text:
    AP INTERIORS, LLC d/b/a The Paint Store v. CORYELL COUNTY TRADESMEN, LLC, et al.
    NO. 2017-CA-0230
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    Kevin C. O'Bryon, O'BRYON & SCHNABEL, PLC, 1010 Common Street, Suite 1950, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE, AP INTERIORS LLC
    Lloyd N. Shields, Michael S. Blackwell, Jessica R. Derenbecker, 650 Poydras Street, Suite 2600, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLANTS, ROY ANDERSON CORPORATION, AND TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Regina Bartholomew-Woods)
    Judge Terri F. Love This appeal arises from a lien placed on a high-rise building by an unpaid material supplier after the termination of the remodeling/construction project. The general contractor utilized a surety to secure a lien release to free the building's title. The material supplier then filed suit for the monies due. Subsequently, the material supplier filed a motion for summary judgment against the general contractor and surety for the unpaid balance. The trial court found that the lien was valid and granted the motion for summary judgment, casting the general contractor and surety liable for the unpaid balance.
    The general contractor and surety appealed contending that the material supplier failed to comply with the notice of nonpayment requirements contained in the Public Works Act and that genuine issues of material fact remained.
    Our res nova interpretation of La. R.S. 9:4802(G)(3) finds that the material supplier was required to give notice of nonpayment to the owner and general contractor. We find that the material supplier failed to meet its burden of proof on the motion for summary judgment, as it lacked evidence of notice. Accordingly, we reverse the motion for summary judgment granted by the trial court and remand for further proceedings.
    FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    225 Baronne Street ("project") in New Orleans, a 549,746 square-foot property, was renovated and reconstructed. Roy Anderson Corporation ("RAC") was the general contractor on the project. RAC subcontracted with Ronald Franks Construction Company, LLC ("RFC"). RFC then sub-subcontracted its work to Coryell County Tradesmen, LLC ("CCT"). CCT purchased materials for the project from material supplier, AP Interiors, LLC d/b/a The Paint Store ("AP"). CCT allegedly failed to pay AP for approximately $40,236.45 in materials.
    As a result, AP filed a Statement of Claim and Privilege ("lien") for $41,443.23 in unpaid materials. RAC obtained a bond from Travelers Casualty and Surety Company of America ("Travelers") to remove the lien and clear title to the project. Subsequently, AP filed a petition against CCT, RFC, National American Insurance Company ("National"), RAC, and Travelers, seeking the unpaid principal balance plus attorney's fees and costs.
    AP filed a Motion for Summary Judgment against RAC and Travelers contending that no genuine issues of material fact existed and that it was entitled to recover $40,236.45. Following a hearing, the trial court found that AP's lien was valid. The trial court granted AP's Motion for Summary Judgment and cast RAC and Travelers in judgment for $40,236.45, plus interest from the date of the demand until paid. RAC and Travelers' suspensive appeal followed.
    RAC and Travelers contend that the trial court erred by failing to apply La. R.S. 9:4802(G)(3) and because AP failed to meet the burden of proof on summary judgment.
    SUMMARY JUDGMENT
    Appellate courts review the grant of a motion for summary judgment using the de novo standard of review. Descant v. Herrera , 03-0953, p. 8 (La. App. 4 Cir. 12/22/04), 890 So.2d 788, 793. "Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Id.
    "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions." Carter v. Baver , 02-0765, p. 2 (La. App. 4 Cir. 5/29/02), 821 So.2d 496, 498. "The summary judgment procedure is favored and shall be construed to accomplish these ends." Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).
    "The burden of proof rests with the mover." La. C.C.P. art. 966(D)(1). "Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court ... the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). Rather, the mover must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1).
    INTERPRETATION OF LA. R.S. 9:4802(G)(3)
    RAC and Travelers assert that the trial court erroneously granted AP's Motion for Summary Judgment because AP failed to comply with the notice of nonpayment requirements of La. R.S. 9:4802(G)(3) of the Louisiana Private Works Act and failed to meet its burden of proof for a summary judgment. Nestled within AP's Motion for Summary Judgment is the interpretation of La. R.S. 9:4802(G)(3). As there are no other cases interpreting the provisions of La. R.S. 9:4802(G) together, we are tasked with conducting a res nova interpretation of La. R.S. 9:4802(G)(3).
    "The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government." Anderson v. Ochsner Health Sys. , 13-2970, p. 3 (La. 7/1/14), 172 So.3d 579, 581. "The paramount question in all cases of statutory interpretation is legislative intent; ascertaining the reason that triggered the enactment of the law is the fundamental aim of statutory interpretation." Id. , 13-2970, p. 4, 172 So.3d at 581. "The rules of statutory construction are designed to unveil and enforce the intent of the legislature." Id. "Legislation is the solemn expression of legislative will; thus, interpretation of a statute involves primarily a search for the legislature's intent." Id.
    The Louisiana Revised Statutes provide that "[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language." La. R.S. 1:3. Further, "[t]echnical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning."
    La. R.S. 1:3. "When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit." La. R.S. 1:4.
    In addition to these general statutory interpretation guidelines, the Private Works Act requires specific considerations. This Court opined that:
    The Private Works Act was enacted to facilitate construction of improvements on immovable property and does so by granting to subcontractors, among others, two rights to facilitate recovery of the costs of their work from the owner with whom they lack privity of contract. The first right is a statutory "claim"-the right to personally sue the owner for the amount that is owed-that is provided by La. R.S. 9:4802(A)(1) ; particularly, this statute provides that subcontractors have a claim against the owner and a claim against the contractor to secure payment of the price of their work. The second right is the privilege provided by La. R.S. 9:4802(B), which states that "[t]he claims against the owner shall be secured by a privilege on the immovable on which the work is performed."
    Byron Montz, Inc. v. Conco Const., Inc. , 02-0195, p. 6 (La. App. 4 Cir. 7/24/02), 824 So.2d 498, 502. "Because the PWA is in derogation of general contract law, it must be strictly construed." Buck Town Contractors & Co. v. K-Belle Consultants, LLC , 15-1124, p. 5 (La. App. 4 Cir. 4/6/16), 216 So.3d 981, 984. "However, it should not be construed so as to defeat the purpose of the statute, which is to protect materialmen, laborers and subcontractors who engage in construction projects." Id. Moreover, "[t]heir provisions must be interpreted rigidly and the privileges conferred thereby are not to be extended or enlarged either by implication or the application of equitable considerations." Sec. Homestead Ass'n v. Schnell , 232 So.2d 898, 900 (La. App. 4th Cir. 1970).
    Generally, we begin with the language contained in the statute. Billeaudeau v. Opelousas Gen. Hosp. Auth. , 16-0846, p. 10 (La. 10/19/16), 218 So.3d 513, 520. The Louisiana Private Works Act provides that sellers of movables:
    have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract ... for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the
    immovable, or are consumed in machinery or equipment used at the site of the immovable.
    La. R.S. 9:4802(A)(3). Further, La. R.S. 9:4802(G) reads as follows:
    G. (1) For the privilege under this Section or R.S. 9:4801(4) to arise, the lessor of the movables shall deliver notice to the owner and to the contractor not more than ten days after the movables are first placed at the site of the immovable for use in a work. The notice shall contain the name and mailing address of the lessor and lessee and a description sufficient to identify the movable property placed at the site of the immovable for use in a work. The notice shall state the term of rental and terms of payment and shall be signed by the lessor and lessee.
    (2) For the privilege under this Section or R.S. 9:4801(3) to arise, the seller of movables shall deliver a notice of nonpayment to the owner at least ten days before filing a statement of his claim and privilege. The notice shall be served by registered or certified mail, return receipt requested, and shall contain the name and address of the seller of movables, a general description of the materials provided, a description sufficient to identify the immovable property against which a lien may be claimed, and a written statement of the seller's lien rights for the total amount owed, plus interest and recordation fees. The requirements of this Paragraph (G)(2) shall apply to a seller of movables sold for use or consumption in work on an immovable for residential purposes.
    (3) In addition to the other provisions of this Section, if the seller of movables has not been paid by the subcontractor and has not sent notice of nonpayment to the general contractor and the owner, then the seller shall lose his right to file a privilege or lien on the immovable property. The return receipt indicating that certified mail was properly addressed to the last known address of the general contractor and the owner and deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered, regardless of whether the certified mail was actually delivered, refused, or unclaimed satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first. The provisions of this Paragraph shall apply only to disputes arising out of recorded contracts. (Emphasis added).
    Section (2) contains the clause "for residential purposes." The clause has been interpreted as a limitation on application that requires the sellers of movables to comply with section (2) only if the work at issue was on an immovable "for residential purposes." Bear Indus., Inc. v. Hanover Ins. Co. , 17-0301, pp. 7-8 (La. App. 1 Cir. 1/4/18), --- So.3d ----, ----, 2018 WL 301332, *4. See also Standard Materials L.L.C. v. C & C Builders, Inc. , unpub., 10-0250 (La. App. 1 Cir. 12/22/10), 2010 WL 5479903. Contrariwise, section (3) does not contain the residential limitation.
    AP maintains that a proper interpretation of La. R.S. 9:4802(G)(3) requires the imputation of the residential limitation of section (2) into (3). However, the statute specifically provides that the residential limitation applies to the requirement contained in (G)(2): "The requirements of this Paragraph (G)(2) shall apply to a seller of movables sold for use or consumption in work on an immovable for residential purposes."

      The amount sued upon differs from the amount listed in the lien.

      Another motion for summary judgment and numerous exceptions were filed, but are not pertinent to this appeal.

   Moreover, even though section (3) begins with the phrase, "In addition to the other provisions of this Section," section (3) continues by enumerating additional burdens placed on the sellers of movables; thereby removing the possibility that section (3) simply adds to the requirements contained in sections (1) and (2). Section (1) does not apply to sellers of movables. Additionally, the Louisiana Legislature could have easily incorporated the residential limitation into section (3), as was done in section (2). However, the Legislature did not do so. As such, we find that La. R.S. 9:4802(G) is clear and unambiguous.

We find that the strict meaning of section (3) requires the sellers of movables to provide notice of nonpayment to the general contractor and owner in order to retain the "right to file a privilege or lien." Reading the statute alternatively would enlarge the rights granted to the materialmen, which would contravene our guidelines. See Sec. Homestead Ass'n , 232 So.2d at 900.

AP also contends that notice was not required because no notice requirement is contained in La. R.S. 9:4822. La. R.S. 9:4822 is entitled "[p]reservation of claims and privileges" and cites to 9:4802 numerous times. Section A of § 4822 also contains the following language: "the persons to whom a claim or privilege is granted by R.S. 9:4802 shall ...." Thus, it is clear that the two statutes must be read in conjunction with one another. § 4822 enumerates the time period in which parties granted a right to a claim or privilege, pursuant to § 4802, must file the claim or privilege. Conversely, § 4802(G)(3) contains a specific requirement placed upon sellers of movables whose products were consumed during work on an immovable or incorporated into the immovable during construction.

"Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible, but that if there is a conflict the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character." Delta Dev. Co., Inc. v. Plaquemines Par. Comm'n Council , 451 So.2d 134, 138 (La. App. 4th Cir. 1984). Harmonizing these two statutes is not problematic. When read in congruence, § 4802(G)(3) places additional requirements upon a party attempting to secure a valid lien if the party was 1) a seller of movables, 2) unpaid by the subcontractor, 3) dealing with a recorded contract, and 4) the materials supplied were used to improve an immovable. Therefore, we find this assertion lacks merit. Thus, we find that La. R.S. 9:4802(G)(3) requires that the seller of movables provide notice of nonpayment to the owner and general contractor in order to preserve the right to a lien.

BURDEN OF PROOF ON SUMMARY JUDGMENT

Having found that notice of nonpayment is required pursuant to La. R.S. 9:4802(G)(3), we now examine whether AP met the burden of proof required on a motion for summary judgment.

RAC obtained a bond from Travelers to remove AP's lien and clear title to the project. The "Release of Lien" completed by RAC and Travelers contains the following proviso:

Now the condition of the above obligation is such that in the event the legality of the aforesaid claim of Lien is established by suit or otherwise, this bond shall remain in full force and effect to protect the interest of the claimant in the premises, and to secure payment of said claim.

Thus, we must determine whether AP presented sufficient evidence to show that the lien was valid such that there were no remaining genuine issues of material fact and that AP was entitled to judgment as a matter of law.

The trial court stated the following at the hearing on AP's Motion for Summary Judgment:

Well, I'm going to be honest with you. I think that they have a good lien. I do. I do. I mean, you just can't-I do. When it says that, I mean, we're not talking about a mom and pop shop. We're not talking about a little three bedroom, two and a half bath home, we're talking about a-you said 60 Million. You know, so this is commercial. This is serious commercial. And so somebody got to pay them. And now it's a part of the building. So what, you just get them for free?
* * *
But it's a lien. And like I said, I believe it's a lien. So now we need to move forward; need to go to the next step. So I'm going to grant that Summary Judgment.

As evidence to support its Motion for Summary Judgment against RAC and Travelers, AP attached the invoices of the materials purchased by CCT for the project. AP also attached the affidavit of Brent Isaaks, a member of AP. Mr. Isaaks stated that the materials were delivered to the project. However, AP did not produce evidence that notice of nonpayment was given. Thus, the burden on RAC and Travelers was "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. C.C.P. art. 966(D)(1).

RAC and Travelers attached the affidavit of Frank Dudenhefer, III, the Vice President of RAC. Mr. Dudenhefer stated that, "[b]ased upon my personal knowledge, RAC did not receive any notices of nonpayment from AP Interiors concerning any alleged amounts owed to AP Interiors before AP Interiors recorded its Lien." Thus, a genuine issue of material fact then existed as to whether the required notice was given. Once this burden shifted again, AP could not produce evidence to confirm notice of nonpayment. This lack of evidence is fatal to a motion for summary judgment.

We find that the trial court erroneously found that AP's lien was proven valid on summary judgment because genuine issues of material fact exist as to whether the proper notice was given. Accordingly, we reverse the judgment of the trial court granting AP's Motion for Summary Judgment and remand the matter for further proceedings.

DECREE

For the above-mentioned reasons, we find that notice of nonpayment is required pursuant to La. R.S. 9:4802(G)(3). Further, we find that the trial court erroneously granted AP's Motion for Summary Judgment, as genuine issues of material fact exist as to whether the proper notice was given. The judgment of the trial court is reversed, and we remand for further proceedings.

REVERSED AND REMANDED

      § 4822 also includes the criteria for "substantial completion," "notice of termination of the work," as well as other requirements not pertinent to this appeal.


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    STATE of Louisiana v. Van C. BALLARD
    NO. 2017-KA-0835
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA, 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Eric J. Hessler, ATTORNEY AT LAW, 2802 Tulane Avenue, Suite 102, New Orleans, LA 70119, COUNSEL FOR OFF. BALLARD/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
   Judge Daniel L. Dysart

Following a judge trial, Van C. Ballard, a retired New Orleans Police Department ("NOPD") officer (hereafter, "Ballard"), was convicted of one count of malfeasance in office, and he now appeals his conviction. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND:

On February 8, 2017, the State of Louisiana filed a bill of information charging Ballard with malfeasance in office, a violation of La. R.S. 14:134.

At the time of the alleged offense, Ballard was working as a civilian employee of NOPD. He was also serving as a commissioned reserve officer with the Orleans Parish Sheriff's Office (OPSO), and in that capacity, was working a private detail in the uptown area of New Orleans.

After entering a plea of not guilty to the offense, Ballard elected a trial by judge, which was held on May 30, 2017. The court took the case under advisement, and on the following day, found Ballard guilty as charged. Ballard waived all delays and was sentenced to two years imprisonment at hard labor, suspended, and two years of inactive probation. Ballard was also assessed fines, costs and fees totaling $987.

FACTUAL BACKGROUND:

At trial, NOPD Sgt. Terrance Wilson testified that he participated in the arrest of Maurice Johnson, the victim, on November 3, 2016, who, along with another assailant, was suspected of burglarizing vehicles and residential trespassing. In pursuit of the suspects, the officers responding to the incident located the victim hiding under a house in the area and were attempting to take him into custody. While the officers were apprehending the victim, Ballard, who was not assigned to the arresting officers' unit, "showed up out of nowhere." Sgt. Wilson testified that neither he nor his colleagues had requested Ballard's assistance.

Sgt. Wilson testified that he and Off. Jorgenson coaxed the victim out from under the house and restrained him face-down on the ground in a small alleyway while they placed him in handcuffs. In the process of making the arrest, Sgt. Wilson witnessed Ballard run up the alley toward them and heard the "thud" of Ballard striking the victim in the mouth with his foot. Sgt. Wilson told Ballard that NOPD Officers did not behave that way anymore and asked him to back away from the scene. Sgt. Wilson testified that the victim had not made any threatening motions toward Ballard or anyone else. Sgt. Wilson stated that the victim immediately complained that Ballard had kicked him in the mouth and asked if the officers were going to do anything about it. Sgt. Wilson replied that he would "handle it."

Sgt. Wilson and Off. Jorgenson proceeded to arrest the victim as Ballard continued in the direction of the second suspect and assisted in his apprehension from the roof of a nearby building. Sgt. Wilson characterized the physical contact between Ballard and the victim as "a battery" and reported it as such to Lt. Kendrick Allen. Sgt. Wilson testified that he and Off. Jorgenson had the victim in custody by the time Ballard made contact with him, and stated that "once a person stops resisting, any kind of action stops, and we just don't receive that kind of training to kick people in the face."

On cross-examination, defense counsel asked Sgt. Wilson if the "kick" was accidental or intentional and Wilson responded that he did not "know why [Ballard] did it," although he admitted he did not ask. Notwithstanding Sgt. Wilson's admission that both he and Off. Jorgenson were yelling at the victim to show them his hands, Sgt. Wilson confirmed that the victim had already complied with their commands by the time Ballard approached and Off. Jorgenson was in the process of securing the handcuffs behind the victim's back. Sgt. Wilson described the alleyway in which the victim was apprehended as "really dark" and a "tight squeeze." Overall, there were four fleeing suspects who were alleged to have been burglarizing vehicles, climbing over people's fences, and onto their roofs in an uptown neighborhood at 1:00 a.m.; under these circumstances, Sgt. Wilson "absolutely" believed the suspects "were dangerous" and that it was possible for someone in Ballard's position to believe they were "capable of resisting arrest."

Counsel for Ballard played the body camera video again in open court and Sgt. Wilson explained that the clicking noise heard in the video indicated the handcuffs were being secured and the thud of Ballard kicking the victim occurred afterward. Following Ballard's contact with the victim, Sgt. Wilson looked up, saw Ballard, and told him that was not how they operated, which was audible in the body camera video. In Sgt. Wilson's haste to secure the fleeing suspects, he did not have time to "extract [Ballard] from the scene." Following the arrests, Sgt. Wilson could not recall whether the victim had sustained any visible injuries, but he believed EMS had been called to the scene. Sgt. Wilson also contacted the OPSO and reported Ballard's contact with the victim. At some point later in the day, Sgt. Wilson gave an official statement to NOPD Sgt. Barnes in which he characterized Ballard's actions as "a field goal style kick" and that he had no doubt "it was one hundred percent intentional and unjustified."

As reflected on the body camera video, Sgt. Wilson also made a statement to OPSO Lt. Morrell at the scene shortly after the incident, in which he stated that it was conceivable that something other than an intentional kick had occurred. On redirect examination, the State again played portions of the body camera video in court and Sgt. Wilson agreed that he told his direct supervisor that Ballard kicked the victim "dead in the mouth" and that it was unwarranted in that situation. Sgt. Wilson explained that he was more comfortable speaking to his supervisor than the investigator from the OPSO whom he had never met before, so he was reluctant to give his full impression to the OPSO investigator. However, Sgt. Wilson testified that at no point did he believe that Ballard's boot struck the victim's face by accident or coincidence. Sgt. Wilson did not recall Ballard making any statements to him during or after the incident indicating that the contact was accidental and repeated that he did not ask for, nor believe he required Ballard's assistance in apprehending the victim.

NOPD Public Integrity Bureau Sgt. David Barnes testified that he investigated the alleged battery of the victim eight hours after it occurred, interviewed the officers who had been at the scene, and reviewed the body camera footage. At the time, the scope of his employment included investigating use of force and serious use of force complaints, implicating possible criminal liability. Although Sgt. Barnes did not interview Ballard, his investigation led to Ballard's arrest for simple battery. At the time of the incident, Ballard had been wearing an OPSO uniform and Sgt. Barnes learned Ballard was a commissioned reservist with the OPSO, was employed as a civilian and held a retired commission with the NOPD.

On cross-examination, Sgt. Barnes explained that as a civilian employee of the NOPD, Ballard did not possess the authority of a sworn officer, although he could not speculate about the authority Ballard may have had with the OPSO. By the time Sgt. Barnes joined the investigation, Sgt. Wilson had already issued Ballard a summons for municipal battery. He also testified that, at one point, the body camera footage he reviewed showed the victim resisting arrest, and admitted that he could not hear the "thud" of Ballard allegedly kicking the victim in the face.

Following Sgt. Barnes' testimony, the State offered, and Ballard accepted, a stipulation that Ballard was "a reserve commissioned law enforcement officer with the Orleans Parish Sheriff's Office" at the time of the offense.

Ballard testified in his defense. He indicated that he received a call from a resident of the neighborhood he was patrolling reporting that four suspicious-looking individuals were pulling the door handles on cars in the neighborhood. As he arrived on the scene, he encountered numerous NOPD officers searching the area. Ballard stated that he heard yelling coming from an alleyway in the 900 block of Joseph Street, and believed that police officers needed his assistance. As he ran down the dark alley towards two of the officers, who had a suspect on the ground, his knee gave out causing him to pitch forward and inadvertently kick the suspect in the mouth.

Ballard testified that Sgt. Wilson, who was in the process of handcuffing the suspect, looked up and told him "we don't do that anymore." According to Ballard, rather than stop to explain that the kick was accidental, he proceeded to the backyard of the house and apprehended another suspect who was hiding on the roof of a shed.

DISCUSSION:

Although Ballard assigns seven errors for review, six of those errors collectively amount to one assignment of error; specifically, that there was insufficient evidence to convict him of malfeasance in office.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Applying the Jackson standard, a reviewing court must not second guess the rational credibility determinations of the trier of fact. State v. Williams, 11-0414, p. 18 (La.App. 4 Cir. 2/29/12), 85 So.3d 759, 771.

Louisiana Revised Statute 15:438, provides that "[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, to convict, it must exclude every reasonable hypothesis of innocence." Further, the Louisiana Supreme Court held in State v. Davis :

In circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilty beyond a reasonable doubt under Jackson v. Virginia.

92-1623 (La. 5/23/94), 637 So.2d 1012, 1020 (emphasis in original; internal citations omitted).

Malfeasance in office is committed when any public officer or public employee (1) intentionally refuses or fails to perform any duty lawfully required of him; or (2) intentionally performs any such duty in an unlawful manner; or (3) knowingly permits any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner. La. R.S. 14:134 A.

"[B]efore a public officer or employee can be charged with malfeasance in office, there must be a statute or provision of law which imposes an affirmative duty upon him." State v. Petitto, 10-0581, p. 4 (La. 3/15/11), 59 So.3d 1245, 1249. The duty must be "expressly imposed by law upon the officer (or employee) because the officer (or employee) is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will expose him to criminal charges." Id., 10-0581, pp. 4-5, 59 So.3d at 1249. Ballard stipulated at trial that as a commissioned reserve deputy of the OPSO, he was authorized to make arrests. He testified that at the time of the incident, he was wearing a full OPSO uniform. Additionally, Ballard testified that he was a NOPD officer for over twenty years prior to joining the OPSO, and was aware of the rule relative to reasonable and necessary force.

Reasonable force is allowed to make an arrest and detention, and to overcome any resistance or threatened resistance of the person being arrested or detained. Kyle v. City of New Orleans, 353 So.2d 969, 972 (La.1977) ; Estate of Francis v. City of Rayne , 07-359, p.6 (La.App. 3 Cir. 10/3/07), 966 So.2d 1105, 1110. The totality of the circumstances must be considered when determining if the force used is reasonable. Therefore, the trial court must evaluate the officer's actions comparing them to those of an ordinary, prudent and reasonable man placed in the same position as the officer and with the same knowledge as the officer. Kyle , 353 So.2d at 973.

The State argued at trial that Ballard's actions in kicking the suspect in the face as he lie on the ground being handcuffed by two other officers was not necessary under the circumstances. The arresting officers had the suspect under control.

Sgt. Wilson testified that he felt Ballard's actions were excessive and unreasonable, as the suspect was already motionless and handcuffed on the ground as Ballard approached. Ballard testified that as he ran into the alleyway, he was prepared to use force, but acknowledged that as he drew near the suspect, he reevaluated the situation and decided that use of force was unnecessary. He testified that the kick was inadvertent.

Based on his assertions that the kick was not intentional, Ballard argues that the State failed to prove he intentionally used excessive force. Citing Petitto , he contends that "mere inadvertence or negligence, or even criminal negligence, will not support a violation of the malfeasance statute because the statute specifies the act or failure to act must be intentional." Petitto , 10-0581, p. 13, 59 So.3d at 1254. However,

[c]onflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La.App. 4 Cir. 1989). 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. A trier of fact's determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La. 1984).

State v. Wells , 10-1338, p. 5 (La.App. 4 Cir.. 3/30/11), 64 So.3d 303, 306.

Contrary to Ballard's testimony, during the course of investigation, Sgt. Wilson testified that Ballard's kick was "a field goal style kick" which was "100 percent intentional and unjustified." In evaluating the evidence, the trial court indicated on multiple occasions that it did not believe Ballard accidently slipped when his knee gave out. It noted that immediately after the incident, Ballard was able to run into the backyard and climb a ladder to apprehend another suspect.

Considering the observations by the trial court, coupled with Sgt. Wilson's testimony that the kick was a "field goal-style kick," which he believed to be intentional, we cannot say the trial court erred in its conclusions.

We find that there was sufficient evidence for the trial court to find Ballard guilty as charged of malfeasance in office.

In addition to the sufficiency of the evidence arguments, Ballard asserts that his Sixth Amendment right to confront his accuser was violated as the suspect did not testify at trial. In this case, the suspect was not Ballard's accuser. Rather, Sgt. Wilson was the person who reported Ballard's actions to his superiors. This assignment of error has no merit.

Accordingly, we find there was sufficient evidence to convict Ballard of malfeasance in office, and affirm his conviction and sentence.

AFFIRMED

      A police body camera video was played in open court and introduced as State's Exhibit 1.

      Sgt. Wilson later testified that the alley was about one and a half yards wide.

      Sgt. Wilson prefaced this testimony with an explanation to the court in which he explained that it can be "touchy" for police officers to give statements to other police officers about complaints regarding the actions of police officers. He further explained that the statement he made to Lieutenant Morrell at the scene was the way he felt at the time, amidst the chaotic backdrop of the arrests and impending internal investigation.

      The crime of simple battery is set forth in La. R.S. 14:35.

      The court had heard previous testimony from Sgt. Barnes at the preliminary hearing and requested it not be duplicated at trial. At the preliminary hearing, Sgt. Barnes testified that Ballard had been patrolling the area in his commissioned capacity with the OPSO and was assisting NOPD officers in making an arrest when he ran up the alleyway toward the victim's location. The victim had been pulled out from under the house, was lying face-down on the ground and was in the process of being handcuffed, although he was not fully restrained and was "lightly resisting" at the time Ballard kicked him in the face. During Sgt. Barnes's investigation, Sgt. Wilson had described the "field goal style kick," but also claimed there had been "no reportable use of force used by anybody" during the arrest, although Sgt. Barnes explained that meant there had been no complaints of injury. Based on his investigation, Sgt. Barnes concluded the physical contact between Ballard and the victim "did not appear to be unintentional."

      The court accepted this stipulation to avoid holding the trial open for an absent witness.

      Initially, Ballard was issued a summons from Municipal Court for simple battery. However, the Orleans Parish District Attorney filed a bill of information charging Ballard with malfeasance in office.

      In Off. Ballard's sixth assignment of error, he argues an affirmative defense of justification. See La. R.S. 14:18. However, at trial, Ballard's defense was that the contact with the suspect was accidental, not that it was justified. Ballard could have asserted such a defense at trial, but did not. This Court is restricted to reviewing those theories actually put forth at trial, not for the first time on appeal. State v. Castro, 16-0284, p. 8 (La.App. 4 Cir. 12/14/16), 206 So.3d 1059, 1064.


text:
    STATE of Louisiana v. Kendall HARRISON
    NO. 2017-KA-0054
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, DONNA R. ANDRIEU, CHIEF OF APPEALS, ASSISTANT DISTRICT ATTORNEY, MITHUN B. KAMATH, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR THE STATE/APPELLEE
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, Louisiana, 70178-4015, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Tiffany G Chase,)
    STATEMENT OF CASE
    On June 14, 2012, Kendall Harrison (defendant) was indicted for the second degree murder of Harry Ainsworth (the victim), in violation of La. R.S. 14:30.1 (count 1), a crime which came be known as the "Good Samaritan" case, and the armed robbery of Ms. Anita Hedgepeth, a violation of La. R.S. 14:64.3 (count 2).
    Following a seven-day jury trial, which commenced on December 2, 2014, and concluded on December 8, 2014, the defendant was convicted of both charges. On March 4, 2015, the trial court sentenced the defendant to life imprisonment with the possibility of parole after forty-five years on count 1 and to forty-five years on count two, sentences to run concurrently.
    STATEMENT OF FACT
    NOPD 911 operator Ms. Shondrell Isadore testified that every 911 call for police assistance is recorded, assigned an item number and generates an incident recall report. The item number assigned the 911 call in this case was A-034256-12. Ms. Isadore identified State's Exhibit 2 as the recording of the 911 call, made by Jeremy Ballard on January 25, 2012, at approximately 7:11 a.m., reporting a shooting at Eliza and Vallette Streets. The State played the 911 recording made by Mr. Ballard in which he reported he was in his car following the shooter, who he described as a black male wearing a brown leather jacket, tan pants and black boxer shorts.
    Dr. Samantha Huber, chief forensic pathologist for the City of New Orleans, autopsied the victim's body on January 25, 2012, and documented her findings in a written report. Dr. Huber concluded the victim suffered a penetrating bullet wound to the left chest wall. The bullet passed through the victim's spleen, stomach, liver, lungs and heart. Dr. Huber removed the bullet from the victim's body during the autopsy and turned it over to the ballistics lab.
    Ms. Anita Hedgepeth testified she was living in the 500 block of Vallette Street in Algiers Point in 2012. On the morning of January 25, 2012, at about 7:00 a.m., as she walked from her apartment to her car, she noticed a young man walking toward her. She also noticed the victim, who she did not know but recognized from the neighborhood, standing with his two children at the bus stop on the corner of Vallette and Eliza Streets. As Ms. Hedgepeth sat in the driver's seat of her car, there was a tap on the driver's side window. She rolled down her window slightly, and a man standing next to her vehicle asked her the time. As she turned to answer him, the man pointed a gun at her head and demanded her car. Ms. Hedgepeth pushed the gun aside and refused to exit her vehicle. The assailant once again aimed the gun at her and repeated his demand. Ms. Hedgepeth exited the car holding her purse, which the assailant grabbed and a struggle ensued. The next thing she remembered was the car door slamming, and the defendant seated in the driver's seat. She screamed and at that moment, the victim jumped onto the hood of her car, smashed the windshield with his feet/fists and yelled to the defendant to get out of Ms. Hedgepeth's car. She heard three shots. The victim told her to run and then said, "He shot me." The victim jumped from the car, ran across the street and collapsed in Ms. Hedgepeth's front yard. By the time she made her way to the victim, his two young sons were kneeling down next to him, crying. Meanwhile, the defendant fled the area on foot. Neighbors called 911, and the police and EMS arrived. The victim's partner/wife arrived on the scene and collapsed at the sight. The police questioned Ms. Hedgepeth about the shooting. She recalled that the defendant wore khaki pants, a fleece hoodie, a cap and had dark skin. At police headquarters, Ms. Hedgepeth gave a recorded statement, approved a sketch of the shooter and gave her purse to the police. Ms. Hedgepeth viewed a photo lineup compiled by Detective Tanisha Sykes but was unable to make an identification. The day after the shooting, officers obtained the blouse Ms. Hedgepeth was wearing at the time of the shooting. Ms. Hedgepeth identified her vehicle as a 2005 Saturn Ion and said that the only other person to drive her car was her nephew, and then only in her company. She had not had her car serviced or cleaned in the month preceding the shooting.
    Detective Tanisha Sykes, the lead detective in this case, recounted that on January 25, 2012, her supervisor notified her of a homicide in the 500 block of Vallette Street in Algiers. Detective Sykes arrived on the shooting scene about 8:25 a.m., at which time the victim was already dead. Detective Sykes identified crime scene photos taken by crime lab personnel, depicting cigarette butts, a cigarette package, shell casings on the ground and the interior of Ms. Hedgepeth's vehicle, and the victim's hat. The evidence obtained from the scene was deposited in Central Evidence and Property Room, and Ms. Hedgepeth's vehicle was impounded at police headquarters for processing. The victim's two young sons, and Ms. Hedgepeth, independently of one another, directed the drawing of sketches of the shooter. One of the victim's son's composite of the defendant was released to the media by the police. Later on the morning of the shooting, the victim's sons underwent forensic interviews at the Children's Advocacy Center. While processing Ms. Hedgepeth's vehicle, crime lab personnel recovered two 9mm Luger spent casings from the interior of the car and swabbed interior and exterior areas for the presence of DNA.
    The day after the shooting, FBI, DEA and ATF agents assisted in the investigation by distributing sketches of the suspect and interviewing witnesses.
    During the investigation, the defendant was developed as a suspect via an unrelated charge in Jefferson Parish. Detective Sykes obtained a buccal swab from him and sent it to the Louisiana State Police Crime Lab for analysis. Eventually, the lab notified the NOPD that a male DNA profile was developed from the swab taken of the steering wheel of Ms. Hedgepeth's vehicle. From that information, Detective Sykes obtained an arrest warrant for the defendant for the murder of Harry Ainsworth and the armed robbery of Ms. Hedgepeth, followed by search warrants for the defendant's residences on South Indigo Street and Heritage Lane. At the South Indigo Street residence, officers seized several pairs of khaki pants, a black sweatshirt with a gray hood, and a fitted cap, all of which matched the description of clothing provided by witnesses as being worn by the shooter.
    The defendant was arrested on February 28, 2012, and transported to police headquarters where Detective Sykes and Detective Darrell Doucette took the defendant's recorded statement. After the statement, Detective Sykes collected the white rosary and red and black plaid boxer underwear the defendant was wearing because witnesses described the shooter as wearing those items. Detective Sykes also obtained the defendant's cell phone, which contained a picture of him wearing a black coat, khaki pants, black tennis shoes and a white rosary.
    Mr. Brian Young, a middle school administrator, testified he was defendant's mentor and a friend of the family for about nine years before this incident. Mr. Young told the jury that he and the defendant's aunt, Ms. Rose Mitchell, lived in the Woodmere area of Jefferson Parish in 2012 and worked together to transport the defendant to school at the John McDonough High School campus in Orleans Parish. The witness said he was working at Martin Behrman Charter School in Algiers in January 2012. Mr. Young recalled that the defendant spent the night of January 23, 2012, at his Heritage Lane residence in order for him to transport the defendant to school the next morning. However, the following morning, Tuesday, January 24, 2012, instead of driving the defendant to school, Mr. Young drove the defendant to the defendant's aunt, Rosemary Harrison's, residence in Woodmere Subdivision.
    Mr.Young recalled that on January 25, 2012, the school where he was employed was on "lockdown" because it was near the scene of this incident. Mr. Young said he had a telephone conversation with the defendant on the day of the shooting, but that he did not see the defendant again until the next week.
    Nyron Harrison, the defendant's cousin, lived in Harvey in January 2012. Mr. Harrison's grandmother, uncle, aunt and sister lived on Vallette Street at that time. On January 25, 2012, Mr. Harrison was doing repair work at his father's property in the 800 block of Vallette Street, when the defendant stopped and visited with him before 8:00 a.m. Mr. Harrison remembered there were police cars in the neighborhood at that time because of an "incident" which occurred "down the street." While Mr. Harrison and the defendant were visiting, the defendant's Aunt Rosemary Harrison arrived to drive the defendant to school. At some point after the shooting, Mr. Harrison received a visit from Detective Sykes, who took a recorded statement from him.
    During cross-examination, Mr. Harrison said he was threatened by Detective Sykes with being charged as an accessory if he did not testify about the defendant's involvement in the shooting.
    Ms. Rosemary Harrison, the defendant's great aunt, testified that in January 2012, she, along with the defendant, her daughter and daughter's children, were living on South Indigo Street in Algiers. Ms. Harrison said she would bring her grandchildren to school in the morning between 7:20 and 7:45 a.m. On the morning of January 25, 2012, as she was driving her grandchildren to school, Ms. Harrison received a call from the defendant, asking for a ride. After dropping the grandchildren at school, she drove to the 800 block of Vallette Street and picked up the defendant about 7:50 a.m.
    Mr. Daniel Dooley, a forensic interviewer at the Child Advocacy Center in New Orleans conducted a recorded interview of D.C., the victim's older son, on the morning of the shooting.
    D.C. testified that the victim of the shooting was his father. D.C., thirteen years old at the time of trial, said he was aged ten and his brother was nine, when their father was murdered. In January 2012, the victim's sons lived with their parents in Algiers Point. On January 25, 2012, the victim's sons and the victim walked to the glass-blowing shop on the corner near their home to await the arrival of the bus to transport D.C. to school. D.C. remembered as they stood at the bus stop, they heard a woman scream because she was being robbed. D.C. witnessed his father run to the woman's aid, jumping on her car, beating on the windshield and yelling to the assailant to leave. D.C. heard a gunshot and watched the victim run from the car to a house across the street and duck down. The shooter ran from the area and the two boys ran to the victim. A neighbor took the two boys into his house where they waited. Shortly thereafter, the two boys' mother and uncle arrived at the neighbor's house and the boys learned their father was killed in the shooting. D.C. remembered the shooter as a black male, wearing a black jacket. The two boys were transported to the Children's Advocacy Center where both were interviewed. D.C. said he listened to a recording of his interview before trial, but that he did not remember saying some of the things heard on the tape.
    Ms. Robin Mayer testified she lived in Algiers Point for twelve years at the time of this shooting. On January 25, 2012, she lived on Slidell Street, and her mother resided in the 500 block of Vallette Street in Algiers Point. Her daily routine was to bring her young child to her mother's house on Vallette Street and then return to her home five blocks away to dress for work.
   On the day of the shooting, Ms. Mayer deposited her child at her mother's house at 7:05 a.m. As Ms. Mayer was leaving, she saw what she thought was a couple arguing across the street from her mother's house. Seconds afterwards, Ms. Mayer heard Ms. Hedgepeth screaming and then saw Ms. Hedgepeth struggling with the suspect, who was standing next to Ms. Hedgepeth's car. Ms. Mayer ran toward the commotion. The suspect reached in and out of Ms. Hedgepeth's vehicle while Ms. Hedgepeth was seated in the car. Then Ms. Mayer saw the victim run from the corner of Eliza and Vallette Streets to help Ms. Hedgepeth. By that time, Ms. Hedgepeth had exited the vehicle, and the suspect had entered. The victim jumped on the hood of Ms. Hedgepeth's car, hitting and kicking the windshield. A shot was fired. The victim jumped from the hood of the car, alerting Ms. Mayer and Ms. Hedgepeth that the suspect was armed and had shot him. The victim ran across the street and collapsed on the lawn of a nearby house. Ms. Mayer ran under some steps and watched the suspect, who was wearing a gray hoodie, run toward the river. Ms. Mayer went to the unconscious victim's aid. She attempted to staunch the bleeding from the victim's torso by applying pressure to the wound. Just then, the victim's young sons ran to the victim and attempted to speak to him. EMS personnel arrived but despite their efforts could not revive the victim.

NOPD expert firearm examiner, Ms. Meredith Acosta, examined four unknown caliber copper jacket fragments (specimens 1, 2, 3 and 5), three fired 9mm caliber cartridge cases, two fired casings (specimen 4) and one fired casing (specimen 6) and a bullet retrieved during the victim's autopsy (specimen 7). Ms. Acosta opined the casings retrieved from the shooting scene were fired from a 9mm semi-automatic weapon and confirmed that she did not examine a weapon related to this case.

Corporal Kay Harrell testified she was employed by the Orleans Parish Sheriff's Office as the supervisor of the records division of the NOPD Intake and Processing center. Corporal Harrell's duties involved updating all inmate files, keeping track of probation, parole and release of inmates. Through her computer, Corporal Harrell was able to access information related to the locations of inmates. On July 30, 2014, the Orleans Parish District Attorney's Office asked her to determine the defendant's and Joshua McReynolds' location histories.

The booking date on the defendant's location records was February 28, 2012. Further, the defendant's record indicates he was housed in Templeman 5, A-1, Cell-1 of Orleans Parish Prison from May 27, 2012 to June 20, 2012.

Joshua McReynolds' location history reflected he was booked on June 15, 2011, and housed in the same cell with the defendant from June 6, 2012, to June 12, 2012.

Joshua McReynolds testified that he pled guilty to armed robbery on June 25, 2012. He was incarcerated in the Orleans Parish Prison, serving a twenty-year sentence at the time of the trial in this case. During a portion of his time in jail, Mr. McReynolds was in the same cell as the defendant, who related to Mr. McReynolds that he had shot a man while carjacking a woman. The defendant referred to the killing as the "good Samaritan murder." Mr. McReynolds recounted that the defendant questioned him about his knowledge of forensic evidence, specifically DNA. The defendant explained that he had wiped down the car but may have dropped a cigarette butt at the shooting scene. When Mr. McReynolds questioned the defendant about what it felt like to kill a man, the defendant replied it was just like shooting a bird with a BB gun.

Jim Huey testified that he worked at the Orleans Parish Sheriff's Department and was the custodian of records of inmate telephone calls. He stated that the phone calls of the inmates are recorded on an internet-based system and stored on a secured database. Mr. Huey testified that when an inmate makes a call, the inmate must use a pin/folder number that was issued to the inmate at booking. One of Mr. Huey's duties is to provide law enforcement agencies copies of an inmate's jailhouse telephone calls. Mr. Huey explained that as an inmate makes a call from the Orleans Parish Prison, the inmate is issued a warning that the call will be monitored and recorded. Mr. Huey also noted that a call detail sheet, which lists the specifics of an inmate call, i.e., name of caller, time, duration, number called, etc., accompanied the recording of jailhouse calls. Pursuant to the State's request, Huey supplied a disc containing a recording of four calls the defendant placed in the first week of March 2012 while incarcerated at Orleans Parish Prison.

Jeremy Ballard testified that on the morning of January 25, 2012, he arrived at his glass studio in Algiers Point at approximately 6:50 a.m. His shop was located on the corner of Vallette and Eliza Streets. At approximately 7:00 a.m. that day, Mr. Ballard heard what he thought were four gunshots. He walked out of his shop to investigate and saw two children running in the street. Mr. Ballard recognized the children from the neighborhood because he had seen them with their father on previous mornings waiting on the corner for their school bus. Ballard ran toward the children as the suspect ran across Vallette Street toward Eliza Street. When the suspect tripped on the sidewalk, Mr. Ballard noticed the suspect was wearing red plaid boxer shorts. Mr. Ballard followed the suspect in his car. However, Mr. Ballard lost sight of the man momentarily and drove around the area until he saw the suspect again on Sequin Street. The suspect met a man on Opelousas Street, and the two walked to Teche Street. Thereafter, the pair walked back to Vallette Street, and Mr. Ballard lost sight of them; however, as Mr. Ballard was following the men, he called 911, reported the situation and provided a description of the suspect's clothing-tan pants and dark brown leather jacket. Mr. Ballard then drove back to his shop. When the police arrived at his shop, Mr. Ballard accompanied them in the patrol car, retracing the suspect's flight route. Mr. Ballard said he viewed the suspect from a vantage point of no more than twenty feet; however, Mr. Ballard was unable to make an identification from the photo lineup the police presented him.

Troy Dickerson, the NOPD expert crime scene and fingerprint analyst, testified he was called to the shooting scene. By the time he arrived, crime scene technicians had already begun photographing and processing the area. Mr. Dickerson photographed and processed Ms. Hedgepeth's vehicle. He swabbed the vehicle's driver side door handle, steering wheel, radio knob, gear shift, AC switch and driver's side arm rest for DNA. Mr. Dickerson also processed the vehicle for latent fingerprints and hair and fibers. The swabs and samples taken during the process were sealed, identified and placed in Central Evidence and Property for further processing/testing.

Sergeant Jeff Rodrigue of the Homicide Division of the Jefferson Parish Sheriff's Office testified that in January and February 2012, he was assigned to the New Orleans FBI Violent Crimes Task Force. Sergeant Rodrigue assisted Detective Tanisha Sykes in obtaining a buccal swab from the defendant.

Acadiana Crime Lab forensic DNA analyst Jeremy Dubois tested the swab samples obtained by Troy Dickerson from the Hedgepeth vehicle. Mr. Dubois also performed DNA testing on the blouse Ms. Hedgepeth wore the day of the shooting. He issued a report of his test results on February 8, 2012. Mr. Dubois explained that he obtained reference DNA samples from Ms. Hedgepeth and the defendant for comparison with profiles obtained from swab samples. Testing on the steering wheel swab revealed the presence of DNA for both Ms. Hedgepeth and the defendant. Mr. Dubois opined that based on statistical analysis, the probability the male DNA found on the steering wheel being deposited by anyone other than the defendant was one in 73.7 million within the African American population.

The defense offered the testimony of the defendant's father, Mr. Michael Willis, who informed the jury that the defendant had been missing a tooth since junior high school. He also denied that the defendant was a killer.

Detective Sykes was called by the defense and confirmed she was the lead detective in this case. The detective admitted failing to have the witnesses who viewed a photographic lineup sign the back of the photos if no identification was made; however, she reiterated she noted in her report the procedure employed in displaying the photo lineups and whether an identification was made by the witness.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of the record reveals one with regard to the defendant's sentence for armed robbery. In the indictment, the State invoked the firearm sentence provision of La. R.S. 14:64.3, which provides that when a firearm is used in the commission of an armed robbery or attempted armed robbery, the "offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence." See State v. Bartley , 2017-0273 (La. App. 4 Cir. 10/11/17), --- So.3d ----, 2017 WL 4534407. The trial court sentenced the defendant to forty-five years at hard labor without benefit of probation, parole, or suspension of sentence for the count of armed robbery with a firearm. However, the trial judge did not specify whether the sentence imposed included the enhanced term of imprisonment under La. R.S. 14:64.3. A sentence is indeterminate when the trial court fails to impose a consecutive five-year enhancement as mandated by La. R.S. 14:64.3. See State v. Burton, 2009-0826, p. 3 (La. App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076.

Therefore, we vacate the defendant's sentence for armed robbery with a firearm and remand the matter for resentencing or clarification as to whether the sentence includes any additional punishment as prescribed by La. R.S. 14:64.3. See State v. Amos , 2015-0954, pp. 5-6 (La. App. 4 Cir. 4/6/16), 192 So.3d 822, 826-827.

ASSIGNMENT OF ERROR NUMBER 1

In the first of four assignments, the defendant complains his convictions are based upon circumstantial evidence, and that the State failed to exclude every reasonable hypothesis of innocence. The defendant does not deny that the crimes occurred, only that the State failed to prove his identity as the shooter, noting that no one identified him, and that the police found no gun or other incriminating evidence when the police searched his home.

This Court, in State v. Hickman , 2015-0817, p. 9 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1165-1166, set forth the standard for determining a claim of insufficiency of evidence as follows:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court "must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Neal , [20] 00-0674 (La. 6/29/01), 796 So.2d 649, 657 (citing State v. Captville , 448 So.2d 676, 678 (La.1984) ).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Neal , 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere , 488 So.2d 965, 968 (La. 1986) ).

"If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted." State v. Green , 588 So.2d 757, 758 (La. App. 4th Cir. 1991). It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott , 2012-1603, 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. 4 Cir. 1993) ). "The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence." State v. Richards, 2011-0349, p. 9 (La. App. 4 Cir. 12/1/11), 78 So.3d 864, 869 (citing State v. Vessell, 450 So.2d 938, 943 (La. 1984) ). Conflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La. App. 4th Cir. 1989). 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.

The defendant herein maintains his convictions are baseless because none of the State's witnesses, who viewed photo lineups, were able to identify him as the perpetrator of these crimes.

Ms. Hedgepeth testified she viewed her assailant for a few moments and added that he was armed, demanded she surrender her car and ultimately struggled with her as he pulled her from the car and grabbed her purse. Moreover, Ms. Hedgepeth was able to compile a sketch of her assailant and her clothing description of the perpetrator she provided matched the description supplied by other witnesses-khaki pants and gray hoodie.

Ms. Robin Mayer who was a few houses away from the shooting scene also noted that the shooter wore a gray hoodie.

Detective Sykes testified about the impounding and processing of Ms. Hedgepeth's vehicle. Detective Sykes reported that DNA lifted from the car's steering wheel by the crime lab revealed a male genetic profile. Detective Sykes indicated that the victim's two young sons drew sketches of the perpetrator, and, in fact, one of those sketches was released to the news media to assist in the search for the shooter. During the course of her investigation, Detective Sykes obtained a buccal swab from the defendant for testing and based upon those results, a warrant was issued for the defendant's arrest. When police arrested the defendant, he was wearing plaid boxer shorts, like the ones Jeremy Ballard saw the suspect wearing at the time of the shooting. Additionally, a search of the defendant's residence produced several pairs of khaki pants and a gray hoodie.

Joshua McReynolds recalled that he and the defendant were housed in the same cell in the Orleans Parish Prison for approximately two days in late May or early June 2012, during which time they spoke about the charges against the defendant. Mr. McReynolds recounted the defendant asking him about forensic evidence and how it could be used to link a person to a crime. The defendant admitted to Mr. McReynolds that he was carjacking a lady when a man came and got in the defendant's way. The defendant claimed he did not intend to shoot the victim. Moreover, the defendant told Mr. McReynolds that the media referred to the shooting as the "Good Samaritan" case. The defendant explained to Mr. McReynolds that he wiped the car down but said he may have dropped a cigarette butt or left some other evidence behind, and that was why he was asking Mr. McReynolds about different types of forensic evidence. When Mr. McReynolds asked the defendant what it felt like to shoot someone, the defendant described it as shooting a bird with a BB gun.

Additional proof of the State's case came from the DNA evidence obtained from Ms. Hedgepeth's car. Acadiana Crime Lab forensic DNA analyst Jeremy Dubois explained the science of DNA and provided examples of where DNA may be found in the human body-skin, saliva, white blood cells, bone, and seminal fluid. From statistical analysis of the test results, Mr.Dubois opined that the probability the male DNA found on the steering wheel of Ms. Hedgepeth's vehicle being deposited by anyone other than the defendant was one in 73.7 million in the African American population.

In addition, Troy Dickerson, the NOPD expert crime scene and fingerprint analyst, concluded that the gunshot which shattered the Hedgepeth vehicle's windshield, and killed the victim, was fired by the defendant while seated in the vehicle.

Based upon the uncontroverted DNA evidence in this case, coupled with the testimony of Joshua McReynolds and the other State's witnesses, viewing the evidence in the light most favorable to the State, it was not unreasonable for the jury to conclude that the defendant shot the victim and robbed Ms. Hedgepeth while armed with a gun. This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, the defendant argues that the trial court erred in denying his challenges for cause to jurors Ms. Schenck and Ms. Cox. The defendant challenged those jurors on the ground that they could not be fair and impartial because their responses to questioning revealed that they would consider the defendant's failure to testify in determining guilt.

Louisiana Constitution article I, section 17 guarantees a defendant the "right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." State v. Juniors , 2003-2425, p. 7 (La. 6/29/05), 915 So.2d 291, 304. The number of peremptory challenges granted to a defendant in a trial of an offense punishable necessarily by imprisonment at hard labor, as in this case, is fixed by law at twelve. See La. Const. art. I, § 17 (A); La. C.Cr.P. art. 799. When a defendant uses all twelve of his peremptory challenges, an erroneous ruling by a trial court on a challenge for cause that results in depriving the defendant of a peremptory challenge constitutes a substantial violation of the defendant's constitutional and statutory rights, requiring reversal of the conviction and sentence. Juniors, 2003-2425 at 7-8, 915 So.2d at 304 ; see La. C.Cr.P. art. 921 ("A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused."). Therefore, prejudice is presumed when a challenge for cause has been erroneously denied by a trial court, and the defendant exhausts all peremptory challenges statutorily afforded to the defendant. Juniors , 2003-2425 at 8, 915 So.2d at 305 (citing State v. Robertson , 92-2660, p. 3 (La. 1/14/94), 630 So.2d 1278, 1280, and State v. Ross , 623 So.2d 643, 644 (La. 1993) ). In summary, where all peremptory challenges have been used, as in this case, a defendant need only demonstrate the erroneous denial of a challenge for cause to establish reversible error warranting reversal of a conviction and sentence. Juniors , 2003-2425 at 8, 915 So.2d at 305.

A defendant may challenge a juror for cause if "[t]he juror is not impartial, whatever the cause of his partiality." La. C.Cr.P. art. 797(2). A "juror [who] will not accept the law as given to him by the court" may also be challenged for cause by the defendant. La. C.Cr.P. art. 797(4). In State v. Dotson , 2016-0473, (10/15/17), 234 So.3d 34, the Louisiana Supreme Court noted that:

Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Drew , 360 So.2d 500, 513 (La. 1978). The questions propounded are designed to determine any potential adverse influence on the prospective juror's ability to render an impartial verdict. See Id. A prospective juror's responses during voir dire cannot be considered in isolation. See State v. Frost , 97-1771, p. 8 (La. 12/1/98), 727 So.2d 417, 426.
A trial judge is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the judge abused his discretion. Robertson , 630 So.2d at 1281. The trial judge's refusal to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called "rehabilitation"), the prospective juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Id.
Clearly, La. C.Cr.P. art. 797(2) does not require that a prospective juror state with absolute certainty that he/she cannot be impartial in order to be removed for cause. However, in the absence of such a statement, the trial court's denial of a challenge for cause will not be reversed if, on review of the entire voir dire examination, the prospective juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. Passman , 345 So.2d 874, at 880. Reversal is appropriate only where it appears, upon review of the voir dire examination as a whole, that the trial judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused., Id. See State v. Dorsey, 10-0216, at 28, 74 So.3d 603, at 625 ; State v. Lee , 93-2810 (La. 5/23/94), 637 So.2d 102, 108. This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Lee, 93-2810 at 9, 637 So.2d at 108. "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id. As noted in State v. Miller , 99-0192 (La. 9/6/00), 776 So.2d 396, because of the "complicated and oftentimes daunting" task faced by a trial court in deciding "challenges for cause of prospective jurors who give equivocal ... responses during voir dire ," "an appellate court should accord great deference to the [trial] court's ruling on a challenge for cause, which is necessarily based, in part, on the court's personal observations during questioning." Id., 99-0192 at 14, 776 So.2d at 405-06.

In the case sub judice , during voir dire , defense counsel queried the prospective jurors:

... does anyone believe ... [the defendant] ... needs to testify? You just got to hear from him .... He is not required to testify, but you still believe ... if he is convicted he's going to die in Angola, "I want to hear from him." "I want to hear from him even though the law says he would not have to testify."

Ms. Schenck and Ms. Cox responded as follows:

MS. COX: Let me tell you why.
DEFENSE: And I want you to make this clear.
MS. COX: Okay. If my life was on the line, I would do anything I had to; testify, stand on my head, whatever. That's the only reason because I think it's worth it to him. I think I would feel more towards his innocence if he was willing to defend his own claim.
DEFENSE: Even though the law says he does not have to, you would still want to hear from him?
MS. COX: I'm saying I would like to hear from him. I'm not saying I have to hear from him. I know what the law says. You are telling me what the law says. You just asked for an opinion and I said I would like to hear from him.
DEFENSE: Ms. Schenck?
MS. SCHENCK: Part of her answer is that I felt if I ever did something I would want to say my peace (sic). I understand it's the law. I don't know how to separate it from something in the back of my mind saying, "Why wouldn't he want to speak up?" I know it's the law and understand that, but I just have that little part in my brain I can't separate from the law.
DEFENSE: So you all would basically be impressed by a defendant who comes up and takes the stand in their own defense?
MS. COX: Because he feels that strongly, "I'm innocent. And I will tell you I'm innocent. And I will tell you why I'm innocent." And if I hear it from him that will go a lot in my direction in impressing me. "Impress" seems a little frivolous, but it would weigh a lot.
DEFENSE: So the State has proven its case beyond reasonable doubt just because the defendant comes up you will be impressed with him.
MS. COX: But the defendant coming up is your decision, not mine.
DEFENSE: But you would be impressed with it if he came up?
MS. COX: I would probably-it would add some weight to my decision, yes.

Ms. Cox's and Ms. Schenck's responses disprove the defendant's contention that each "unequivocally" stated they would treat the defendant more favorably if he took the stand. In particular, Ms. Cox, who was employed by a law firm, stated that she "did not have to" but "would like" to hear from the defendant and that she understood that the law did not require him to testify. Ms. Schenck, an attorney, expressed the opinion that if she were on trial she would testify, but like Ms. Cox, she said she understood the law did not require the defendant to testify.

In State v. Passman , 345 So.2d 874, 879-80 (La. 1977), a prospective juror responded that he might be influenced by whether the defendant took the stand on his own behalf, implicating La. C.Cr.P. art. 797(4). Furthermore, when asked if he would have trouble following the trial judge's instruction not to consider whether the defendant testified in weighing the defendant's guilt, the prospective juror in Passman indicated that he "may have trouble and [he] may not." However, on further questioning by the trial judge, the prospective juror clarified that he would accept and apply the law in deciding whether the defendant is guilty. The Supreme Court found no abuse of discretion in the denial of the defendant's challenge for cause.

In State v. Frazier , 283 So.2d 261, 263-64 (La. 1973), an equivocal answer given by the prospective juror ("I could try.") to the trial judge's question, "If [defendant] did not take the stand do you feel that you could return a fair and impartial verdict based on the evidence and the testimony that you did hear," did not amount to a refusal to accept the law as charged so as to implicate La. C.Cr.P. art. 797(4).

Recently, in State v. Wells , 2014-0612 (La. App. 4 Cir. 9/14/16), 203 So.3d 233, 305, writ denied , 2016-1939 (La. 9/6/17), 224 So.3d 988, cert. denied , Wells v. La. , --- U.S. ----, 138 S.Ct. 995, 200 L.Ed.2d 268, 2018 WL 942610 (2/20/18), this Court concluded that a juror who expressed her unfavorable view on a defendant's failure to testify was not required to be removed for cause where her responses during voir dire indicated that she could follow the court's instructions, comply with her oath as a juror, and put considerations of the defendant's failure to testify out of her mind when determining guilt or innocence.

Neither Ms. Cox nor Ms. Schenck gave any indication she could not be impartial and fair to the defendant. Ms. Schenck told the prosecutor that she would have to hear all of the evidence before she could make a determination of the defendant's guilt. Ms. Cox averred she would serve as a fair and impartial juror. Further, both Ms. Cox and Ms. Schenck said that if chosen as jurors, they would devote their undivided attention to the trial.

Based upon Ms. Cox's and Ms. Schenck's overall responses during voir dire that they could follow the law and be impartial and fair to the defendant, the trial court did not err by denying the defendant's challenges to those jurors. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 3

In this assignment, the defendant argues the trial judge abused his discretion by failing to grant the motion for mistrial based upon the defendant's argument that the State was guilty of shifting the burden of proof.

The defendant claims the burden shifting occurred during the State's redirect questioning of Jeremy Dubois, its DNA expert, who testified that, when the lab finishes its testing, it keeps a portion of the DNA extract for further testing in case there is an appeal and third-party testing is sought. The defense objected to the mention of an appeal, and the judge sustained the objection. Then, when the judge allowed the witness to respond that one-half of the extract was reserved in case the defense sought independent testing, the defense objected and accused the witness of "shifting ...the burden [of proof], sort of." The judge overruled the objection, and the defense requested a mistrial, which was denied. The trial court thereafter refused defense counsel's request for a curative instruction.

"Mistrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La. C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown." State v. Castleberry, 98-1388, p. 22 (La. 4/13/99), 758 So.2d 749, 768. "The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion." State v. Maxwell , 2011-0564, p.25 (La. App. 4 Cir. 12/21/11), 83 So.3d 113, 128.

The State explained its redirect questioning of Mr. Dubois, noting that it did not raise the issue on direct examination, but rather that defense counsel "opened the door" during its cross-examination when he asked Mr. Dubois whether additional testing, other than that performed by the State, of the DNA evidence was possible. The State pointed out that it raised the issue on redirect examination merely to afford Mr. Dubois the opportunity to clarify his response to the question posed during cross-examination. See State v. Overton, 337 So.2d 1201, 1206 (La.1976) ("The court correctly ruled that defense counsel had opened the door to this area on cross-examination and that it was a proper subject for redirect examination ... Where defense counsel went on cross-examination, the State had the right to follow on redirect."); State v. Hugle, 2011-1121, p. 23 (La. App. 4 Cir. 11/7/12), 104 So.3d 598, 615 ("Once the defense opens the door in cross examination on a subject, it becomes a proper subject for redirect", quoting State v. Steward, 483 So.2d 155, 157 (La. App. 4 Cir.1986) ). Moreover, the defendant's accusation of burden shifting is unfounded. Mr. Dubois' response as to why a portion of the DNA is reserved for further testing was given in explanation of usual operating procedure, not as the defense claims, to assert the defense had any obligation to perform testing on the sample or to prove his innocence. Mr. Dubois specifically indicated a sample quantity was reserved in the event the defendant chose to contest the DNA test results.

Evening assuming the State's questioning on re-direct was improper, the defendant has not shown any prejudice. Defense counsel strenuously impressed upon the jury that the defendant was constitutionally shielded from proving his innocence and had no obligation to perform any testing of evidence.

The uncontroverted DNA and testimonial evidence in this case proved the defendant guilty of second degree murder and armed robbery. The defendant's accusations of "burden shifting" is unfounded. The trial court did not err in its ruling.

ASSIGNMENT OF ERROR NUMBER 4

In a final assignment, the defendant complains of sentencing errors.

First, the defendant contends the trial court erred by imposing sentence for his second degree murder conviction with the prohibition of parole eligibility for a stated term of years. The defendant argues the trial court's decision to deny him parole eligibility for forty-five years is contrary to State v. Montgomery, 2013-1163 (La. 6/28/16), 194 So.3d 606 (per curiam ) and circumvents La. R.S. 15:574.4E(1). This portion of this assignment of error has merit.

Here, the trial judge conducted a Miller hearing on July 8, 2015, and on September 18, 2015, sentenced the defendant to the mandatory sentence of life imprisonment at hard labor, with the possibility of parole after serving forty-five years.

A conviction for second degree murder in Louisiana, La. R.S. 14:30.1 mandates a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. However, in 2012 the United States Supreme Court, in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), held that a state's statutory sentencing scheme that mandates life imprisonment without parole, for those offenders under the age of eighteen years at the time they committed a homicide, violates the Eighth Amendment prohibition of "cruel and unusual punishment." The Miller Court did not prohibit life imprisonment without parole for juveniles, but instead required that the statutory sentencing scheme authorize a sentencing court to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles who have committed a homicide. State v. Simmons, 2011-1810, p. 2 (La. 10/12/12), 99 So.3d 28 (per curiam ).

In 2013, in response to Miller v. Alabama, supra, the Louisiana Legislature enacted La. C.Cr.P. art. 878.1 which required the district court to conduct a hearing "[i]n any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder or second degree murder where the offender was under the age of eighteen years at the time of the commission of the offense ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of La. R.S. 15:574.4(E)(1)."

The State concedes that the trial court exceeded its authority by imposing its own period of imprisonment to be served by the defendant before he could become eligible for parole. However, the State contends amending the sentence is not the proper remedial action. Instead, the State advocates that the matter be remanded for another Miller sentencing hearing to determine "whether the defendant should be eligible for parole in the first place." The State reasons "[I]t is presumptuous to assume that just because the trial court awarded the defendant parole eligibility initially, it would rule the same way with the knowledge that the defendant would be parole eligible at least ten, if not twenty, years earlier than with the initial sentence." Id. The State supports its position citing the trial court's observations of the defendant as one of the worst offenders.

Prior to sentencing on the second degree murder conviction, the trial judge addressed the defendant:

Mr. Harrison, after this Court conducted a [ Miller ] ... this court heard compelling testimony from both the victim's family and your own, and at that hearing, testimony which clearly shows that you have forever adversely affected the life course of an entire family. You brutally and callously took the life of [the victim]. When you did that, you took a husband from his wife, you took a son from his mother, you took a father from his son, you took a friend and worthy asset of Algiers ... Yet, despite the moving testimony of all people affected, you sat on this witness stand and did not display a single iota of remorse for the heinous and senseless killing for which you were convicted. By your heatful (sic) action, you have instilled fear in both the [victim's family] and this entire community.
No grandmother raising her child ever envisions the child growing up to be a criminal defendant, much less a convicted murderer. Make no mistake, you have forever damaged the psyche of both the [victim's family] and your own family. Indeed, you have visited an eternal plague upon bothouses. Your violent criminal actions not only in this case, but one in which you attempted to commit an armed robbery, does not escape this judge's conscience or attention.
Balancing this with your youth and lack of parental guidance as a child, the Court finds that serving 45 years, flat, hard time, before being eligible for parole serves the interest of justice.

In this case, the district court possessed the authority to sentence the defendant to life imprisonment without parole but instead elected to restrict parole eligibility for a fixed number of years. While that specific restriction on parole eligibility on the life sentence was unauthorized by law, as a result of his armed robbery sentence, the court has already imposed a sentence that ensures the defendant will not be released before he serves forty-five years in state custody. Only then might the defendant become eligible for parole (provided he has satisfied the conditions set out in La. R.S. 15:574.4(E) ), which in any case does not suggest that he will ever be released during his lifetime. Given the forty-five-year, parole-ineligible sentence on the armed robbery count, will give effect to the court's intent that the defendant not be released earlier, a remand to the district court for another Miller hearing, at which time the court would have the opportunity to impose a harsher term (life imprisonment without parole), is unwarranted in this case. Cf. North Carolina v. Pearce , 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969) (imposition of a greater sentence after a retrial leads to presumption of impermissible vindictiveness based on the exercise of the constitutionally protected right unless the court sets forth for the increase, based upon "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.")

The second sentencing error complains that the defendant was sentenced to serve forty-five years at hard labor on the armed robbery conviction, but the trial judge failed to address his parole eligibility as to that sentence.

There is no indication in the record that the trial court ordered that the defendant's sentence for armed robbery be served without benefits as statutorily mandated. See La. R.S. 14:64. However, even if the trial court failed to articulate those restrictions at sentencing, the error does not require corrective action by this Court. La. R.S. 15:301.1(A) and (C) provide that the statutory restrictions are included in the sentence given regardless of whether they are specifically imposed in the sentencing court. See State v. Williams , 2000-1725, pp. 14-15 (La. 11/28/01), 800 So.2d 790, 801.

Moreover, to the extent that the defendant relies on State ex rel. Morgan v. State , 2015-0100 (La. 10/19/16), 217 So.3d 266, 270-271, which held that a ninety-nine-year, parole-ineligible term for a non-homicidal offence committed by a juvenile violated due process because it effectively denied the offender the possibility of release during his lifetime, for the proposition that his forty-five-year sentence is likewise unconstitutional, because the term guarantees him release by the time he will be aged sixty-two, his claim lacks merit. In addition, unlike the offender in Morgan , the defendant has also been convicted of homicide, and has received a life (parole-eligible) sentence for that offense.

This portion of this assignment of error has no merit.

MOTION TO DISMISS THE APPEAL

On October 12, 2017, the State filed a motion to dismiss the defendant's appeal on the basis it was untimely. On October 19, 2017, this Court ordered that the merits of the motion to dismiss be determined in conjunction with this appeal.

The State argues the defendant's appeal is untimely because his convictions for second degree murder and armed robbery with a firearm became final on November 4, 2015, the date he was sentenced. The State notes that La. C.Cr.P. art. 914(B)(1) mandates that an appeal must be made no later than thirty days after rendition of judgment or ruling from which the appeal is taken. The State points out that the defendant exceeded the time limitation implemented by La. C.Cr.P. art 914(B)(1) because the defendant's motion for appeal was not filed until March 1, 2016, one hundred eighteen days after the date his convictions became final.

The appropriate procedural remedy for a defendant seeking to exercise his right to appeal after his conviction and sentence become final is a timely-filed application for post-conviction relief seeking an out-of-time appeal pursuant to La. C.Cr.P. art. 924 - 930.7. State v. Gray, 2004-1272 (La. App. 5 Cir. 4/26/05), 902 So.2d 1060, 1061.

There is no indication in the record that the defendant ever intended to waive his constitutionally protected right to appeal his convictions and sentences and he would be entitled to an out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336, 338 (La. 1985), in which the Supreme Court acknowledged the "constitutional right to appeal (or to other review on the record) in criminal cases in Louisiana when the defendant is to be subjected to imprisonment or fine" under La. Const. art. I § 19. Id. , 475 So.2d at 339. The Court also noted that there exists no precise statutory authority for providing relief to convicts who have suffered a deprivation of their right to appeal. Id., at 340. The court proceeded to craft a rule according to which:

The trial court may grant post conviction relief reinstating defendant's constitutional right to appeal after the time for appealing has elapsed, after due consideration of such facts as the length of the delay in defendant's attempt to exercise the right and the adverse effect upon the state caused by the delay in cases such as those in which the defendant was not substantially notified at sentencing of his right to appeal or those in which the defense attorney was at fault in failing to file or perfect a timely appeal.

The defense herein filed its motion for appeal well within the two-year period prescribed for filing an application for post-conviction relief seeking an out-of-time appeal pursuant to La. C.Cr.P. art. 924 - 930.8. Under these circumstances, remanding the case to the district court to address the timeliness of the appeal would be a waste of time and judicial resources.

Therefore, we will consider the untimely-filed motion for appeal as timely-filed application for post-conviction relief and deny the State's motion to dismiss the appeal.

CONCLUSION

Based upon the record before this court, applicable statutes and jurisprudence we find:

The defendant's convictions are affirmed;

The State's Motion to Dismiss the Appeal is denied;

The defendant's sentence for armed robbery with a firearm pursuant to La. R.S.14:64.3, is vacated and remanded for resentencing or clarification as to whether the sentence included the enhancement provision as prescribed by La. R.S. 14:64.3 ; and

The trial court is further ordered to resentence the defendant on his second degree murder conviction under the provisions of La. C.Cr.P. art. 878.1.

CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED FOR RESENTENCING

      In the calls, the defendant is heard conversing with his father and denying involvement in the shooting. In another of the calls, the defendant's father cautions the defendant not to talk to anyone about his case. Additionally, the father warns the defendant that the numbers the police have on him are "bad ... 1 in 77.3 million."

      The defendant stood and displayed his mouth for the jury. The defense offered this testimony to rebut the testimony of the State's witnesses that the defendant was not missing any teeth on the day of the shooting.

      Second degree murder is the killing of a human being where "the offender has the specific intent to kill or inflict great bodily harm ..." La. R.S. 14.30.1. La. R.S. 14:10(1) defines specific criminal intent as: "...that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." State v. Davenport , 2016-0223 (La. App. 4 Cir. 10/18/17), --- So.3d ----, 2017 WL 4700652.
      La. R.S. 14:64(A) defines armed robbery as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon."

      Ms. Schenck (juror # 24) and Ms. Cox (juror # 27) were members of the second voir dire panel.

      Prior to its amendment in 2017, La. R.S. 15:574.4 subparagraph (E) provided that juvenile homicide offenders serving life sentences for first or second degree murder, who were indicted before August 1, 2017, as the defendant herein, were mandated to serve thirty years before being considered for parole. However, in 2017 the legislature amended La. R.S. 15:574.4 to provide that those juvenile homicide offenders serving life sentences for first or second degree murder and who were indicted prior to August 1, 2017, were covered by reenacted subparagraph (G), which reduced the number of years that must be served before the offender becomes parole eligible, from thirty-five to twenty-five years.

      The defendant in this case was seventeen years old at the time of these offenses. The record lists his date of birth as July 7, 1994. Rights of an Arrestee or Suspect.

      La. C.Cr.P. art. 878.1 was amended, effective August 1, 2017. Subsection (B) presently provides:
      (2) If an offender was indicted prior to August 1, 2017, for the crime of ... second degree murder (R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:
      (a) If the court determines at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).