea , 03-1273, p. 12, 868 So.2d at 868.

Similar to Edwards , Taylor , Carter and Rhea , in the instant case, Mr. Garcie was involved in a crime spree. The initial criminal acts Mr. Garcie committed against the victim in St. Tammany Parish formed part of a continuous chain of events culminating in the commission of the crimes for which he was being tried in Jefferson Parish. The kidnapping victim's explanation to law enforcement officers of the harrowing events of the evening, and the description she provided of her attacker and his vehicle, resulted in the officers being on the lookout for the perpetrator. Further, because of the other crimes, law enforcement was able to focus on Mr. Garcie and conduct a traffic stop of his vehicle.

As in Carter and Rhea , we find that the trial court properly admitted evidence of the preceding crimes committed by Mr. Garcie, as presentation of the res gestae evidence was necessary in order for the State to logically present its case, to explain why the officers focused on Mr. Garcie's vehicle, and to place the actions of law enforcement in the proper context. A close connexity existed between the preceding crimes and the charged conduct ensuring that the purpose served by admission of the other crimes evidence was to complete the story of the crimes on trial by proving the immediate context of happenings in time and place, rather than to depict Mr. Garcie as a bad man. See Charles , 00-1586, p. 6, 790 So.2d at 708. As an element of the offense of attempted first-degree murder, the State had to prove that Mr. Garcie had the specific intent to kill the law enforcement officers during their pursuit of him in order to evade the consequences of his earlier criminal actions. Additionally, the other crimes evidence was admissible to prove, as an element of the offense of aggravated flight from an officer, that the officers had reasonable grounds to believe that Mr. Garcie had committed an illegal offense. See Carter , 15-99, p. 33, 171 So.3d at 1280.

Furthermore, despite Mr. Garcie's contentions to the contrary, the fact that the integral acts occurred in St. Tammany Parish, and not in Jefferson Parish where the charged offenses were committed, does not preclude the admission of the other crimes evidence pursuant to La. C.E. 404(B)(1). See Taylor , Carter and Rhea , supra . Lastly, based on the foregoing, although the evidence of the other crimes committed by Mr. Garcie is prejudicial, as evidence of other crimes is always prejudicial, we find the probative value of the challenged evidence is high and that its relevance is not substantially outweighed by a danger of unfair prejudice.

For the foregoing reasons, we do not find that the trial court erred by granting the State's notice of intent and deeming the evidence of other crimes admissible. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

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. 5th Cir. 1990). We found several patent errors, not all of which require correction. Nonetheless, we discuss each patent error separately for the sake of completeness.

Ambiguity in the Imposition of Sentence for Counts One through Four

Pursuant to the transcript, once Mr. Garcie waived all sentencing delays, the trial judge commenced sentencing him as follows: "As to each of the first four counts, you will be sentenced to 15 years at hard labor in the Department of Corrections." The trial judge also sentenced Mr. Garcie on counts five and six, with all of those sentences to "run concurrently with each other." Following a brief bench conference, the trial judge stated:

All right. Let me start over again. In accordance with the Code of Criminal Procedure Article 894.1 as to Counts 1, 2, 3, and 4, the sentence will be 15 years at hard labor in the Department of Corrections. That will be served without benefit of probation, parole, or suspension of sentence.

Thus, although the trial judge initially sentenced Mr. Garcie on each of the first four counts, he did not specifically do so when he "start[ed] over again." At that time, the transcript suggests that the trial judge sentenced Mr. Garcie to one fifteen-year sentence for all four counts of attempted second-degree murder.

The trial court must impose a separate sentence for each count on which a defendant is convicted. State v. Collins , 04-751, p. 6 (La. App. 5 Cir. 11/30/04), 890 So.2d 616, 620. While the trial court's failure to impose a sentence for each count is considered a patent sentencing error, an exception exists to the general rule:

When the sentences for a conviction on each count would more appropriately be concurrent rather than consecutive,
and the term for the imprisonment is reasonable under the circumstances, the single sentence will not affect the substantial rights of the defendant, and remand for clarification or resentencing is not necessary.

State v. Hebert , 02-1252, pp. 13-14 (La. App. 5 Cir. 4/8/03), 846 So.2d 60, 66. Article 883 of the Louisiana Code of Criminal Procedure provides that sentences for two or more convictions based on the same transaction, or constituting parts of a common scheme or plan, are to be served concurrently, unless the trial court expressly directs that some or all be served consecutively.

In the present case, all of Mr. Garcie's convictions were based on a single, though lengthy, incident. Moreover, the sentencing transcript reflects that the trial judge apparently intended to sentence Mr. Garcie to fifteen years at hard labor on each count, since he initially did so. Additionally, the trial judge ordered that all of Mr. Garcie's convictions were to be served concurrently in accordance with the plea agreement. Further, the Uniform Commitment Order ("UCO") indicates that, as to counts one through four, Mr. Garcie was sentenced to fifteen years on each count, "concurrent." Accordingly, we find no need to remand the matter for clarification or resentencing on counts one through four.

Inconsistency/Commitment and UCO

In our review for errors patent, we have found inconsistencies between the transcript and the commitment and UCO. The commitment reflects that the five-year sentence on count five was imposed without benefit of probation or suspension of sentence, but the transcript does not reflect that the sentence on count five was imposed without benefits. Moreover, the waiver of rights form does not indicate that count five was to be imposed without benefits. Similarly, while the transcript reflects that the ten-year sentence on count six was imposed without benefit of probation or suspension of sentence, the commitment does not reflect that the sentence on count six was imposed without benefit of probation or suspension of sentence. Also, the waiver of rights form indicates that the sentence on count six was to be imposed without benefit of probation or suspension of sentence. To the extent that the minute entry or commitment is inconsistent with the transcript, the transcript prevails. State v. Ford , 11-91, p. 6 (La. App. 5 Cir. 12/13/11), 81 So.3d 841, 844, citing State v. Lynch , 441 So.2d 732, 734 (La. 1983).

Additionally, the UCO reflects that the offense date was November 29, 2016, on all counts. However, in the transcript, when providing the factual basis, the State said that the offenses occurred more generally on or about November 29, 2016. As previously noted, the transcript prevails. See Ford , supra.

Accordingly, we remand this matter to the trial court with instructions to correct the commitment and the UCO as noted in order that they conform to the transcript. Further, we direct the 24th Judicial District Court Clerk of Court to transmit 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.

Post-Conviction Relief Advisal

Although the commitment reflects that the trial judge properly advised Mr. Garcie of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8, the transcript indicates the trial judge gave conflicting information. Specifically, the transcript reveals that, initially, the trial court advised Mr. Garcie that "any post-conviction relief applications must be filed within two years of the date that the sentence becomes final." However, later on during the colloquy, the trial judge correctly advised Mr. Garcie that he had "two years after the judgment of conviction and sentence become final in which to seek post-conviction relief." Additionally, the waiver of rights form reflects that Mr. Garcie was incompletely advised that any post-conviction relief applications must be filed within two years of the date the sentence becomes final. It is well-settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely , 08-707, p. 15 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538 ; State v. Taylor , 12-25, p. 37 (La. App. 5 Cir. 6/28/12), 97 So.3d 522, 538 ; and State v. Brooks , 12-226, p. 19 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 615.

Accordingly, because he received conflicting information, we advise Mr. Garcie by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

DECREE

For the reasons set forth herein, we find the trial judge did not err in granting the State's notice of intent to introduce evidence of other acts committed by Mr. Garcie as res gestae . Consequently, Mr. Garcie's convictions and sentences are affirmed. This matter is remanded for the limited purpose: (1) of correcting the commitment to delete the probation or suspension of sentence restriction from Mr. Garcie's five-year sentence on count five; (2) of correcting the commitment to include "without benefit of probation and suspension of sentence" restriction to Mr. Garcie's ten-year sentence on count six; (3) of correcting the commitment to conform to the transcript; (4) of correcting the Uniform Commitment Order to reflect an offense date of "on or about November 29, 2016," in conformity with the transcript; and (5) to transmit the corrected commitment and UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department.

DEFENDANT'S CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS

      The State also agreed to refrain from filing a multiple offender bill against defendant.

      There is no indication in the record that Mr. Garcie withdrew his pleas of not guilty and not guilty by reason of insanity to the original charges on four counts of attempted first-degree murder.

      Because the victim of the aggravated kidnapping is not a victim in a charged count in the instant case, she has been referred to as "the female subject."

      In the notice of intent, the State indicated that the acronym, "BOLO," stands for "be on the lookout."

      First-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon a peace officer engaged in the performance of his lawful duties, including deputy sheriffs and local or state policemen. La. R.S. 14:30(A)(2), (B)(1). "Attempt" is defined as "[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended[.]" La. R.S. 14:27(A).

      La. R.S. 14:108.1(C) defines aggravated flight from an officer as:
      [T]he intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.

      La. R.S. 14:94(E) provides:
      Whoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm from a motor vehicle located upon a public street or highway, where the intent is to injure, harm, or frighten another human being, shall be imprisoned at hard labor for not less than five nor more than ten years without benefit of probation or suspension of sentence.

      In this case, where Mr. Garcie originally pleaded not guilty and not guilty by reason of insanity to all charges, it was error for the trial court not to query Mr. Garcie during the plea colloquy regarding his original plea of not guilty by reason of insanity (a plea that, according to the record, was not withdrawn), and whether, in the face of that original insanity plea, Mr. Garcie was able to understand the nature of the proceedings and the ramifications of his desire to change his plea to guilty. It was also error for the trial court not to query defense counsel as to whether, given his interactions with Mr. Garcie, he discerned any mental incapacity or deficiency that would render Mr. Garcie either incompetent at the time of the offense or unable to understand the nature of the proceedings and assist counsel in his defense. A thorough review of the record, however, including the interaction between the trial judge and Mr. Garcie during the plea colloquy, and extensive research of the applicable law, convinces us that the error was harmless. A defendant in a criminal case is presumed sane and responsible for his actions and the defendant bears the burden of proving otherwise. The standard of proof is by a preponderance of the evidence and the defendant must show that it was more probable than not that he lacked mental capacity to enter the guilty plea. State v. Tranchant , 10-459, p. 10 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, 734. Here, Mr. Garcie never requested that a sanity commission be appointed or moved for a mental examination to be conducted. Additionally, there is no evidence in the record from which we can discern that either the trial court or defense counsel had evidence, however insubstantial, which would have incited the need for investigation into whether Mr. Garcie was either unable to understand the nature of the proceedings or to assist defense counsel in his defense. Also, during the plea colloquy, Mr. Garcie gave no indication or reason to believe that he was incompetent to proceed. Both the transcript and the colloquy, as well as the waiver of rights form executed by Mr. Garcie, show that he was fully advised of his constitutional rights, the nature of the crimes charged, and the consequences of his guilty plea. Further, his responses during the colloquy, and his apparent behavior throughout the proceedings, indicate that he fully understood his rights and the consequences of entering a guilty plea. For these reasons, we are satisfied and able to conclude that Mr. Garcie understood the nature of the proceedings, including the consequences attendant to changing his plea to guilty, and was able to assist counsel. Accordingly, the trial court's error in failing to question Mr. Garcie during the plea colloquy regarding his original plea of not guilty by reason of insanity prior to accepting his guilty plea was harmless. See State v. Willie , 17-252 (La. App. 5 Cir. 12/20/17), 235 So.3d 1339.

      The State alleged in the amended bill of information that count one occurred on or about November 29, 2016, and that counts two through five occurred on November 29, 2016.


source: Caselaw Access Project

author: PENZATO, J.

license: Public Domain

text:
    Chester ONEZIME v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2017 CA 0214
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017
    Chester Onezime, Angola, Louisiana, Plaintiff/Appellant, In Proper Person
    Terri L. Cannon, Angola, Louisiana, Attorney for Defendant/Appellee, Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant, Chester Onezime, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), housed at Louisiana State Penitentiary located in Angola, Louisiana, appeals a judgment of the district court that dismissed his petition for judicial review with prejudice. Based on our review of the record, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Onezime filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) seeking review of a lost property claim No. LSP-2012-1246 in accordance with the Louisiana Corrections Administrative Remedy Procedure ("CARP"), La. R.S. 15:1171 et seq. Mr. Onezime disputes DPSC's final agency decision denying his request for property loss. Mr. Onezime is in the custody of DPSC and on January 13, 2012, was found in possession of a cellphone, which is considered contraband. For this rule violation, Mr. Onezime, who was housed in the main prison, was sentenced to the Camp J Management Program. On January 13, 2012, Mr. Onezime's personal property was packed into two boxes and with tamper proof seals numbered 57082 and 57083. On this same date, he was moved from the main prison to an administrative segregation area until he was transferred to Camp J on January 26, 2012. Mr. Onezime signed an acknowledgment that the two boxes with tamper proof seals numbered 57082 and 57083 were intact at this time. Camp J did not permit Mr. Onezime to keep all the personal property that was contained in the two boxes, so the items he was not allowed to have at Camp J were placed in two green army bags with tamper proof seals numbered 68883 and 68890. Mr. Onezime claims that when the bags were returned to him on April 24, 2012, numerous items of personal property were missing, namely, clothing, a radio, and headphones, and he filed this ARP, which was originally denied by the warden.

The warden's decision notes that besides the fact that Mr. Onezime acknowledged on January 26, 2012, that the tamper proof seals numbered 57082 and 57083 on the two boxes were intact at the time of delivery, there was no indication that Mr. Onezime complained of missing property at the time of delivery. Furthermore, the investigation revealed that once at Camp J, Mr. Onezime was given his property contained in the two boxes, except for items he was not allowed to have at Camp J, which were placed in two green bags.

Mr. Onezime appealed to the Secretary of DPSC, who denied the claim for failing to prove that a loss occurred. He then filed a petition for judicial review in the district court seeking to be compensated for his lost property. The 19th JDC Commissioner (Commissioner) issued a recommendation that the final administrative decision be affirmed. The Commissioner reasoned that there was no evidence in the record to substantiate a loss, so Mr. Onezime failed to meet his burden of proof. The district court adopted the recommendation of the Commissioner after considering the administrative record, the Commissioner's Report, and the traversal filed by Mr. Onezime. It is from this judgment dated October 24, 2016, that Mr. Onezime appeals.

DISCUSSION

Louisiana Revised Statute 15:1177(A)(9) sets forth the appropriate standard of review by the district court, which functions as an appellate court when reviewing the DPSC's administrative decisions. Judicial review is mandated to be conducted by the district court without a jury and must be confined to the record. La. R.S. 15:1177(A)(5). Specifically, the court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings are: (1) in violation of constitutional or statutory provisions, (2) in excess of the statutory authority of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary, capricious or characterized by an abuse of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9) ; Lightfoot v. Stalder , 2000-1120 (La. App. 1 Cir. 6/22/01), 808 So.2d 710, 715-716, writ denied , 2001-2295 (La. 8/30/02), 823 So.2d 957.

On review of the district court's judgment under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder , 99-1747 (La. App. 1 Cir. 9/22/00), 770 So.2d 447, 450-51.

In his brief, Mr. Onezime asserts that he was not present on January 13, 2012, when his property was initially packed into two boxes by Major M. Laborde and Captain Leon Jenkins. He also claims that when he was moved to Camp J, it was the responsibility of the security officers to inventory his personal property. Mr. Onezime complains that he had to sign the acknowledgment form before he was given his personal property.

Louisiana State Penitentiary Directive No. 09.042 (directive), effective April 26, 2011, governed the institution's policy of offender property storage at the time in question. Section F of the directive states that "when the offender will not be allowed to retain all or part of his property at his new location, his property will be stored." Section F(1)(a) sets forth that if the offender is unavailable, the security staff will pack the belongings, but "[t]he security staff is not responsible for locating the offender's property which he may have left with other offenders or which is not located in the offender's immediate bed area."

The evidence in the record is that the security staff followed Section F of directive No. 09.042, which required tamper proof seals on an offender's personal property. On January 13, 2012, Captain Jenkins and Major Laborde signed Form B that Mr. Onezime's personal property was placed in two boxes with tamper proof seals numbered 57082 and 57083. Sergeant Joshua Francois made a statement in connection with the lost property claim, and stated that on January 26, 2012, all of the property that Mr. Onezime was not allowed to have at Camp J was placed in two green army bags and tamper proof seals numbered 68883 and 68890 were placed on the bags. Mr. Onezime admitted in his original complaint to the warden that a security officer explained to him what he could and could not have at Camp J. On January 26, 2012, Mr. Onezime acknowledged receipt of his personal property with tamper proof seals numbered 57082 and 57083 and that the tamper proof seals were intact. He also signed a form acknowledging that the two green bags numbered 68883 and 68890 were sealed in front of him and that all his property was placed in them.

Sergeant Justin Butler obtained the two green bags for Mr. Onezime on April 24, 2012, verified the seal numbers, and broke the intact seals and opened them in Mr. Onezime's presence. Mr. Onezime signed an acknowledgment that the tamper proof seals of the two green bags numbered 68883 and 68890 were intact at the time the property was returned to him. He also admitted that the two green bags had the same identification numbers as on Form B, the personal property storage document. It was only on April 24, 2012, that Mr. Onezime claimed he had missing property, not when it was stored in front of him on January 26, 2012.

Mr. Onezime claims that as required by directive Section F(2)(a) a property inventory form, Form A, should have been used by the security staff and was not. The Commissioner noted that Mr. Onezime did not object to the form used when his property was separated and placed into bundles on January 26, 2012. Instead, Mr. Onezime acknowledged that all of this property was stored and sealed. He made no claim of missing property until he opened the two green bags on April 24, 2012, which he agreed were still sealed.

Pursuant to CARP, the review of a district court is to be conducted "without a jury and shall be confined to the record." La. R.S. 15:1177(A)(5). A party who desires oral argument must make a timely request and include the reasons oral argument should be had. It is the district court's discretion to hear oral argument. La. R.S. 15:1177(A)(6)(a). Mr. Onezime was given the opportunity for oral argument.

Based upon our review of the administrative record and pursuant to La. R.S. 15:1177(A)(9), we conclude that DPSC's decision finding there was no evidence to substantiate the loss was neither arbitrary, capricious, manifestly erroneous, or in violation of any of Mr. Onezime's constitutional or statutory rights. A reviewing court's function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency. Save Ourselves, Inc. v. Louisiana Environmental Control Comm'n. , 452 So.2d 1152, 1159 (La. 1984). The evidence in the record supports a reasonable finding that Mr. Onezime received all of his property.

Mr. Onezime requested to be compensated for his lost property. Given the fact that we agree that he did not carry his burden of proof as to his lost property claim, Mr. Onezime is not entitled to any compensation.

CONCLUSION

Based on the foregoing, the October 24, 2016 judgment of the district court, which dismissed the suit with prejudice is affirmed. Costs of this appeal are assessed against plaintiff, Chester Onezime.

AFFIRMED.

      Several times in the record the date "1/26/11" is on the documentation. However, since the property was originally placed in storage on January 13, 2012, we must assume that the "1/26/11" is simply a mistake and was meant to be January 26, 2012.

      The office of commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5) ; see Martinez v. Tanner , 2011-0692 (La. App. 1 Cir. 11/9/11), 79 So.3d 1082, 1084 n.3, writ denied , 2011-2732 (La. 7/27/12), 93 So.3d 597.

      Again the date is listed as "1/26/11" when it must have been January 26, 2012.


author: McDONALD, J.

text:
    Ernest Armando HOWARD, Jr. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.; Garda CL Southeast, Inc.; and Marcus Rene Slaughter
    2017 CA 1221
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 16, 2018
    S. Bradley Rhorer, Zachary S. Walker, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Ernest Armando Howard, Jr.
    Alphonse M. Thompson, Jr., New Orleans, Louisiana, Attorney for Defendants/Appellees National Union Fire Insurance Company of Pittsburgh, PA; Garda CL Southeast, Inc.; and Marcus Rene Slaughter
    BEFORE: WHIPPLE, CJ., MCDONALD, and CHUTZ, JJ.
   McDONALD, J.

In this appeal, a plaintiff in a tort suit challenges a judgment denying his claim for medical expenses against the tortfeasor's insurer. The trial court determined that the plaintiff could not recover the medical expenses because his employer's workers' compensation insurer had previously paid them. We find the trial court erred and amend the judgment to include an award for the medical expenses.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2014, Marcus Rene Slaughter, an employee of Garda CL Southeast, Inc. (Garda), and Ernest "EJ" Howard Jr., an employee of Doug Ashy Building Materials (DABM), were driving in adjacent lanes on Evangeline Thruway in Lafayette Parish, Louisiana. Both men were in the course and scope of their employment and were driving vehicles owned by their respective employers. Mr. Slaughter left his lane of travel and collided with Mr. Howard, who struck his right knee on the dashboard and twisted his back. Shortly after the accident, Mr. Howard twice sought medical treatment for right knee and lower back pain. When the pain continued, Mr. Howard was referred to Dr. Seth Rosenzweig, an orthopedic surgeon, in January 2015. Ultimately, in February 2015, Dr. Rosenzweig performed arthroscopic surgery to repair a torn meniscus and to debride a partial anterior cruciate ligament tear in Mr. Howard's right knee. Mr. Howard followed up with several weeks of physical therapy and remained out of work until mid-March 2015. It is undisputed that DABM's workers' compensation insurer (DABM's insurer) paid Mr. Howard's medical expenses and also paid workers' compensation benefits to Mr. Howard while he did not work.

Mr. Howard filed this suit against Mr. Slaughter, Garda, and Garda's automobile insurer, National Union Fire Insurance Company of Pittsburgh, Pa. (NUFIC). DABM's insurer did not intervene in the suit to recover the medical expenses it paid on Mr. Howard's behalf. In a partial summary judgment, the trial court determined that Mr. Slaughter was solely at fault in causing the accident. And, after a bench trial, the trial court determined the accident caused Mr. Howard's injuries. In an earlier consent judgment, Garda and NUFIC had admitted solidary liability with Mr. Slaughter, and that he was an insured under NUFIC's policy, in the event judgment was rendered against him. By judgment signed on February 15, 2017, the trial court awarded Mr. Howard $3,900 in lost wages and $37,500 in general damages against the defendants. In reasons for judgment, the trial court stated that its award to Mr. Howard did not include the $33,793 in medical expenses DABM's insurer paid on Mr. Howard's behalf because such was not recoverable under Louisiana law.

Mr. Howard appeals from the adverse judgment, contending that, even though DABM's insurer paid his medical expenses, the trial court erred in failing to award those expenses to him. In response, the defendants contend they were solidarity liable with DABM and its insurer for Mr. Howard's medical expenses, and, as such, DABM's insurer's payment of these expenses discharged the defendants' obligation to pay them.

STANDARD OF REVIEW

In reviewing this matter, we apply the de novo standard of review. The issues involved require the proper interpretation of statutes and an analysis of the applicability of the collateral source rule, both of which are questions of law. Silver Dollar Liquor, Inc. v. Red River Parish Police Jury, 10-2776 (La. 9/7/11), 74 So.3d 641, 646 (statutory interpretation); Crockerham v. Weyerhaeuser Holden Wood Products, 16-0331 (La. App. 1 Cir. 6/2/17), 223 So.3d 533, 537, writ denied, 17-1121 (La. 10/27/17), 228 So.3d 1232 (statutory interpretation); Madrid v. AEP River Operations, LLC, 14-0044 (La. App. 4 Cir. 10/15/14), 151 So.3d 897, 901, writ granted, 14-2384 (La. 2/27/15), 159 So.3d 1062 (collateral source rule).

SOLIDARY OBLIGORS UNDER THE LOUISIANA WORKERS' COMPENSATION ACT

Under LSA-C.C. art. 2315, a tortfeasor is obliged to repair the damage he has wrongfully caused to an innocent accident victim. And, under the Louisiana Workers' Compensation Act (LWCA), LSA-R.S. 23:1020.1, et seq., an employer and/or its workers' compensation insurer, is obliged to pay an injured employee for necessary medical treatment caused by a work-related injury. See LSA-R.S. 23:1203A and 1168A(1). Sometimes, a workers' compensation insurer is required to pay, subject to statutory considerations, certain amounts that the injured employee is entitled to recover as damages from the tortfeasor. See Bellard v. American Central Ins. Co., 07-1335 (La. 4/18/08), 980 So.2d 654, 664-65. In this case, DABM's insurer and the defendants share coextensive liability for Mr. Howard's medical expenses resulting from injury caused by Mr. Slaughter. Id. at 665. As decided by the Louisiana Supreme Court in Bellard, this obligation is a solidary obligation even though the sources and amounts of the obligation differ. Id. at 663-66. Also see Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1388 (La. 1993) (finding the employer's liability for workers' compensation death benefits and the tortfeasor's liability for wrongful death and survival benefits to be a solidary obligation); Olivier v. City of Eunice, 11-1054 (La. App. 3 Cir. 6/6/12), 92 So.3d 630, 638-39, writ denied, 12-1570 (La. 10/12/12), 98 So.3d 874 (finding the victim's employer and the victim's health insurer solidarity liable for the victim's medical expenses, even though the sources and amounts of liability differed).

Generally, one solidary obligor's payment of a debt to an obligee relieves other solidary obligors of that liability. See LSA-C.C. art. 1794. In this case, however, the solidary obligation exists between a workers' compensation insurer and a tortfeasor. Louisiana Revised Statute 23:1101A specifically provides that an injured employee's receipt of workers' compensation benefits shall not affect his rights against a third person (e.g., a tortfeasor) who is legally liable to pay damages for injuring the employee. See LSA-R.S. 23:1101C, defining "third person." If there is a conflict between two statutes that deal with the same subject matter, the statute specifically directed to the matter at issue prevails over a more general statute. Burge v. State, 10-2229 (La. 2/11/11), 54 So.3d 1110, 1113 (per curiam). Thus, LSA-R.S. 23:1101A's specific directive that an injured employee's rights not be affected by his receipt of workers' compensation benefits prevails over LSA-C.C. art. 1794's more general directive that one solidary obligor's payment of a debt relieves all other solidary obligors of liability. Thus, DABM's insurer's payment of Mr. Howard's medical expenses cannot affect Mr. Howard's rights against the defendants, notwithstanding that DABM's insurer has paid the debt that the defendants solidarily owed with it. Accord Westgate, LLC v. Eaton Corp., 12-1098 (La. App. 1 Cir. 2/15/13), 113 So.3d 238, 242 (A grant of contribution among solidary obligors under the civil code cannot prevail over the right of indemnity granted to a statutory employer under the workers' compensation statute governing liability of principal contractors.); Edwards v. Sawyer Indus. Plastics, Inc., 31,316 (La. App. 2 Cir. 11/1/00), 790 So.2d 29, 32, writ granted, 00-3240 (La. 2/2/01), 783 So.2d 376 (The workers' compensation statute mandating that expert fees be fixed in final judgment prevails over general statute permitting the deferral of setting such costs until after final judgment rendered.); Andre v. Construction Material Shop, 93-1212 (La. App. 1 Cir. 3/11/94), 633 So.2d 1313, 1318 (The workers' compensation statute regarding service of process governs over the code of civil procedure's more general article regarding same.)

COLLATERAL SOURCE RULE

Further, even if LSA-R.S. 23:1101A did not exist, there are instances when the collateral source rule overrides principles of solidarity. In Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, 951-53, and in Bellard, 980 So.2d at 670-71, the Louisiana Supreme Court analyzed the strong public policy concerns supporting the collateral source rule vis-a-vis solidary obligors to determine whether these public policies may override principles of solidarity. Linder the particular facts of Cutsinger and Bellard, the Supreme Court ultimately concluded that the collateral source rule was inapplicable, because the policies underlying the rule were not advanced. Cutsinger, 12 So.3d at 955 ; Bellard, 980 So.2d at 670. However, if the principles of solidarity were absolute and could not be overridden by applying the collateral source rule, then there would have been no reason for the Supreme Court to conduct the analysis, not once, but twice. See Howard v. United Servs. Auto. Ass'n, 14-1429 (La. App. 1 Cir. 7/22/15), 180 So.3d 384, 403 (Welch, J., concurring), writ denied, 15-1595 (La. 10/30/15), 179 So.3d 615. Thus, we conduct a similar analysis here.

The collateral source rule provides that a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies the plaintiff receives from sources independent of the tortfeasor's procuration or contribution. Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, 698. Under the rule, payments received from an independent source are not deducted from the award a tort victim would otherwise receive from the tortfeasor, because the tortfeasor is not allowed to benefit from outside benefits provided to the tort victim. Id. Examples of collateral sources that may provide compensation for a tort victim's injuries include Medicare, Medicaid, workers' compensation, unemployment compensation, sick pay and related employee benefit programs, Social Security, pension and retirement funds, and benefits provided gratuitously by private parties or government agencies under compulsion of neither contract nor statute. Bozeman, 879 So.2d at 706 (Knoll, J., concurring). The rule reflects the beliefs that the tortfeasor should not profit from the victim's prudence in obtaining insurance, or benefitting from other sources, and that reducing the amount the tortfeasor would have to pay hampers the deterrent effect of the law. Bellard, 980 So.2d at 668.

In determining whether the collateral source rule applies, two considerations govern: (1) whether applying the rule will further the major policy goal of tort deterrence; and (2) whether the victim, by having a collateral source available as a source of recovery, either paid for such benefit or suffered some diminution in his patrimony because the benefit was available, such that he is not reaping a windfall or double recovery. Cutsinger, 12 So.3d at 953. When the tortfeasor is held liable, even though the plaintiff has benefitted from a collateral source, tort deterrence is furthered. See Howard, 180 So.3d at 405 (Welch, J., concurring) (Applying the collateral source rule when a tortfeasor seeks a reduction of damages serves the good of deterring wrongful conduct.) And, when the victim's patrimony has been diminished by the availability of the collateral source, he is not doubly recovering. For example, such exists when the victim's collateral source of benefits is insurance for which he has paid premiums. See Griffin v. La. Sheriff's Auto Risk Ass'n, 99-2944 (La. App. 1 Cir. 6/22/01), 802 So.2d 691, 714-15, writ denied, 01-2117 (La. 11/9/01), 801 So.2d 376. Conversely, when the tortfeasor is not the one from whom recovery is sought, tort deterrence is not furthered. For example, such exists when an employer's uninsured motorist insurer seeks a reduction in damages for payments made by the employer and/or its workers' compensation insurer to the injured employee, rather than when it is the tortfeasor or her insurer who seeks the reduction. See Bellard, 980 So.2d at 670-71. And, when the victim's patrimony has not been diminished by the availability of the collateral source, he would doubly recover. For example, a patient who receives Medicaid benefits gives no consideration for these free benefits and, as such, he cannot recover amounts written off by healthcare providers as a result of contractual arrangements with Medicaid. See Benoit v. Turner Indust. Group, LLC, 11-1130 (La. 1/24/12), 85 So.3d 629, 635 (per curiam); Bozeman, 879 So.2d at 705.

In Cutsinger, the Supreme Court stated that the primary policy reason to apply the collateral source rule is tort deterrence and that, while it is important to consider whether the plaintiff paid for the collateral source or suffered some diminution in her patrimony due to the availability of the benefit to determine whether a double recovery would result from applying the rule, this consideration alone is not the determinative factor in deciding whether the collateral source rule applies. Cutsinger, 12 So.3d at 954. Thus, after Cutsinger, the proper approach to determining whether the collateral source rule applies requires an analysis of the facts of each case in light of the above two considerations, with emphasis placed on the primary policy goal of tort deterrence. See Cutsinger 12 So.3d at 952, 954-55 ; Johnson v. Neill Corp., 15-0430 (La. App. 1 Cir. 12/23/15), 2015 WL 9464625 at *10 (unpublished), writs denied, 16-0137, 16-0147 (La. 3/14/16), 189 So.3d 1070, 1070.

In this case, applying the collateral source rule will further tort deterrence. Mr. Slaughter was the sole cause of the accident and of Mr. Howard's injuries. By holding the defendants liable for Mr. Howard's medical expenses, the tortfeasor, Mr. Slaughter, will be deterred from careless driving; Garda may invest in accident avoidance to further avoid increased insurance premiums; and, NUFIC will pay under its policy. The defendants should not benefit because Mr. Howard had workers' compensation benefits available to him. Allowing the defendants any credit or benefit from the victim's receipt of workers' compensation benefits hampers the deterrent effect of tort law and provides disincentive for the tortfeasor to conform to standards of reasonableness. Accord Howard, 180 So.3d at 405 (Welch, J., concurring).

Next, as to the second consideration, we cannot say that Mr. Howard's patrimony was diminished by DABM's insurer's payment of his medical expenses. An employee provides no consideration for workers' compensation benefits (which include medical expense payments), and such payments cannot be considered a fringe benefit in the nature of deferred compensation that would otherwise be available to the plaintiff but for his injury. Bellard, 980 So.2d at 669-70. But, even when the victim's patrimony is not diminished, the question then becomes, "who should gain the benefit of the collateral source, the injured victim or the tortfeasor?" Johnson, 2015 WL 9464625 at *11.

In Royer v. State, Department of Transp. & Dev., 16-534 (La. App. 3 Cir. 1/11/17), 210 So.3d 910, 922, writ denied, 17-0288 (La. 4/24/17), 221 So.3d 69, the Third Circuit answered the above question by concluding that it is the injured victim who benefits. In Royer, as in the instant case, the injured victim's patrimony was not diminished, because a workers' compensation insurer paid his medical bills, but tort deterrence was furthered, because it was the tortfeasor who was denied a credit for the payment. The Royer court reasoned that the overriding policy of tort deterrence outweighed the concern of double recovery. Id. Given the Cutsinger court's instruction that the primary policy reason for applying the collateral source rule is indeed tort deterrence, we conclude, as did the Royer court, that it is the injured victim, and not the tortfeasor, who should benefit from the collateral source where it was obtained neither by the tortfeasor's procuration nor by a diminution of the injured victim's patrimony. See Cutsinger, 12 So.3d at 952. Thus, applying this rationale here, under our de novo review of this legal issue, we find the trial court should have applied the collateral source rule by holding the defendants liable to Mr. Howard for the medical expenses DABM's insurer paid on his behalf. Accord Johnson, 2015 WL 9464625 at *11 (Even if the victim suffered no diminution of her patrimony, the tortfeasor should not benefit from the collateral source.)

We acknowledge that applying the collateral source rule here will result in what the defendants argue is a "double recovery" to Mr. Howard, since DABM's insurer did not intervene in Mr. Howard's suit. Normally, when an insurer has paid medical benefits to an injured employee, and the employee files suit against a third party tortfeasor, the insurer does intervene in the suit to recoup the medical benefits it paid on the injured employee's behalf. See LSA-R.S. 23:1101-1103; Mitchell v. Abernathy, 00-2375 (La. App. 1 Cir. 2/15/02), 815 So.2d 110, 112 ; writ denied, 02-1392 (La. 9/20/02), 825 So.2d 1169 ; Brasseaux v. Stand-By Corp., 402 So.2d 140, 145 (La. App. 1 Cir.), writ denied, 409 So.2d 617 (La. 1981). However, in Brasseaux, 402 So.2d at 145, where like the present case, no intervention was filed, this Court rejected this "double recovery" argument, relying on 14 La. Civ. Law. Treatise, Malone and Johnson, Workers' Compensation Law and Practice, § 369, pp. 279-80 (5th ed.), as follows:

If, in the end, the [workers' compensation insurer] does not intervene and does not bring a separate suit, what is the effect on the employee's tort suit? ... [T]he third person is not entitled to a credit against the amount of damages awarded in the employee's suit for the amount of compensation paid the employee which would have been claimed by the ... insurer if there had been an intervention. This is merely a recognition of the well established rule in tort law that where an injured party proceeds against the wrongdoer for damages, he is entitled to an award for the full amount of his loss, even though the loss is partially or wholly made good by an insurer. Such a result does not amount in truth to "double recovery" or at least it is not one that is to be regarded as offensive. The primary objection to "double recovery" is that it makes a wrongdoer pay twice for the same item, and thus he pays more than would be proper. But in this situation, the wrongdoer pays only what he would have been obliged to pay had the Act never existed: a complete tort recovery. He pays no more because ... the insurer fails to intervene, and thus there is "double recovery" only in the sense that the employee might retain some additional amounts because the ... insurer failed to exercise the rights granted to it under the Act. (Footnotes omitted.)

In line with the above reasoning, we follow Brasseaux and reject the defendants' argument that awarding Mr. Howard his medical expenses will result in double recovery.

When a mistake of law forecloses factfinding, but where the record is otherwise complete, an appellate court should, if it can, render judgment on the record. LSA-C.C.P. art. 2164 ; Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La. 1980). As explained, the trial court legally erred in failing to award Mr. Howard the medical expenses DABM's insurer paid on his behalf. At the trial of this matter, Mr. Howard introduced evidence documenting that his medical expenses were $33,793. (R210-12) Because this record evidence substantiates the medical expenses, we amend the judgment to award Mr. Howard this amount.

CONCLUSION

In sum, after a de novo review, we conclude the trial court legally erred in failing to award Mr. Howard the $33,793 in medical expenses DABM's insurer paid on Mr. Howard's behalf. First, the LWCA specifically provides that Mr. Howard's receipt of workers' compensation benefits shall not affect his rights against the defendants, who are legally liable to pay damages for injuries Mr. Slaughter caused Mr. Howard. This specific directive of workers' compensation law prevails over the general rule that DABM's insurer's payment of Mr. Howard's medical expenses relieves the defendants of the solidary obligation they owe to Mr. Howard together with DABM for these expenses. Second, notwithstanding the LWCA, the collateral source rule overrides principles of solidarity in this case and prohibits the defendants from benefitting from DABM's insurer's payment of Mr. Howard's medical expenses. Applying the collateral source rule in this case will further the rule's major policy goal of tort deterrence. And, even though Mr. Howard's access to workers' compensation benefits did not diminish his patrimony, our jurisprudence requires that he, as the tort victim, gain the benefit of the collateral source rule, rather than the defendants, as tortfeasors.

Thus, for reasons expressed herein, we amend the February 15, 2017 judgment to award Mr. Howard $33,793 in medical expenses against Marcus Rene Slaughter; Garda CL Southeast, Inc.; and National Union Fire Insurance Company of Pittsburgh, Pa., in solido. This amount is in addition to the judgment's award of $3,900 in lost wages and $37,500 in general damages to Mr. Howard. We assess costs of this appeal to Marcus Rene Slaughter; Garcia CL Southeast, Inc.; and National Union Fire Insurance Company of Pittsburgh, Pa., in solido.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

Whipple, C.J. concurs: Consideration was given herein by virtue of the fact that appellant worked, earned, and obtained such benefits as an incident of and pursuant to his employment.

      The February 15, 2017 judgment stated that damages against the defendants would include "clerk costs and special costs in an amount to be determined by the Court on a motion to fix costs ...." Mr. Howard then filed a motion to fix costs with supporting evidence. On April 25, 2017, the trial court signed a second judgment against the defendants for "special costs in the amount of $5,064.64 and clerk costs ...." In his motion for appeal, Mr. Howard appealed from both the February 15 and April 25 judgments. The clerk of court prepared two separate records and this Court lodged two appeals-the appeal from the February 15 judgment under this Court's docket number 2017 CA 1221, and the appeal from the April 25 judgment under this Court's docket number 2017 CA 1222, also decided this day. This Court denied Mr. Howard's motion to consolidate the appeals but ordered that the appeals be assigned to the same panel and docket. Mr. Howard filed identical briefs in both appeals and plainly states that his sole challenge is to the trial court's denial of medical expenses as reflected by the February 15 judgment.


text:
    STATE of Louisiana v. Roderick WHITE
    2017 KA 1256
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 16, 2018
    Hillar C. Moore, III, District Attorney and Stacy Wright, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for Appellee, State of Louisiana
    Cynthia K. Meyer, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Defendant/Appellant, Roderick White
    BEFORE: WHIPPLE, CJ., McDONALD, and CHUTZ, JJ.
   McDONALD, J.

A grand jury indicted the defendant, Roderick White, with second degree murder, a violation of LSA-R.S. 14:30.1. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The trial court sentenced him to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.

FACTS

On the afternoon of January 6, 2015, Brandon Coleman was driving around the Scenic Highway area in Baton Rouge with three passengers, including the defendant. Nearby on Walnut Street, Gregory Spears was at his mother-in-law's house, selling CDs out of the trunk of his car. NaQuian Robinson drove up, got out, and bought some CDs from Mr. Spears. As the two men stood there talking, Mr. Coleman drove by and stopped at a nearby carwash. The defendant got out of the car, walked over to the two men, and asked Mr. Spears about some CDs. When Mr. Spears turned to look in his trunk, the defendant pulled a gun and tried to rob Mr. Robinson. The defendant and Mr. Robinson wrestled over the gun, and Mr. Robinson was shot multiple times.

The defendant ran down the street and cut through a yard to Chestnut Street, where Mr. Coleman picked him up and drove away. Mr. Robinson got into his car, drove a short distance, and crashed into a fence. His family took him to the hospital, where he died of his wounds that same day. Mr. Spears was unable to identify the shooter. When the police brought Mr. Coleman in for questioning, he implicated the defendant in Mr. Robinson's shooting. The defendant did not testify at trial.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the trial court erred in allowing the jury to hear the videotaped statement Brandon Coleman gave to police. Specifically, the defendant contends that Mr. Coleman's failure, at trial, to recall the events surrounding the shooting, or the giving of his videotaped statement, violated the defendant's right to confrontation, because Mr. Coleman could not be effectively or meaningfully cross examined about his videotaped statement.

According to Mr. Coleman's statement to police, Mr. Coleman was driving the black Toyota Camry, in which the defendant and two other people were passengers, before the defendant got out of the car and shot Mr. Robinson. After the shooting, the defendant ran down Walnut Street, cut through a yard, and ran to Chestnut Street (one street down and parallel to Walnut Street). Mr. Coleman drove the car to Chestnut Street and picked up the defendant. The defendant's movements immediately after the shooting were confirmed by Alexandria Edwards, who testified at trial that the front of her house faced Chestnut Street and the back of her house faced Walnut Street. After hearing gunshots, she looked out the window and saw someone running with a gun through the yard. She then saw the armed person jump into a black car on Chestnut Street.

In his statement, Mr. Coleman specifically disclosed that he heard the gunshots and that the defendant "did do it." Mr. Coleman did not see a gun when the defendant got out of the car, but Mr. Coleman saw the defendant with a gun when he got back in the car. When asked if he actually saw the defendant shoot Mr. Robinson, Mr. Coleman replied that he did not actually see the defendant shoot Mr. Robinson, but saw him shooting in that direction. When Mr. Coleman picked the defendant up on Chestnut Street, the defendant said he had shot himself in the leg. The defendant told Mr. Coleman not to bring him to the hospital.

At the defendant's trial, before Mr. Coleman took the stand, the trial court told him he had the right to testify as well as the right not to testify. Mr. Coleman was being charged as an accessory after the fact and had not yet been tried on that charge. Mr. Coleman told the trial court that he would testify. The prosecutor told the trial court that he anticipated a medical issue arising when Mr. Coleman took the stand. The prosecutor noted that Mr. Coleman had "had a fall" and that he "may or may not have some issues with the memory."

On direct examination, Mr. Coleman knew his age and his date of birth. He also knew he did not live in Baton Rouge anymore. When asked if he had experienced a traumatic incident in the last year or year-and-a-half, Mr. Coleman said he did not know. Mr. Coleman then followed up that he had first experienced memory issues around September of the previous year. Mr. Coleman explained that he was getting treatment in Florida for the memory issues. When asked about January 6, 2015, the day the defendant shot Mr. Robinson, Mr. Coleman stated that he did not remember anything about that incident. Mr. Coleman further stated he did not remember talking to the police about the shooting.

The prosecutor played a snippet from the beginning of Mr. Coleman's videotaped statement and asked Mr. Coleman if he recognized himself. Mr. Coleman testified, "Yeah, that's me." The prosecutor then sought to introduce Mr. Coleman's videotaped statement into evidence. Defense counsel objected to the playing of the video, arguing it violated the Confrontation Clause. According to defense counsel, "Clearly, this is not former testimony, because he was never under oath and I've never had an opportunity to cross-examine, for whatever reason." Apparently, because of Mr. Coleman's head injury and his alleged memory loss, defense counsel argued that he could not conduct a meaningful cross examination. The trial court overruled the objection, and Mr. Coleman's statement was played for the jury.

During defense counsel's brief cross examination of Mr. Coleman, the following exchange took place:

Q. Mr. Coleman-
A. Yeah.
Q. -Your father was in that taped statement. You talked to your father. Do you remember that?
A. Nah. I don't remember, but I see he was in there.
Q. Okay. What does your father do for a living? Is he a cop?
A. Yeah.
Q. He's a police officer?
A. Uh-huh.
Q. Okay. And to be clear for the record, you-you were 20 years old in 2015, because you're 22 now, right?
A. Right.
Q. So, you were 20 then, right?
A. Right.
Q. But to be quite honest, you have no recollection of any event in January of-the 6th of January of 2015?
A. Yeah. After September, I don't remember nothing.
Q. Okay.

On appeal, the defendant argues that the Sixth Amendment to the United States Constitution and Louisiana Constitution Article I, Section 16, guarantee an accused the right to confront and cross examine the witnesses against him. The defendant points out that, at trial, Mr. Coleman was unable to recall the events surrounding the shooting or giving the videotaped statement to the police. While defense counsel had the opportunity to cross examine Mr. Coleman, according to the defendant, the record in this case "shows there was no effective or meaningful cross-examination" of Mr. Coleman. The defendant asserts that defense counsel's inability to conduct a meaningful and effective cross examination of the witness against him resulted in the denial of his right to due process and confrontation.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause requires that testimonial statements can only be admitted as evidence at a criminal trial when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross examine the declarant. In footnote nine of its opinion, the Crawford court stated that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Crawford, 541 U.S. at 59 n.9, 124 S.Ct. at 1369 n.9. It further stated, "[t]he Clause does not bar admission of a statement as long as the declarant is present at trial to defend or explain it." Id. ; see State v. Davis, 13-237 (La. App. 5 Cir. 10/30/13), 128 So.3d 1162, 1168, writ denied, 13-2751 (La. 5/23/14), 140 So.3d 723.

Despite the defendant's argument regarding the lack of meaningful or effective cross examination, there is nothing in the Constitution so restrictive as to suggest that only meaningful or effective cross-examination would be tolerated under the law. In State v. Eley, 15-1925 (La. App. 1 Cir. 9/16/16), 203 So.3d 462, 470, writ denied, 16-1844 (La. 9/6/17), 224 So.3d 982-83, we addressed this issue:

In State v. Kennedy, 2005-1981 (La. 5/22/07), 957 So.2d 757, 775-78, rev'd on other grounds, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), the defendant argued that the admission into evidence of a videotaped statement of the victim violated the Confrontation Clause because she was unavailable for cross-examination due to lack of memory. The Kennedy Court 957 So.2d at 777, noted that under Crawford and California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1970), when the declarant appears at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. The Kennedy Court [ ] rejected the argument that the victim's poor memory rendered her unavailable for cross-examination despite her physical presence on the stand, noting that the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. [ Id. ], see State v. Graham, 2013-1806 (La. App. 1st Cir. 7/3/14), 148 So.3d 601, 608, rev'd on other grounds, 2014-1801 (La. 10/14/15), 180 So.3d 271 (per curiam).

The law, thus, requires only that the declarant be available at trial to testify. Mr. Coleman was available to testify and, in fact, testified at trial, subject to cross examination. On cross examination, Mr. Coleman did not refuse to testify, but only indicated that he did not remember the day the defendant shot Mr. Robinson or that he gave the videotaped statement to police. See Eley, 203 So.3d at 470 ; see also Graham, 148 So.3d at 608 (finding that, under Kennedy and Green, there was no confrontation clause violation in admitting a witness's prior recorded statement, where the witness was produced at trial, even when the witness had a complete lack of memory of the prior events).

In United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988), the Supreme Court opined that an opportunity for effective cross examination is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. "It is sufficient," the Owens court continued, "that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination ...) the very fact that he has a bad memory." Id. ; see Graham, 148 So.3d at 608-09.

Based on Crawford, Owens, Eley, and Graham, a declarant's appearance and subjection to cross examination at trial are all that is necessary to satisfy the right to confrontation, even if the declarant suffers from memory loss. See Davis, 128 So.3d at 1166-69 (The admission of an unsworn, out-of-court statement of a witness who implicated the defendant, but who claimed memory loss on the stand at trial, did not violate the defendant's right to confrontation, because this witness was sworn in at trial and answered questions posed to her; although she claimed she did not remember giving the statement to the police, she admitted the voice on the recorded statement sounded like her and, as such, the defendant was afforded an adequate opportunity to cross examine the witness). Accordingly, the trial court did not err in allowing Mr. Coleman's videotaped statement into evidence. The assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.


author: CRAIN, J.

text:
    FIRST BANK AND TRUST v. Elizabeth M. Coxe SHARP, John Traylor, and Carolyn Ratcliff Traylor
    NO. 2017 CA 0284
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 20, 2018
    Sherman Q. Mack, Matthew H. Todd, Albany, Louisiana, Attorneys for Plaintiff/Appellant, John Traylor
    Frank J. Divittorio, Hammond, Louisiana, Attorney for Defendant/Appellee, First Bank and Trust
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

John Traylor appeals a summary judgment dismissing his petition to annul a deficiency judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

First Bank and Trust is the holder of a promissory note secured by a mortgage and allegedly secured by a commercial guaranty signed by Traylor. After the maker of the note defaulted, First Bank used executory process to seize and sell the immovable property encumbered by the mortgage. The sale proceeds did not fully pay the indebtedness, so First Bank filed a petition for deficiency judgment against Traylor, seeking to enforce the commercial guaranty.

Traylor was personally served with the petition on February 2, 2012, but did not file responsive pleadings. A default judgment was confirmed against him on March 6, 2012, and notice of the judgment was mailed the next day. Traylor did not appeal the judgment or file a motion for new trial. In response to a motion filed by First Bank, Traylor subsequently appeared in court with counsel and submitted to a judgment debtor examination.

On April 22, 2016, almost two years after the judgment debtor examination, Traylor filed a petition seeking to annul the March 6, 2012 default judgment. According to Traylor's petition, First Bank, in confirming the judgment, (1) failed to introduce evidence establishing it was the holder in due course of the note, and more specifically, failed to prove it was the legal successor of the named payee; (2) failed to introduce the original instruments into evidence and, instead, attached the originals to the petition for executory process, which was not served on Traylor; and (3) failed to prove Traylor had any obligation under the guaranty, because the portion of the note secured by Traylor's guaranty was allegedly satisfied by the proceeds from the sheriff's sale. In reliance on the foregoing, Traylor alleged the default judgment is null for vices of form under Louisiana Code of Civil Procedure article 2002.

First Bank filed a motion for summary judgment seeking a dismissal of Traylor's petition, arguing, in relevant part, that a default judgment cannot be annulled based on the purported insufficiency of the evidence offered to confirm the judgment. In support of the motion, First Bank submitted copies of the exhibits used to confirm the default judgment, including an affidavit confirming personal service of the petition on Traylor, the preliminary default, an affidavit attesting to the amount due, the promissory note, and the commercial guaranty. Traylor filed no exhibits in opposition to the motion.

The trial court granted the motion, finding the grounds asserted by Traylor are not sufficient to support an action in nullity. In a judgment signed on August 29, 2016, the trial court dismissed the petition to annul with prejudice. Traylor appeals.

DISCUSSION

After an opportunity for adequate discovery, 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. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require that he negate all essential elements of the adverse party's claim, action, or defense, but rather to point to the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966D(1).

Traylor's nullity action is based on Article 2002A(2), which, in relevant part, provides that a final judgment shall be annulled if it is rendered against a defendant "against whom a valid judgment by default has not been taken." Article 2002 applies only to technical defects of procedure or form of the judgment. National Income Realty Trust v. Paddie, 98-2063 (La. 7/2/99), 737 So.2d 1270, 1271 ; Strain v. Premier Video, Inc., 99-0181 (La. App. 1 Cir. 3/31/00), 764 So.2d 983, 985 n.3. The failure to establish the prima facie case required by Louisiana Code of Civil Procedure article 1702 is not a vice of form. National Income Realty Trust , 737 So.2d at 1271 ; Strain, 764 So.2d at 985 n.3. A failure of proof must be raised in a motion for new trial or by appeal, not by an action for nullity. National Income Realty Trust, 737 So.2d at 1271 ; Strain, 764 So.2d at 985 n.3.

The evidence submitted by First Bank adequately points out an absence of factual support for one or more elements essential to Traylor's nullity claim. The evidence reflects personal service of the petition for deficiency judgment on Traylor, the absence of any responsive pleadings, and the confirmation of a default judgment after expiration of the applicable legal delays. Thus, to defeat the motion for summary judgment, Traylor had to produce factual support sufficient to establish the existence of a genuine issue of material fact or that First Bank is not entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966D(1).

Traylor produced no factual support for his claim. Instead, he relies on the argument that the evidence submitted by First Bank was not sufficient to confirm the default judgment. Specifically, Traylor contends the evidence failed to prove First Bank was the holder in due course of the note, or that the guaranty he signed secured payment of the actual note at issue. Traylor also maintains the evidence did not establish his liability under the guaranty because the proceeds of the sheriff's sale, according to Traylor, exceeded the amount of the guaranty.

Those contentions, however, do not establish defects in the form of the deficiency judgment or the procedure used to obtain it, as required to nullify a judgment under Article 2002. At best, if his assertions are accepted as true, Traylor has identified omissions in the evidence presented to confirm the default judgment, or affirmative defenses that could have been presented, but were not, in opposition to First Bank's claim. The lack of evidence is a failure of proof, not a vice of form under Article 2002. See National Income Realty Trust, 737 So.2d at 1271 ; Strain, 764 So.2d at 985 n.3. Likewise, a defendant cannot seek to annul a judgment simply because he failed to present a valid defense that could have been pled before the judgment. Chromaceutical Advanced Technologies, Inc. v. Lundy & Davis, L.L.P., 08-653 (La. App. 3 Cir. 2/4/09), 4 So.3d 227, 229, writ denied, 09-0428 (La. 5/22/09), 9 So.3d 146. The alleged lack of evidence to support the default judgment is not a valid basis to nullify the judgment under Article 2002.

Traylor also argues the deficiency judgment is null because he was neither named as defendant in the executory proceeding nor served with notice of the proceeding. This argument has no merit. When, as here, a surety has no interest in the mortgaged property, the law does not require the surety be named in, or notified of, an executory proceeding effecting the seizure and sale of the encumbered property. See Cameron Brown South, Inc. v. East Glen Oaks, Inc., 341 So.2d 450, 458-59 (La. App. 1 Cir. 1976) ; Security National Trust v. Moore, 639 So.2d 373, 376-77 (La. App. 2 Cir. 1994) ; Colonial Bank v. Pier Five, Inc., 469 So.2d 1029, 1035 (La. App. 4 Cir.), writ denied, 475 So.2d 363 (La. 1985). The failure to name Traylor as a defendant in the executory proceeding, or otherwise notify him of that proceeding, is not a valid basis to nullify the default judgment rendered in the deficiency judgment action.

In a similar argument, Traylor asserts the maker of the note is a necessary party to the deficiency judgment action; therefore, because the maker was not named in the action, the judgment is absolutely null. This argument likewise has no merit. A creditor may sue the surety, alone, without joining the principal obligor. See La. Civ. Code art. 3045, Revision Comment (c); Katz v. Innovator of America, Inc., 552 So.2d 724, 726 (La. App. 1 Cir. 1989). Because the maker of the note was not a necessary party to the deficiency judgment action, the failure to sue that party is not a valid basis to nullify the default judgment.

Finally, Traylor asserts the deficiency judgment should be annulled under Louisiana Code of Civil Procedure article 2004, which permits nullification of a judgment obtained "by fraud or ill practices." A judgment is the product of fraud or ill practices when (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) enforcement of the judgment would be unconscionable or inequitable. Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La. 10/16/01), 800 So.2d 762, 766. An action for nullity based on fraud or ill practices, however, is not a substitute for an appeal; the purpose of the action is to prevent an injustice that could not have been corrected through a new trial or appeal. See Expert Oil & Gas, L.L.C. v. Mack Energy Co., 16-0068 (La. App. 1 Cir. 9/16/16), 203 So.3d 1080, 1083. The party seeking annulment for fraud or ill practices must show that some fraud or ill practice by the other party prevented the assertion of available defenses. Harriss v. Archives Grill, LLC, 51,298 (La. App. 2 Cir. 4/5/17), 217 So.3d 1203, 1210.

In support of this argument, Traylor again cites the purported lack of evidence establishing his liability under the guaranty. The undisputed facts confirm Traylor was personally served with the petition for deficiency judgment and, therefore, had notice of the proceeding and an opportunity to contest the claim. Traylor failed to take advantage of that opportunity and allowed a default judgment to be entered against him. It is not unconscionable or inequitable to enforce a default judgment against a defendant who had a valid defense but failed to timely assert it. Green Tree Servicing, LLC v. Edwards, 17-214, 232 So.3d 688, 694-95, 2017 WL 5474256, *4 (La. App. 5 Cir. 11/15/17).

Based upon our de novo review, the trial court did not err in granting summary judgment to First Bank, dismissing Traylor's petition to annul with prejudice.

CONCLUSION

The August 29, 2016 judgment is affirmed. All costs of this appeal are assessed to John Traylor.

AFFIRMED.

      The August 29, 2016 judgment also denied, as moot, an exception of prescription filed by First Bank.

      Traylor does not contend, nor does the record indicate, First Bank did anything to impair the value of the encumbered property, which, under certain circumstances, can extinguish or reduce a surety's liability. See La. Civ. Code art. 3062.