author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Gregory DE GRUY
    NO. 2016-KA-0891
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 5, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Orleans Parish, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/AP-PELLEE
    Robert E. Jones, IV, 380 Carondelet Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

|, Defendant, Gregory De Gruy, was charged by bill of information with one count of aggravated assault with a firearm, in violation of La. R.S. 14:37.4. Defendant entered a plea of not guilty and elected a trial by judge. Following a one-day bench trial, defendant was convicted of aggravated assault, a responsive verdict to the charged offense. After a hearing on defendant’s motion for post-verdict judgment of acquittal, which the trial court denied, defendant was sentenced to three months in Orleans Parish Prison, all of which was suspended, three months inactive probation, and ordered to pay a fine and court costs. Defendant now appeals his conviction. Upon review of the record in light of the applicable law, we find no merit in defendant’s assignments of error on appeal. Accordingly, we affirm defendant’s conviction.

STATEMENT OF FACTS

The State charged defendant with aggravated assault with a firearm upon the victim, Emmanuel Henry, III, on June 5, 2015. At trial, the following testimony and evidence was presented.

|2The seventeen-year-old victim, Emmanuel Henry, III (“Emmanuel”), testified that on June 5, 2015, around 9:00 p.m., he was walking from a friend’s house to his home at 4726 Bundy Road. Emmanuel stated that he had been playing football that evening and was wearing a tight, white t-shirt and shorts. As he was walking on the sidewalk along Bundy Road, about a block from his house, Emmanuel saw defendant retrieving mail from a mailbox. As Emmanuel got closer, defendant was standing at the mailbox and holding a gun towards him; Emmanuel heard defendant say, “keep it moving, son. I’ll knock your head in the dirt.” Emmanuel immediately put both his hands in the air and told defendant: “I’m just trying to get home.” Emmanuel then heard his father yell at defendant from down the block, saying: “Hey, what are you doing?” Emmanuel kept walking towards his father as defendant got into a car in the driveway and sped off, driving the wrong way on a one-way street. Emmanuel’s father then called the police, who arrived and took a report.

When asked whether defendant had pointed the gun at him, Emmanuel stated, “yes,” and said the gun was facing his stomach; he then indicated in court how defendant had held the gun. Emmanuel testified that he did not know why defendant pointed the gun at him. He stated he was just walking home, and he did not make any aggressive or threatening gestures toward defendant. When he heard defendant say “I’ll knock your head in the dirt,” and he saw the gun pointed at him, Emmanuel believed that defendant would shoot him “if I was to try something or anything.” When asked how he felt during this incident with defendant, |,sEmmanuel testified: “I was scared. [... ] I felt like [defendant] was going to shoot me.”

Emmanuel Henry, Jr. (“Mr. Henry”) testified that he is Emmanuel’s father and he was at 4726 Bundy Road on June 5, 2015. About 9:00 p.m. that night, Mr. Henry had just spoken to Emmanuel on the phone and was standing in the driveway waiting for him to return home. Mr. Henry saw Emmanuel walk around the corner onto Bundy Road about a block away from where Mr. Henry was standing. At the same time, Mr. Henry noticed defendant, who owned the house four houses down, getting mail from his mailbox with a gun underneath his arm. As Emmanuel walked by defendant, Mr. Henry saw Emmanuel pause and put his hands up in the air. Mr. Henry began to approach them and saw defendant holding the gun in his hand pointed towards Emmanuel. Upon seeing this, Mr. Henry yelled at defendant: “What are you doing? That’s my son.” Mr. Henry told Emmanuel to keep walking towards him and, once Emmanuel got past the defendant, defendant got into a gold BMW parked in the driveway and drove off in the wrong direction on the one-way street. Immediately after the incident, Mr. Henry retrieved his cell phone and called 911. Mr. Henry stated that after the incident his son was “shaken up” and “[n]er-vous bad.”

On cross-examination, Mr. Henry testified that he could not hear any words exchanged between Emmanuel and defendant, but he did not see Emmanuel make any aggressive gestures toward defendant at any time. Mr. Henry stated that he did | ¿see Emmanuel put his hands in the air and then lift up his shirt, as if to show defendant that he did not have any weapons. Mr. Henry could not estimate how long the interaction between his son and defendant lasted. He also acknowledged that another neighbor was outside and closer to defendant’s house when the incident occurred.

Shatasha Johnson, an opefator for the New Orleans Police Department (“NOPD”), briefly testified for the purpose of authenticating the 911 incident recall sheet and,audio recording of the 911 call received on June 5, 2015. Thereafter, the 911 recording was published to the trial court.

On the 911 recording, the caller identifies himself as Emmanuel Henry, Jr. Mr. Henry can be heard reporting the incident as follows: “My son was just coming from around the corner and the neighbor down the street, he [defendant] pulled a gun out on my son [... ] just now and jumped into his car and pull[ed] off.” When the operator asks for the name of the neighbor, Mr. Henry replies: “I don’t even know his name, ma’am. He has a house on Bundy Road. And this guy.. .my son was just coming from around the corner, coming from by his friend’s house. I’m watching him come from around the corner and walk down the street. I’m watching him get on the side from the man cause he see the gun and the man started pointing a gun at him.” Mr. Henry reports that the incident happened outside the neighbor’s house at 4758 Bundy Road and that his son lives at 4726 Bundy Road. Mr. Henry also tells the operator that the neighbor does not live at the house on Bundy Road and only comes by to cheek on his property. The |soperator then asked Mr. Henry to provide a description of the neighbor, the car he was driving, and the direction in which Mr. Henry last saw the car.

NOPD Detective Charles Love testified that he conducted the investigation into the incident reported in the 4700 block of Bundy Road on June 5, 2015. When he arrived at the scene of the reported incident, Det. Love spoke with Officer Sartan, the responding officer, and then spoke with the alleged victim, Emmanuel, and Mr. Henry. Based on the statements he obtained, Det. Love determined that the owner of the house at 4758 Bundy Road had perpetrated an aggravated assault upon Emmanuel. Det. Love used his NOPD mobile data terminal to obtain a name and photograph of the owner of the house, defendant. Det. Love sent the photograph to the Louisiana State Police to have a six-person photographic lineup prepared, and he arranged for Emmanuel to meet with Det. Guient at the Seventh District Station to view the lineup. Det. Love later learned that Emmanuel made a positive identification of defendant from the photographic lineup. Based on the statements and identification, Det. Love obtained an arrest warrant for defendant for the offense of aggravated assault. At that point, Det. Love’s investigation was concluded.

NOPD Det. Dorjius Guient testified that he met with Emmanuel at the -Seventh District Station on June 9, 2015, at approximately 5:30 p.m. to present the six-person photographic lineup. Det. Guient identified the envelope and photographic lineup presented to Emmanuel and he explained the procedure that he | ¿followed for presenting it. Det. Guient testified that Emmanuel identified the photograph of defendant as the person who pointed a gun at him on June 5,2015.

NOPD Det. James Kish testified that he executed the arrest warrant for defendant. At the scene of the arrest, Det. Kish confiscated a firearm belonging to defendant with his permission. Det. Kish then transported defendant to the Seventh District Station and conducted a video-recorded interview with defendant. Prior to questioning, Det. Kish informed defendant of his Miranda rights. Defense counsel stipulated that defendant gave a voluntary statement to Det. Kish. At that time, defendant’s video-recorded interview was played for the trial court.

At the beginning of the interview, Det. Kish informs defendant that he was arrested pursuant to a warrant for aggravated assault and that he is accused of “pulling a gun on somebody in front of your house” on Friday, June 5, at 9:00 p.m. Det, Kish asks defendant if he has ever pulled a gun on anyone and the defendant replies that he has never done so. Defendant states that he has been an Orleans Parish Sheriffs Office Reserve Deputy since 1984 and has a commissioned firearm, which is the one that Det, Kish confiscated from defendant’s truck. Defendant repeatedly states that he has no idea what the accusation and his arrest are about. Det. Kish asks defendant if he has ever had any problems or confrontations with anyone in his neighborhood on Bundy Road. Defendant states that he recalls one recent night at about 9:30 p.m. when he went to his house with his girlfriend to check the mail, and he recounted the following: “I was checking my mail and this guy just came out of nowhere and started talking to me and I told |7him, sir just get away from me, I don’t know you, get away from me.” Det. Kish asks again whether defendant got into a confrontation or pulled a gun on that person or anyone that defendant could recall. Again, defendant denied such accusation, but stated, “the only thing I can remember is the guy coming out of nowhere and I said leave me alone, I don’t know you.” Det. Kish then left the room for several minutes to take a phone call. Upon returning, he asks defendant why someone would pick him out of a six-person photographic lineup and say that he pulled a gun. Defendant states: “Well I’m just saying the guy that the other night when I was checking my mail, the guy that I told get away from me I guess that he’s the only one, that’s the only thing that happened a couple of days ago.” Det. Kish asks if defendant was armed with his gun at the time, and defendant admits that he had his gun on his person that night. Det. Kish then questions defendant as follows:

Det. Kish: But at no point, you’re saying at no point you pulled that weapon out.
Defendant: I didn’t pull the weapon out on the guy, I didn’t pull it out on him.
⅜‡⅜
Det. Kish: Ok, that’s what I’m going with, so you’re saying at no point in time you pulled it out, pointed it, anything, you never showed it?
Defendant: I never pointed it at nobody, none of that, never did that, no.
Det. Kish: Was it concealed? Where was it on your person?
Defendant: Well, to be honest with you, when I got out the car, cause you know, living in that neighborhood is kinda [sic] bad, |sok. When I got out the car that night, you know, it’s 9:40 at night, I literally, I walked out the car with the gun in my hand, but it was just in my hand, it was in my right hand.
Det. Kish: So you did have it in your hand?
Defendant: Yeah, it was in my hand but I didn’t point it at nobody.

Defendant also stated that his girlfriend, Dr. Jan Cooper, was with him that night, and she was in the car, her gold Mercedes, when this occurred. Det. Kish stated that he would talk with her and ask what she saw. Det. Kish also confirmed with defendant that the gun confiscated from his truck was the one he had with him on the night in question. Finally, Det. Kish asked defendant why he did not say in the beginning of the interview that he got out of the car with the gun in his hand. Defendant replied that he was “just nervous,” he has never been arrested before, and he repeated that he didn’t pull the gun out on anyone, because it was already in his hand.

Defense counsel called two witnesses to testify at trial. Dr. Jan Cooper testified that she is defendant’s girlfriend of fifteen years and, since Hurricane Katrina, defendant has been living at her house but still owns a house on Bundy Road. On the evening of June 5, 2015, she and defendant had gone out to dinner and stopped at a store; then, defendant wanted to check the mail at his house on Bundy Road before going back to her house. Defendant drove her car to his house, pulled into the driveway, and he got out while she remained in the car. Dr. Cooper explained that defendant’s house is the second from the comer of Bundy Road and | ¡¡Hammond Street, but the lot on the corner is a vacant lot. While she waited in the car, she saw a man [Emmanuel] walking at a brisk pace on Hammond and turn the corner onto Bundy Road towards them. She watched Emmanuel as he approached; she saw his right hand in his pocket and it appeared that he was holding something up to his chest. Then, she saw Emmanuel walk towards defendant, who was standing at the mailbox, and stop. At this point, she turned to her left to look behind the car to see what was happening. Dr. Cooper stated that, at first, she was concerned that Emmanuel meant to rob them, but it appeared to her that defendant and Emmanuel were just standing there talking. She testified that she could see Emmanuel’s right side and his back and defendant’s left side but not his right side or his right arm. While the two men were speaking to one another, Dr. Cooper saw another man, Mr. Henry, standing about two or three houses up the street on the sidewalk frantically waiving towards defendant and Emmanuel. When she looked back at defendant, he was almost back to the car. Defendant got in the car and quickly drove off in the wrong direction on Bundy Road.

Dr. Cooper testified that she did not see defendant with a gun that night. She stated that she knew defendant often had his gun with him, but she did not notice if he had it with him when he got out of the car that night. She admitted that she could not hear anything that was said by either defendant or Emmanuel, but she did not see defendant point a gun at Emmanuel.

^J^Officer Michael Sartan was the final witness called by defense counsel. Ofc. Sartan testified that he was the initial investigating officer at the scene of the incident on June 5, 2015. Ofc. Sartan acknowledged that he spoke to “an independent witness” to the incident, but Ofc. Sartan was not permitted to testify regarding any statements made by that non-testifying witness.

In consideration of the above testimony and evidence presented at trial, the trial court found defendant guilty of aggravated assault, a responsive verdict to the charged offense.

DISCUSSION

Sufficiency of the evidence

By his first assignment of error on appeal, defendant argues that the State failed to prove the essential elements of the offense of aggravated assault beyond a reasonable doubt and, thus, there is insufficient evidence to sustain his conviction.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, the appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that all of the elements of the offense had been proven beyond a reasonable doubt. Id.; State v. Tate, 01-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928.

The reviewing court must consider the whole record, just as the rational trier of fact considers all of the evidence, and the actual trier of fact is presumed to have |nacted rationally. State v. Mussall, 523 So.2d 1305, 1310 (La. 1988). “If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted.” State v. Egana, 97-0318, p. 6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 228; State v. Green, 588 So.2d 757, 758 (La. App. 4th Cir. 1991); Mussall, supra. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott, 12-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So.3d 501, 508, citing State v. Johnson, 619 So.2d 1102, 1109 (La. App. 4th Cir. 1993). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier of fact. Id., citing State v. Brumfield, 93-2404 (La. App. 4 Cir. 6/15/94), 639 So.2d 312, 316. “Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness.” Id., citing State v. Jones, 537 So.2d 1244, 1249 (La. App. 4th Cir. 1989). “Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, citing State v. Legrand, 02-1462, p. 5 (La. 12/3/03), 864 So.2d 89, 94.

In this case, defendant argues that the evidence is insufficient to support his' conviction for aggravated assault, which is defined as an assault committed with a | ^dangerous weapon, because the State failed to prove the elements of assault. An assault is defined “as an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. In order to support a conviction for assault, the State must prove beyond a reasonable doubt: (1) the intent-to-scare mental element (general intent); (2) conduct by defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim. State in the Interest of K.M., 14-0306, p. 9 (La.App. 4 Cir. 7/23/14), 146 So.3d 865, 872, citing State v. Tatom, 463 So.2d 35, 37 (La App. 5th Cir. 1985); State v. Roebuck, 543 So.2d 573, 574 (La. App. 4th Cir. 1989). Defendant asserts that the evidence is insufficient to prove any of the three elements.

With regard to the first element, defendant argues that there is insufficient evidence to indicate that he intended to place the victim, Emmanuel, in imminent fear of receiving a battery. Defendant contends that the evidence indisputably establishes that he went to his house that night to retrieve his mail and he legally carried his weapon with him as a means of protection and precaution.

Assault requires proof of only general criminal intent or a showing that the defendant, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2); State v. Hill, 35,013, pp. 5-6 (La.App. 2 Cir. 9/26/01), 796 So.2d 127, 131-32; State v. Johnston, 207 La. 161, 20 So.2d 741, 744-45 (1944). “An offender has the requisite intent when the prohibited result may have reasonably been expected to follow from the offender’s voluntary act, regardless of any subjective desire on his part to have accomplished the result.” State v. Amos, 15-0954, p. 11 (La.App. 4 Cir. 4/6/16), 192 So.3d 822, 829, citing State v. Smith, 07-2028, p. 10 (La. 10/20/09), 23 So.3d 291, 298.

The record establishes that the charge against defendant was based on the allegation that defendant pointed his gun at Emmanuel and telling him, “I’ll knock your head in the dirt.” During trial, Emmanuel gave direct testimony to that effect and indicated to the court the manner in which defendant was pointing the gun. Mr. Henry corroborated Emmanuel’s testimony, testifying that he witnessed defendant pointing a gun at Emmanuel. The trial court also heard Mr. Henry’s consistent statement on the 911 call recorded right after the incident occurred. The act of pointing a weapon at another person and threatening bodily harm is sufficient to establish intent of aggravated assault. State v. Hill, 47,568, p. 11 (La.App. 2 Cir. 9/26/12), 106 So.3d 617, 624 (“Aiming a pistol at a victim from point blank range and threatening to „blow his brains out’ satisfies the level of proof required for conviction, if believed by the trial court.”); State v. Connors, 432 So.2d 308 (La. App. 5th Cir. 1983) (aggravated assault occurred when defendant intentionally raised the gun as if to aim it at victim and thereby-placing victim in reasonable apprehension of receiving a battery). Although defendant argues that his voluntary statement and Dr. Cooper’s testimony support his contention that he ludid not point his gun at Emmanuel, the trial court was in the best position to determine witness credibility and weight of the evidence. Based on the testimony that defendant pointed the gun and made a threatening statement to Emmanuel, we find the record contains sufficient evidence to establish the intent-to-scare element of assault.

As to the second and third elements of assault—the victim’s reasonable and actual apprehension of bodily harm—the defendant asserts that Emmanuel’s cross-examination testimony reveals that Emmanuel did not fear any bodily harm from defendant as long as he did not do anything to threaten defendant. In support of this assertion, defendant cites the following excerpt of Emmanuel’s testimony:

Q: Now, one of the things that stood out in your direct testimony that you only— you only thought he was going to shoot you if you tried something. Do you remember saying that in your direct testimony?
A: Correct.
Q: So when you say “tried something,” like if you tried to do [defendant] some harm? What do you mean by “trying something”? He only was going to shoot you if you tried something.
A: Right. You know, maybe if I would have probably tried to walk like, you know, around him or something like that. He probably thought in his mind I was trying to do him something.
Q: So as long as you didn’t do him something, you were pretty much free to go?
A: I figuring I was, you know—I was minding my business. He was minding his. I was trying to get to my house.
Q: The main thing is, as long as you didn’t try nothing, you didn’t think he was going to shoot you, did you?
A: Correct. But I had no—you know, I didn’t think—I wouldn’t try nothing.

| ^Defendant also cites two cases in support of his argument that there is insufficient evidence of the victim’s reasonable and actual apprehension of receiving a battery; however, we find both cases are factually inapposite to the instant case.

In State in Interest of Tatom, 463 So.2d 35 (La. App. 5th Cir. 1985), the Court reversed the juvenile defendant’s conviction for aggravated assault upon finding that the State failed to establish the third element—actual apprehension of receiving a battery—when the victim testified that he was not afraid that defendant would shoot him. Specifically, the Court found as follows:

[T]he victim explicitly testified he was never afraid throughout the entire confrontation and further that when defendant pointed the gun at him he challenged defendant to shoot him because he did not believe defendant had the guts to do it. Neither the State nor the record provides any circumstantial evidence that the victim exhibited any behavior indicative of apprehension.
Id. at 37.

In State v. Rideau, 05-0462 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, this Court reversed one of defendant’s convictions for aggravated assault upon a peace officer, because the victim of that aggravated assault did not testify at trial. This Court held that the fact of whether the victim of an aggravated assault had reasonable apprehension of receiving a battery must be proven by direct evidence of that victim’s state of mind.

In contrast to those two cases, the record of this case provides direct testimony from the vietim that he had reasonable and actual apprehension of receiving a battery. Although defendant highlights Emmanuel’s statement that he 11fibelieved defendant would shoot him “if [Emmanuel] was to try something,” we find that Emmanuel’s direct testimony in full context provides ample direct evidence of his reasonable and actual apprehension of being shot by defendant. We note the following excerpts of Emmanuel’s testimony:

Q: Now, when you first saw [defendant], what were you doing?
A: I was walking on the sidewalk.
Q: And what happened when you approached [defendant] on the sidewalk? Where was he at?
* * *
A: Well, when I was on the corner, I saw him at his mailbox. [... ] as I was walking, he, you know, still was at his mailbox... just waiting for me to pass.
Q: Did you notice if [defendant] had a gun on him at the time?
A: I didn’t see the gun until, you know, I got a little closer.
Q: [... ] And what happened after you got a little closer to [defendant]?
A: As I was walking, he was still at his mailbox. I looked and he looked and then he was like “keep it moving, son. I’ll knock you head in the dirt” and I was like, “hey, I ain’t trying to do nothing. I’m just trying to go home,” and I put both of my hands up.
Q: Why did you put both of your hands up?
A: Because he had a weapon.
Q: And what was he doing with the weapon when he said he was going to knock your head in the dirt?
A: He just had it [... ] facing like my stomach or like—you know, just like that in his hand (indicating).
Q: So he had the gun pointed at you?
A: Yes.
|17Q; And what did you think he meant with the gun pointed at your stomach when he said that statement he was going to knock you—knock your head in the dirt?
⅝ * *
A: I believed he was going to shoot me if I was to try something or anything.
Q: How did you feel when he pointed the gun at you?
A: I was scared because [... ] I felt like he was going to shoot me.

Emmanuel’s direct testimony of his actions, reaction, and state of mind establish that he was in actual apprehension of being shot by defendant. In addition, Mr. Henry’s testimony and his call to 911 to immediately report this incident provide additional evidence of the second element that Emmanuel had an objectively reasonable apprehension of receiving a battery due to defendant’s conduct. See State v. Boutte, 10-1257, pp. 5-6 (La.App. 3 Cir. 5/11/11), 65 So.3d 793, 796-97 (although victim did not testify that he saw the gun or feared being shot, victim’s testimony regarding his actions immediately after the gunshot—that he immediately complied with defendant’s demands and called the police as soon as defendant left—was sufficient evidence to establish victim’s apprehension of receiving a battery). Thus, we find that the evidence presented to the trial court was sufficient to prove the second and third elements of assault.

iisUpon review of the testimony and evidence presented to the trial court, we find the record contains sufficient evidence of all three elements of the offense of aggravated assault.

Self-defense

In his next assignment of error, defendant argues that the State failed to prove that his conduct was not justifiable as an act of self-defense. Defendant asserts that he acted reasonably under the circumstances of the late night encounter with a stranger, Emmanuel, whom he claims was acting in a suspicious and threatening manner.

Under Louisiana law, “[t]he fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct.” La. R.S. 14:18. In addition, the use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A).

When a defendant asserts that he acted in self-defense in a homicide case, it is settled law that the State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. State v. Jefferson, 04-1960, p. 10 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, 587-88, citing State v. Osborne, 00-0345, p. 7 (La.App. 4 Cir. 12/6/00), 775 So.2d 607, 611; State v. Taylor, 03-1884, p. 7 (La. 5/25/04), 875 So.2d 58, 63. In a non-homicide case, however, the | ^Louisiana jurisprudence is not settled definitively on the issue of who has the burden of persuasion in proving self-defense. Jefferson, 04-1960, p. 10, 922 So.2d at 588; State v. Boudreaux, 08-1504, pp. 30-32 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, 1161-62.

In State v. Freeman, 427 So.2d 1161, 1163 (La. 1983), the Louisiana Supreme Court stated that “in the non-homicide situation, the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; a subjective inquiry into whether the force was apparently necessary.” The Court then indicated, in dicta, that the burden of persuasion in proving self-defense in a non-homicide situation “could arguably [... ] be upon the defendant since a subjective inquiry is involved.” Id. However, the Court concluded that it need not resolve the issue, “for irrespective of who bears the burden in this case, and even assuming that the State has the burden of proving beyond a reasonable doubt in this non-homicide situation that defendant did not act in self-defense, we conclude that the State has carried its burden of proof.” Id.; See also, State in Interest of A.W., 13-1198 (La.App. 4 Cir. 3/13/14), 137 So.3d 728. (finding that, regardless of who carries the burden of proof on self-defense in a non-homicide case, the State carried its burden of proving defendant committed a battery, and the evidence and testimony was undisputed that the victim did not threaten defendant with physical contact at any time during the incident); Boudreaux, 08-1504, p. 32, 48 So.3d at 1162 (concluding that, whether the State or defendant bore the burden of proving that | ^defendant did not act in self-defense, there was sufficient evidence to prove beyond a reasonable doubt that defendant did not act in self-defense).

Similarly, in this case, we find that irrespective of who bears the burden of proving that defendant acted in self-defense in this non-homicide situation, any rational trier of fact could have concluded beyond a reasonable doubt that defendant did not act in self-defense. The testimony at trial was undisputed that Emmanuel was unarmed and he made no verbal or physical threats to defendant at any time during the incident. Also, despite defendant’s claim that he felt threatened and acted out of fear for his personal safety, we note that defendant failed to report the encounter to police and he was less than forthcoming about the details of this incident during his interview with Det. Kish. Viewing all the testimony and evidence in the light most favorable to the prosecution, we find sufficient evidence for the trial court to conclude beyond a reasonable doubt that defendant did not act in self-defense.

Exclusion of Impeachment Evidence

In his final assignment of error, defendant argues that the trial court erred by excluding relevant impeachment evidence pursuant to La. C.E. Art, 607(D)(2). Defendant argues that he was denied the opportunity to introduce extrinsic evidence contradicting Emmanuel’s testimony, when the trial court refused to allow Ofc. Sartan to testify regarding a statement made to him by another neighbor who witnessed the incident.

|2iOfc. Sartan testified that he spoke to an independent witness to the incident—an unidentified neighbor—and she conveyed to Ofc. Sartan what she heard that night. When the defense questioned Ofc. Sartan regarding the content of the statement given by that non-testifying witness, the State objected on the basis that defense was attempting to elicit hearsay. The defense countered that Ofc. Sartan’s testimony regarding the neighbor’s statement was allowed under La. C.E. Art. 607(D)(2), which permits extrinsic contradictory evidence to impeach a witness’s credibility. The trial court sustained the State’s hearsay objection.

Louisiana law permits the impeachment of a witness in a criminal trial by his or her prior inconsistent statements and evidence contradicting the witness’ testimony. See La. C.E. Art. 607(D)(2). “If the probative value outweighs any undue prejudice, extrinsic evidence of the prior statement is admissible, not to prove the truth of the matter asserted, but to establish the fact of contradiction as a means of impeaching the witness’s general credibility.” State v. Ross, 11-1668, p. 6 (La.App. 4 Cir. 6/4/14), 144 So.3d 1118, 1123; see State v. Cousin, 96-2973 (La. 4/14/98), 710 So.2d 1065, 1071 (“When the testimony of a witness in court is inconsistent with a prior statement by the witness, the party calling the witness may be able to use the prior statement to impeach the witness-that is, to diminish his or her credibility.”).

In this case, however, the statement made by the independent witness to Ofc. Sartan was not proper impeachment evidence under La. C.E. Art. 607(D)(2) because it was not a prior inconsistent statement or contradictory evidence of any Isstestimony given by Ofc. Sartan. Here, the defense sought to introduce a statement made to Ofc. Sartan by another witness as a means of contradicting Emmanuel’s testimony of what defendant said to him. However, since the witness who made the statement did not testify at trial and was not subject to cross-examination concerning the statement, we find no error in the trial court’s ruling sustaining the State’s hearsay objection. See La. C.E. Art. 801(D)(1).

CONCLUSION

For the foregoing reasons, we find no merit in defendant’s assignments of error and we affirm defendant’s conviction and sentence.

AFFIRMED

      . Also, our review revealed no errors patent on the face of the record. La. C.Cr.P. Art. 920.

      . Mr. Henry testified that he resides at 3265 Belford Avenue but his son, Emmanuel, resides at 4726 Bundy Road.

      . Dr. Cooper identified a photograph of the house. The photograph shows a driveway along the side of the house next to the vacant lot, and the mailbox for the house appears to be on the driver side of the driveway between the sidewalk and the street.

      . La. R.S. 14:37.

      S. A battery is defined, in pertinent part, as "the intentional use of force or violence upon the person of another.” La. R.S. 14:33.

      . Also, in State v. Blaise, 504 So.2d 1092 (La. App. 5th Cir. 1987), the Fifth Circuit found that circumstantial evidence alone was sufficient to sustain defendant's conviction for aggravated assault. The Court noted that the lack of testimony from the victim as to whether or not she was apprehensive was not necessarily dispositive of the issue. The Court reviewed the victim’s actions when the defendant came into the barroom brandishing a gun and determined that her actions clearly established her apprehension, including, as in this case, the victim's action of immediately reporting the incident to the police.


source: Caselaw Access Project

author: AMY, Judge

license: Public Domain

text:
    Melody P. SMITH v. CIRCLE K STORES, INC., et al.
    WCA 17-225
    Court of Appeal of Louisiana, Third Circuit.
    04/05/2017
    Gloria A. Angus, Angus Law Firm, L.L.C., Post Office Box 2337, Opelousas, Louisiana 70571, (337) 948-8800, COUNSEL FOR PLAINTIFF/APPELLANT: Melody P. Smith
    Lance Edward Harwell, Staines & Ep-pling, 3500 North Causeway Boulevard, Suite 820, Metairie, Louisiana 70002, (504) 838-0019, COUNSEL FOR DEFENDANTS/ APPELLEES: Circle K Stores, Inc., Ace American Insurance Company
    Court composed of Sylvia R. Cooks, Marc T. Amy and Billy H. Ezell, Judges.
   AMY, Judge

11 This court issued, sua sponte, a rule ordering Plaintiff-Appellant, Melody P. Smith, to show cause, by brief only, why the appeal in this matter should not be dismissed as premature. For the reasons given herein, we hereby dismiss the appeal.

This case involves a workers’ compensation action which Plaintiff filed against her employer, Circle K Stores, Inc., and its workers’ compensation insurer, Ace American Insurance Company (hereinafter, “Defendants ). On September 21, 2013, Plaintiff went to a Capital One Bank in Lafayette, Louisiana, to deposit funds for her employer. While in her car in the bank’s parking lot, Plaintiff was the victim of a robbery. The perpetrator rear-ended Plaintiffs car, and shot into her car. When Plaintiff crawled over to the opposite side of the car, the perpetrator went to the opposite side of the car and shot out the glass. As a result of the incident, Plaintiff sustained neck, back, and knee injuries. Defendants have been paying workers’ compensation benefits to Plaintiff; however, a dispute arose over the issue of treatment for Plaintiffs knee injury. Plaintiff filed a disputed claim seeking penalties and attorney’s fees for Defendants’ failure to authorize the evaluation of her knee injury. On April 25, 2016, a trial was held for Plaintiffs disputed claim, and the matter was taken under advisement. Subsequently, on September 1, 2016, the workers’ compensation court rendered an oral ruling denying Plaintiffs claim for penalties and attorney’s fees and finding that Defendants had not acted arbitrarily and capriciously. A judgment to that effect was ultimately signed on November 14, 2016, and the notice of judgment was mailed on November 16, 2016.

|2Meanwhile, in October 2016, before the written judgment was signed, Plaintiff filed a motion for new trial. Later,' on November 1, 2016, Plaintiff filed a motion for devolutive appeal, and the order of appeal was signed on November 7, 2016. The appeal record was lodged in this court on March 6, 2017. Because the workers’ compensation court has not' rendered a ruling on Plaintiffs motion for new trial, we issued a rule for Plaintiff to show cause why her appeal should not be dismissed as premature.

In her response to this court’s rule to show cause order, Plaintiff argues that her appeal was filed timely; however, she does not address the prematurity issue and the motion for new trial. Defendants also filed a response to this court’s rule to show cause order. In their response, Defendants state that they are in favor of the instant appeal being dismissed as premature because the workers’ compensation court has not yet ruled on the motion for new trial.

Louisiana Code of Civil Procedure Article 2087(D) provides that “[a]n order for appeal is premature if- granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict.” Because the workers’ compensation court has not held a hearing or rendered a judgment with regard to the motion for new trial which Plaintiff filed in October 2016, we find that the workers’ compensation court has not been divested of jurisdiction as set forth in La.Code Civ.P. art. 2088. See Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. As such, the order of appeal was granted prematurely, and this court lacks jurisdiction over the appeal.

Having concluded that we lack jurisdiction over this appeal, we find that the appeal must be dismissed and that the case should be remanded to the workers’ compensation court for consideration of Plaintiffs motion for new trial.

.| .APPEAL DISMISSED. CASE REMANDED.


author: Judge Rosemary Ledet

text:
    Darnell LEWIS v. Arthur MORRELL, et al
    NO. 2016-CA-1055
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 5, 2017

      Darnell Lewis, #327412, David Wade Correctional Center, H-2/B, 670 Bell Hill Road, Homer, LA 71040, PRO SE PLAINTIFF/APPELLANT
    David Fink, BERNARD L. CHARBON-NET, JR., A PROFESSIONAL LAW, CORPORATION, 365 Canal Street, Suite 1155, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods)
   Judge Rosemary Ledet

_JjThis is a mandamus action seeking to obtain documents pursuant to the Louisiana Public Records Law, La. R.S. 44:1, et seq. Darnell Lewis—an inmate appearing pro se—filed this mandamus action seeking various records relating to his 1998 criminal convictions. Mr. Lewis named three defendants—the Superintendent of Police of the New Orleans Police Department (the “NOPD”); the Orleans Parish District Attorney, Leon Cannizzaro (the “ODA”); and the Criminal District Court’s Clerk of Court, Arthur Morrell (“Mr. Mor-rell”) (collectively the “Defendants”). From the trial court’s judgment dismissing this action, Mr. Lewis appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, Mr. Lewis was convicted of armed robbery and attempted second-degree murder. Thereafter, he was adjudicated a second felony offender on the armed robbery conviction and sentenced to serve 160 years at hard labor without benefit of parole, probation, or suspension of sentence on the multiple bill. On the attempted second-degree murder conviction, he was sentenced to serve 50 years at | ¡¡hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently with each other. On appeal, Mr. Lewis’ convictions and sentences were affirmed. State v. Lewis, 99-2891 (La.App. 4 Cir. 10/4/00), 771 So.2d 330 (unpub.), writ denied, 01-0102 (La. 11/21/01), 802 So.2d 626.

On April 27, 2011, Mr. Lewis filed this mandamus action in Orleans Parish Civil District Court. In his petition, Mr. Lewis averred that he has made multiple requests for the initial police report to the NOPD, in particular, and to the Defendants, in general. He averred as follows:

Movant has requested the police report of what occurred on the scene of the crime. Crime scene at 6733 Chef Hwy and Dale Street, 5 September 1997, at times 2014 [8:14 p.m.] ....
Movant requests] the police report to the Unit and Officer who responded] and was present at the crime scene, at 6733 Chef Hwy and Dale Street at 2014.
Movant has requested] repeatedly for the report that was taken and written by the officer(s) whom were present at the crime scene. However, the Police Department has continually responded as follows:
Police Department has sent reports to Movant that are not requested:
[ (i) Officer Neyrey’s report stating he located himself to the victim’s home at 8:28 P.M.; and
ls(ii) Detective Patrolia’s report stating he too went to the victim’s home later at 12:30 A.M.] ...
Before Officer Neyrey[’s] report at 8:28 at the victimf’s] home, a police unit and officer had _to go to the crime scene and meet with the victim and witnesses, because the dispatch log indicate^] that a unit was at the crime scene at 2014. (emphasis in the original).

Based on the above averments, Mr. Lewis requested that the trial court order the Defendants to produce the “on the scene report of the incident” and that it order an evidentiary hearing.

Prom the date of the filing of the petition—-April 27, 2011—until August 26, 2015—the date of correspondence from Mr. Lewis—there was no activity in this mandamus action. On August 25, 2015, correspondence from Mr. Lewis—labeled “Application for Writ of Mandamus”—-was filed into the record. In his August 26, 2015 correspondence, Mr. Lewis referred to a July 23, 2015 public records request on the NOPD seeking, among other things, the initial police report from the officer who arrived on the scene at 8:14 p.m.

On January 8, 2016, the trial court denied Mr. Lewis’ request in his original petition for an evidentiary hearing on his writ of mandamus. In April 2016, a status conference was held; Mr. Lewis was allowed to participate by phone. At that conference, Mr. Lewis’ sole request was for the production of the initial police report. The trial court directed the ODA to provide copies of all the police reports Lprepared during the course of the investigation of Mr. Lewis’ criminal case. Mr. Lewis acknowledges that the ODA complied with the trial court’s" directive. By correspondence dated June 18, 2016, Mr. Lewis informed the trial court that the NOPD did not want to give him the initial police report and-that all he was asking for in this mandamus action was his "Initial Police Report,” which would show him “what Officer or Officer(s) interviewed and investigated the victim Gerald Scott, and witness Ms. Dionne Scott, on the scene of the crime.”

On July 22, 2016, the trial court set a second status conference. This conference was held on August 4, 2016; and Mr. Lewis again was allowed to participate by phone. The only defendant that participated in this conference was the ODA. On September 27, 2016, the trial court, referencing the August 4, 2016 conference, rendered the following judgment:

This court previously ruled on Petitioner’s motion, but held the subsequent conference on August 4, 2016 and reiterated the following:
IT IS ORDERED, ADJUDGED, AND DECREED that the Petitioner’s Petition for Writ of Mandamus is MOOT. The Defendants have provided the complete record request to the Petitioner, and therefore, his request has been satisfied.

This appeal followed.

DISCUSSION

|fiThe gist of Mr. Lewis’ contentions on appeal is that the trial court erred in dismissing his mandamus action. An appellate court reviews a trial court’s judgment denying a writ of mandamus under an abuse of discretion standard. Hatcher v. Rouse, 16-0666, p. 3, n. 2 (La.App. 4 Cir. 2/1/17), 211 So.3d 431, 2017 WL 431780 at *1 (quoting Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566, p. 13 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037). Additionally, this Court has noted the following:

“A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law ... to compel the delivery of the papers and effects of the office to his successor.” La. C.C.P. Art. 3863. A writ of mandamus is “an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief.” Hoag v. State, 04-0857, p. 6 (La. 12/01/04), 889 So.2d 1019, 1023. The remedy “must be used sparingly ... to compel action that is clearly provided by law.” Hamp’s Const., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, pp. 3-4 (La.App. 4 Cir. 12/01/10), 52 So.3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153. “Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised.” Hamp’s, 10-0816, p. 4, 52 So.3d at 973. “The remedy is not available to command the performance of an act that contains any element of discretion, however slight.” Id.

A.M.E. Disaster Recovery Servs., Inc. v. City of New Orleans, 10-1755 at p. 8 (La. App. 4 Cir. 8/24/11), 72 So.3d 454, 459; see also Humane Society of New Orleans v. Landrieu, 13-1059, p. 3 (La.App. 4 Cir. 2/26/14), 135 So.3d 1195, 1197 (quoting A.M.E. Disaster Recovery Servs., supra); see also La. C.C.P. Art. 3861 (defining mandamus as “a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.”).

“That a writ of mandamus is the proper procedural means by which to require a public officer to produce public records (unless an exception applies) is evident both from the Public Records Law and case law.” Hatcher, 16-0666 at 211 So.3d 431, 2017 WL 431780 at *2; Vandenweghe v. Parish of Jefferson, 11-52, pp. 12-13 (La.App. 5 Cir. 5/24/11), 70 So.3d 51, 59 (noting that “mandamus, which under the Public Records Law, has a specific procedure in place to determine the nature of the requested items, is an appropriate remedy for ordering the release of public records.”). Indeed, the Public Records Law contains its own mandamus remedy, which is set forth in La. R.S. 44:35 A. This statute expressly provides for the use of a writ of mandamus to compel compliance with the public Records Law; it states:

Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.

La. R.S. 44:35 A.

A mandamus proceeding brought under the public records law is a civil action. Wells v. Criminal Dist. Court of Orleans Parish, 16-0181, p. 3 (La.App. 4 Cir. 8/24/16), 198 So.3d 283, 285 (citing Landis v. Moreau, 00-1157, p. 8 (La. |72/21/01), 779 So.2d 691, 696). Generally, “[a] mandamus action for production of a public record requires a contradictory hearing.” Lens v. Landrieu, 16-0639, p. 4 (La.App. 4 Cir. 12/14/16), 206 So.3d 1245, 1248 (citing Fussell v. Reed, 95-0398, p. 3 (La.App. 1 Cir. 11/9/95), 664 So.2d 1214, 1216). When, however, the requirements for invoking the mandamus remedy under La. R.S. 44:35 are not met, such a hearing has not been required. See Wallace v. Ware, 94-2204, pp. 5-6 (La.App. 1 Cir. 6/23/95), 657 So.2d 734, 737; Chapman v. Dist. Attorney, 05-0577, p. 4 (La.App. 1 Cir. 3/29/06), 934 So.2d 128, 130; Revere v. Taylor, 613 So.2d 738, 739 (La. App. 4th Cir. 1993) (holding that a contradictory hearing was not required when the document request failed to describe a specific public record in the custodian’s control and reasoning that “it would have been a vain and useless waste of the trial court’s time to order a contradictory hearing for the custodian to show cause why he was refusing to produce records that he did not possess”); see also Frank L. Maraist, 1A LA. CIV. L. TREATISE, CIV. PROC.— SPECIAL PROCEED., § 1.5 (2016) (noting that “a judge may notice on his own motion that a petition fails to state a cause of action, and in such a case, requiring the issuance of the writ seems useless” and citing Baldone v. Terrebonne Parish Registrar of Voters, 15-1356 (La.App. 1 Cir. 9/21/15), 182 So.3d 1005).

Mandamus Remedy Requirements

The jurisprudence has identified the following multiple requirements for invoking the mandamus remedy under the Public Records Law, including the following six requirements.

First, a request must be made. As this court has noted, “La. R.S. 44:32(A) of the Louisiana Public Records Act provides that the custodian of records ‘shall present any public record to any person of the age of majority who so requests.’ ” Weils, 16-0181 at p. 7, 198 So.3d at 287 (emphasis in original). “Inherent in the public records law is the requirement that a person seeking public records actually make a request to the custodian of the records he seeks.” Id. Stated otherwise, the initial step is that “[a] request for access to a public record must be made to the custodian of the record. A written or electronically submitted request is necessary for subsequent legal action in the event the custodian denies the request.” Dianne M. Irvine, What is a Public Record?, 10 Around the Bar 9 (Feb. 2015).

Second, the requestor must be a “person.” The general rule set forth in La. R.S. 44:31 is that “any person of the age of majority” may make a public records request. By statute, certain individuals have been excluded from the definition of a “person” under the Public Records Law. La. R.S. 44:31.1. Under this statutory exception, a “person,” for purposes of the Public Records Law, is defined to exclude an individual: “(1) who is a convicted felon; (2) who is in custody pursuant to the sentence for that felony; (3) who has exhausted his appellate remedies; and (4) who is not limiting the grounds for his request to those items to be used to file for post-conviction relief under La.C.Cr.P. Art. 930.3.” Muhammad v. Office of Dist. Attorney for Parish of St James, 16-9, p. 12 (La.App. 5 Cir. 4/27/16), 191 So.3d 1149, 1157.

Third, the request must be made to a “custodian.” The term “custodian” is defined to mean “the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.” La. R.S. 44:1 A(3). The Public Records Law “confers upon the court jurisdiction to enjoin a specific entity: the custodian.” Vandenweghe, 11-52 at p. 5, 70 So.3d at 54.

Fourth, the document requested must be a “public record.” The term “public record” is broadly defined. See La R.S. 44:1 A(2). The document at issue here—an initial report—is defined, by statute, as a public record. La. R.S. 44:3 | t (/providing that “the initial report of the officer or officers investigating a complaint, but not to apply to any followup or subsequent report or investigation, ... shall be a public record.”); Cormier v. Public Records Request of Di Guilio, 553 So.2d 806, 807 (La. 1989) (noting that “[u]nder La.R.S. 44:3(A)(4)(a), these initial reports are public records, and the requesting party is thus entitled to copies of these reports.”).

Fifth, the document requested must exist. Courts have “refused to impose a duty on public bodies to ‘create’ documents not already in existence.” Jack M. Weiss and Mary Ellen Roy, OPEN GOVERNMENT GUIDE: OPEN RECORDS AND MEETINGS LAWS IN LOUISIANA, 16 (6th ed. 2011) (citing Nungesser v. Brown, 667 So.2d 1036, 1037 (La. 1996)). Indeed, the enforcement provisions of La. R.S. 44:35 presuppose the existence of the records in the office of the custodian. Revere v. Taylor, 613 So.2d 738 (La. App. 4th Cir. 1993).

Sixth, and finally, there must be a failure by the custodian to respond to the request. This requirement is implicit from the fact that it is a custodian’s failure to respond to a request for a public record that triggers the right to bring a mandamus action. Muhammad, 16-9, p. 10, 191 So.3d at 1156. Should the custodian refuse to allow access to the public records, the custodian must defend his action in a contradictory hearing. As noted earlier, however, such a contradictory hearing is unnecessary when the requirements for invoking the mandamus remedy under La. R.S. 44:35 A are not met.

Inin this case, the ODA contends that none of these requirements are met. Because we find three requirements are not met, we pretermit analyzing the other three—whether Mr. Lewis is a “person;” whether one or more or all of the Defendants is the “custodian;” and whether the document requested is a “public record.” We thus focus our analysis on the other three requirements—whether Mr. Lewis made a “request;” whether the document requested exists; and whether the Defendants failed to respond.

A request

In his petition, Mr. Lewis failed to identify a particular request to which a particular defendant failed to respond. In his appellate brief, Mr. Lewis cites his requests in his 1998 criminal proceedings, including his defense counsel’s pre-trial discovery requests. Indeed, he contends that during his criminal proceedings he made “several requests for these specific public records.” This court, however, recently rejected this same argument in Wells, supra, reasoning as follows:

Wells alleges in his application for writ of mandamus that the appellees denied his request for certain public records. However, the record before us contains no evidence of a public records request made by Wells and served on the appellees or any other purported custodian of records. The record instead reflects that Wells filed numerous motions for production of documents, motions to enforce, and motions for contempt, all in his criminal case and under his criminal docket number, along with several corresponding writ applications to this Court and the Supreme Court relative to those |12rulings. We do not construe these criminal court filings as public records requests, and we have identified no other Louisiana court which has done so. A motion filed in a criminal proceeding is not the proper procedural vehicle to establish a right to records under the public records law.

Wells, 16-0181 at pp. 7-8, 198 So.3d at 287-88. Likewise, the record in this case contains no request for public records on which this mandamus action is based. As such, Mr. Lewis has not established this fact—that he made a request.

Moreover, as the ODA points out, the document setting forth a public records request is necessary for the following two reasons: (i) to determine if Mr. Lewis is the one who made the request and thus has a right of action; and (ii) to determine the scope of the request by identifying exactly what records were requested. Apparently, Mr. Lewis views his petition for mandamus as his civil public records request. Even assuming, arguendo, Mr. Lewis made such a request, there are two additional, interrelated problems with Mr. Lewis’ writ of mandamus. We address those two problems together.

An existing document and a failure to respond

In his Petition for a Writ of Mandamus, Mr. Lewis requested that the trial court order the Defendants to produce the “on the scene report of the incident” at his cost. In support of this request, Mr. Lewis cited Hilliard v. Litchfield, 01-1987 (La. App. 1 Cir. 6/21/02), 822 So.2d 743, in which the appellate court reversed the trial court and ordered the chief of police to produce the initial report of the officer or officers investigating the complaint.

| iaIt is undisputed, as noted earlier, that an “initial report” is a public record. The term “initial report,” however, is statutorily defined by La. R.S. 44:3 A(4)(b) to mean a document setting forth the following items:

• A narrative description of the alleged offense, including appropriate details thereof as determined by the law enforcement agency;
• The name and identification of each person charged with or arrested for the alleged offense;
• The time and date of the alleged offense;
• The location of the alleged offense;
• The property involved;
• The vehicles involved; and
• The names of investigating officers.

The police reports that the ODA has produced to Mr. Lewis contain all the above items required to be included in an “initial report.” La. R.S. 44:3. The jurisprudence has held that statements of “on the scene witnesses” are not included in the meaning of an “initial report.” State v. Meyers, 95-750, 96-35, 96-395, p. 18 (La. App. 5 Cir. 11/26/96), 683 So.2d 1378, 1387. Under R.S. La. 44:3 A(4), “such report only needed to contain those items listed in the statute [which] ... does not require that the initial report contain statements made at the scene by witnesses.” Meyers, 95-750 at pp. 19-20, 683 So.2d at 1387.

In this case, the trial court made a finding that the Defendants had provided Mr. Lewis with all the police report records that were available. Mr. Lewis’ contention is that there are additional “initial report(s).” This court addressed a similar contention recently in the Hatcher case. There, the plaintiff disputed the coroner’s response to his public records request that the coroner was unable to |14identify any records based on the information provided by the plaintiff. Finding the coroner adequately complied with the Louisiana Public Record Law, we reasoned as follows:

The custodian of public records cannot be expected to produce records that it cannot identify. To the contrary, the custodian’s statutory duty is “to provide immediate access to records that are available.” All. for Affordable Energy v. Frick, 96-1763, p. 7 (La.App. 4 Cir. 5/28/97), 695 So.2d 1126, 1132 (emphasis added). As Dr. Rouse was unable to identify records pertaining to Mr. Hatcher’s request, we find no abuse of the trial court’s discretion in denying the request for a Writ and dismissing it. As the Louisiana Supreme Court once found, “[u]nder these circumstances [of this case], a mandamus would not serve a useful purpose and should not issue,” Reynolds v. Louisiana Highway Comm’n, 163 La. 125, 111 So. 622, 624 (La. 1927).

Hatcher, 16-0666 at 211 So.3d 431, 2017 WL 431780 at *5 (emphasis in original).

The same logic applies here. The Defendants cannot be expected to produce initial police reports that are unavailable or cannot be identified. The Defendants have produced .the initial police report and a supplemental report. Under these circumstances, the Defendants have complied with the Louisiana Public Records Law. The trial court thus did not abuse its discretion in dismissing Mr. Lewis’ mandamus action as moot.

As previously noted, to trigger the right to a mandamus remedy, there must be failure of a custodian to respond. No such failure was established to have occurred in this case. Moreover, since one or more of the six requirements we have identified for invoking the mandamus remedy under the Public Records Law are not met here, we find no error in the trial court’s failure to hold a contradictory hearing before dismissing this action as moot.

DECREE

11fiFor the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . See La. R.S. 44:1,1 (noting that the short title of this Chapter is “Public Records Law”).

      . In this court's unpublished opinion on appeal, the factual background of the underlying crime is set forth as follows:
      At 8:09 P.M. on September 5, 1997, the New Orleans Police Department 911 operator received a report that Gerald Scott had just been robbed at a Citgo gas station/convenience store at the corner of Chef Menteur Highway and Dale Street....
      After an initial report was completed by a patrol officer, the case was assigned to Detective David Patrolia for further investigation. He testified that he spoke to the reporting officer sometime after 10:00 p.m. ...

      . The attachments to his petition included correspondence dated February 21, 2011, directed to the NOPD requesting, among other things, the initial incident report. As the ODA points out, the record is void of the date of the original public record request to the ODA; nor did Mr. Lewis attach the original public records request to his petition or subsequent filings.

      . The gap in activity in the mandamus action, as the ODA points out, was apparently due to Mr. Lewis' difficulty in perfecting his motion to proceed in forma pauperis on the Petition for Writ of Mandamus. In 2015, Mr. Lewis filed a second in forma pauperis affidavit. On September 25, 2015, the trial court granted Mr. Lewis' Pauper Order, allowing him to proceed in forma pauperis in this case. The Petition for Mandamus—which was originally filed on April 27, 2011—was served on the Defendants—one defendant was served on January 29, 2016; the other two defendants were served on February 11, 2016.

      . The record also contains other public record requests by Mr. Lewis to the Defendants, including a request for the 911 audio recording tape. Mr. Lewis, however, does not raise any issue regarding those other requests on this appeal. The only item Mr. Lewis raises is the initial police report.

      . As the ODA points out, it is the only defendant who made an appearance in this matter in the trial court. Likewise, it is the only defendant who filed a brief in response to this appeal.

      . The record contains no previous ruling by the trial court.

      . Mr. Lewis’ motion for appeal was filed before the trial court rendered its written reasons for judgment.

      .In his notice of intent to appeal, Mr. Lewis asserts that he is "unsatisfied” with the proceedings. In his appellate brief,. Mr. Lewis asserts the following two assignments of error:
      • His constitutional right to due process was violated when the Defendants failed to comply with the Public Records Act pursuant to La. R.S. 44:1, ef seq.

      • The reason the ODA misled the CDC Judge Kern A. Reese by sending him the wrong police reports is because the NOPD and the ODA is [sic] in collusion not to give appellant or any court house the police reports appellant is [sic] requesting because they are well aware that the contents of the requested police reports can and will prove appellant's actual innocence without a reasonable doubt.

      . La. R.S. 44:31.1 provides as follows:
      ' For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted His appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3, Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record to determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3.

      . The jurisprudence, however, has recognized that the lapse of the time period for post-conviction relief, alone, is not a bar to obtaining public records. See McGraw v. Richland Parish Clerk of Court, 42,029, pp. 7-8 (La.App. 2 Cir. 4/11/07), 954 So.2d 912, 916 (noting that "[¡Inmates are rightfully entitled to obtain copies of records related to their convictions, even after the time period for filing for post-conviction relief has passed” and cautioning that "the law does not sanction abuse of the procedure for obtaining such records by allowing repetitive requests for records that have already been provided.”).

      . This is consistent with the principle that the right of access to public records is a fundamental right guaranteed by La. Const. Art. XII, § 3. See Johnson v. Stalder, 97-0584, p. 3 (La.App. 1 Cir. 12/22/98), 754 So.2d 246, 248. Because it is a fundamental right, the jurisprudence has held that "[a]ny request for a public record must be analyzed liberally in favor of free and unrestricted access to the record.” Title Research Corp. v. Rausch, 450 So.2d 933, 937 (La. 1984). "The burden is on the party seeking to prevent disclosure to prove that withholding of a public record is justified.” Stalder, 97-0584, at pp. 3-4, 754 So.2d at 248.

      . La. R.S. 44:1 A(2)(a) defines a "public record” as follows:
      All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records”, except as otherwise provided in this Chapter or the Constitution of Louisiana.

      .In Nungesser, the Supreme Court reversed the appellate court’s decision requiring the Commissioner of Insurance to provide data that did not exist in the specified form. The Supreme Court reasoned that the Commissioner "was not required to produce a list which did not exist and properly refused Nun-gesser’s request.” 667 So.2d at 1037

      . The ODA contends that Mr. Lewis lacks a right of action to request records relating to his prosecution. Citing La. R.S. 44:31.1, the ODA contends that Mr. Lewis is not a "person” entitled to access the public records he requested. According to the ODA, "Lewis is a convicted and sentenced felon who has exhausted his appellate remedies and therefore is not a ‘person’ under the Louisiana Public Records Law.”

      . The ODA contends that it is not the custodian of records for the police reports Mr. Lewis requested; rather, the NOPD is the custodian.

      .The ODA contends that it is unclear exactly what documents Mr. Lewis is requesting. The ODA notes that Mr. Lewis fails to identify whether the requested records are actual police reports or handwritten notes of the NOPD officer at the crime scene, and this distinction is important because La. R.S. 44:3 D provides an exemption for certain handwritten notes.

      . The jurisprudence has imposed another limitation; only the person who actually made the request can bring an action to enforce it. Vourvoulias v. Movassaghi, 04-0262 (La.App. 1 Cir. 2/11/05), 906 So.2d 461.