author: Judge Roland L. Belsome

text:
    STATE of Louisiana v. Robert MURRAY
    NO. 2016-KA-0622
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 5, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA
    Holly Herrle-Castillo, P.O. Box 2333, Marrero, LA 70073, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins)
   Judge Roland L. Belsome

| Robert Murray appeals his convictions and sentences for conspiracy to commit armed robbery with a firearm and armed robbery. Murray was sentenced to ten years on each count. He also appeals the trial court’s denial of his Motion for New Trial. For the reasons that follow, we reverse the denial of the motion for new trial and remand.

STATEMENT OF THE CASE

In November 2012, the State filed a bill of information charging Robert Murray with one count of armed robbery with a firearm and one count of conspiracy to commit armed robbery with a firearm. The State also charged Trent Mackey and Julian Haynes as Murray’s co-defendants. In February 2013, the trial court granted the motion to sever trial for Mackey and Haynes.

Murray pled not guilty to all charges. The trial court found probable cause and denied his Motions to Suppress Identification and Statement. In June 2013, Murray proceeded to a jury trial. He was convicted by a unanimous jury on both charges. Mackey was found not guilty in July 2013, after a jury trial, and the State ^subsequently entered a nolle prosequi as to the charges against Haynes in August 2013.

Murray filed a motion for new trial in August 2013. In January 2016, he filed a Supplemental Motion .for New Trial and a Motion for Judgment Notwithstanding the Verdict for the conspiracy conviction.

The trial judge denied all post-trial motions, defense counsel waived delays and the trial court sentenced Murray to ten years on each count to run concurrently, with credit for time served. This appeal followed.

ASSIGNMENTS OF ERROR

Murray presents two assignments of error on appeal. First, he complains that the evidence is insufficient to prove his identity as a participant in the charged crimes. Second, he asserts • that the ■ trial court erred'in denying his Motion for New Trial as newly discovered evidence demonstrates that the State’s key witness against him committed perjury at trial.

FACTUAL BACKGROUND

In July 2012, Megan Wales called the police to report that she and her friend and co-worker Trent Mackey had been robbed at gunpoint by two men who had broken into her apartment on Broadway Avenue in New Orleans. She told the police that she heard noises outside, and when she opened the door to check two men burst into her apartment; one held a gun to her head and ordered her to. lie down on the floor and ordered Mackey to face the wall. She reported that the men Ustole her cellphone, purse and laptop, and Mackey’s cellphone; before they fled on foot.

Wales told police that she chased the robbers down Broadway Avenue while Mackey left the scene in his truck. She stated that when she caught up with the assailants and demanded her items back, they gave her back her phone and computer, but kept the other items. Wales described the assailants as medium-complected black'males, between- eighteen and twenty years old, approximately 5’8‘ to 5’10‘ in height, with clean haircuts.

On the day of the robbery, Detective Swalm canvassed the neighborhood for video surveillance cameras, and learned from a neighbor that a dark color, small, four-door sedan, with no license plate had been captured on' a home camera security system circling the block prior to. the armed robbery. The video footage showed Murray’s grey Chevy Cobalt circling the 600 block of Audubon Street twice prior to the robbery.

A few days after the robbery, Wales reached out to Detective Swahm In this meeting she admitted that she was providing marijuana for Mackey when the robbery took place, and told him -that the robbers had taken the marijuana along with the money from the sale. She also shared with Detective Swalm text messages from Mackey she had received prior to the robbery that she thought were suspicious. She returned to the police station with Detective Swalm whére she [ 4made an official statement and aided the police in drafting a composite sketch of one of the alleged assailants.

The detective obtained a subpoena for Mackey’s phone records, and learned that he had been in contact with Murray prior to and on the day of the robbery. Mackey’s records reflected phone calls-with Wales and with a man named Julian Haynes close to the time of the robbery as well.

Detective Swalm used information from the phone records request to locate Murray in the FIC (field interview card) database, and discovered that he had been stopped in his grey Chevrolet Cobalt, which had on a temporary license tag. The detective subsequently prepared a six-person photographic line-up which contained Murray’s photograph and presented the line-up to Wales. She positively identified Murray as one of the robbers.

Detective Swalm obtained a warrant for Murray’s arrest for armed robbery. When the detective showed Murray the video footage of the Chevrolet Cobalt and informed him of Wales’s positive identification of him as one of the perpetrators, he waived his Miranda rights and gave a recorded statement. In his statement, he said he was contacted by Julian Haynes, who told him that he knew Mackey, who knew someone with a large supply of marijuana for sale. Murray never admitted entering the victim’s'apartment, but did confirm that the Chevrolet Cobalt seen in the surveillance was his. Subsequent to his recorded statement, he identified |fiMackey from a six-person photo lineup. Shortly after, Trent Mackey and Julian Haynes were also arrested for participating in the robbery.

Robert Murray’s Trial

At Murray’s trial, the State’s key witness was Wales. Among other things, she testified that Murray was the man who entered her apartment armed with a gun. She further testified that while she did procure marijuana for Mackey on at least three occasions before this incident, she was not a drug dealer'and was not making a profit on that sale or any other.

The transcript reflects the following testimony elicited from Wales with regard to the transaction the day of the robbery: DEFENSE COUNSEL:

Q. Right. You are selling your own weed to Mr. Trent, right? You’re not selling somebody’s weed, right?
A. It was somebody not of my possession.
Q. I’m sorry.
A. It was not mine. It was from a friend of mine. And it was nothing I was making a profit for. I was not a drug dealer, and I’m not a drug dealer, if that’s what you are asking, sir.
Q. And on the previous times that you sold drugs to Mr. Trent, that was also a friend’s weed that you were selling, and you didn’t make any profit off that either, did you?
A. That’s correct.

Wales was also less than truthful when confronted with questions about her relationship with Jamie Ratcliff, a friend of Mackey’s whom she had exchanged text messages with for the purposes of selling him marijuana. When Wales was [ Basked at Murray’s trial about her dealings with Jamie Ratcliff and her drug dealing activities in general, she testified that she only knew Ratcliff as Mackey’s friend and that she had never procured marijuana for him. She testified that “[h]e [Jamie Ratcliff] had contacted me for marijuana and then called me as well as, for cocaine, which I was not able to get for him. My only encounters regarding marijuana, small amount, was for Trent [Mackey].” She then denied ever referring to the quantity of marijuana she had for sale as “McNug-gets” or “coming in many different flavors.”

Murray chose to testify at trial. He denied any participation or involvement in the robbery. He testified he had never been inside Wales’s apartment. Murray stated that he had been in contact with Mackey around the time of the robbery because he had been asked to find a buyer for the marijuana Mackey intended to sell. Murray testified that he drove two unarmed purchasers to an apartment on Broadway Avenue on the day of the robbery. Murray said he knew only one of the purchasers by name, D-Nice. D-Nice brought the second man, who was unknown to the defendant. He testified that he drove around the block two times waiting for the purchasers to complete their transaction. According to Murray’s testimony, when he picked them up the only thing they had at that time was a backpack full of marijuana.

He stated he did not learn he had been implicated in a crime until two months later when the police arrived at his house. He went voluntarily to the |7station and spoke with authorities in the presence of his father. After talking to the police, he was booked with armed robbery.

The jury returned a unanimous guilty verdict on both counts.

Trent Mackey’s Trial

Mackey’s trial went forward a month after Murray was found guilty. Wales was again the key witness for the State. Her testimony at Mackey’s trial was substantially different from her testimony at Murray’s trial.

At Mackey’s trial when Wales was once again confronted with questions regarding her drug dealing activities, information came out that proved Wales was much more active in selling marijuana than she led the jury to believe in Murray’s trial. Wales admitted at Mackey’s trial to selling marijuana to other friends of hers, including Jamie Ratcliff. She also testified that Ratcliff came to her apartment the time she procured the marijuana for him, which conflicted with her assertion at Murray’s trial that Ratcliff had never been to her place by himself. At Mackey’s trial, she became defensive when questioned further about her dealings with Ratcliff. The court had to reprimand her and instruct her to answer the questions after she argued that she did not know how Ratcliff fell into the case. Defense counsel refreshed Wales’s recollection by showing her about twenty pages of text messages between Ratcliff and herself and then introduced the messages into evidence after she áuthenticated them. The text messages indicate that Wales sent |sthe following text message to Ratcliff on July 5, 2012: “on deck! many new flavors on the menu added just today, please call if you are interested in menug-gets with your choice of sauce/size! haha happy thursday.” Ratcliff replied that he needed some; she asked how much and then instructed him to come by her place and that the cost would be $50.

Mackey was found not guilty.

Julian Haynes and Megan Wales

Julian Haynes’s charges were dismissed after Mackey’s not guilty verdict. No one was charged with any narcotics violations in this ease. The State and Wales contend that she was not given a deal in exchange for her testimony, but it is of note that after the conclusion of Murray’s and Mack-ey’s trials her charge of aggravated battery with a weapon in an unrelated case was reduced to obstruction of justice and she was sentenced to probation.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Murray complains that the evidence is insufficient to support his convictions for armed robbery and conspiracy to commit armed robbery. More specifically, he challenges his identification as a participant in the crimes.

“When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence” The standard for determining an insufficiency of |flevidence claim is well-settled. When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the Jackson standard, under which the 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.”

Murray does not argue the State failed to meet its burden of proof in establishing the elements of the offense of armed robbery, but rather that the evidence presented at trial was insufficient to prove his identity as a participant in the crimes.

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Based on Wales’s eyewitness testimony, the composite sketch she aided the police in drafting, and her subsequent identificar tion of Murray in a six-person lineup, we cannot say that a reasonable jury could not have found the identification sufficient.

MOTION FOR NEW TRIAL

Murray asserts in his second assignment of error that his motion for new trial should have been granted on the grounds of newly discovered evidence which proved that the sole eyewitness against him, Megan Wales, committed perjury at | mtrial. Specifically, he claims that Wales’s denial at his trial that she engaged in dealing marijuana for profit was proven false at Mackey’s trial. Murray avers that the State had knowledge that Wales was not being truthful in her testimony, yet failed to take any steps to correct the false testimony. He claims that he should be granted a new trial because Wales’s credibility is material to the case, and he did not receive a fair trial as a result of her perjury. He contends that the ends of justice require that he be given an opportunity to confront Wales with this new evidence. We agree.

Where the state allows a state witness to give false testimony, “a reviewing court must reverse the conviction if the witness’s testimony reasonably could have affected the jury’s verdict, even if the testimony goes only to the credibility of the witness.” The defendant must show that the state “acted in collusion with the witness' to facilitate false testimony.” Additionally,' even where the state does not facilitate ■ the perjury, it has a duty to correct'false testimony. “When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial,” “However, the grant of a new trial based upon such a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the prosecution knew they were false; and (3) the [^statements were material.” Materiality has been described in terms of a “reasonable probability” of a different outcome. “To say, that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.”

As discussed above, the record indicates that Wales presented false testimony at Murray’s trial, as illustrated by the striking differences in her statements at his trial versus those she made at Mackey’s trial regarding her drug dealing activities.

The record further indicates that ■ the State was aware that Wales was engaged in dealing marijuana to individuals other than Mackey, yet did nothing to correct her testimony when she stated otherwise at Murray’s trial. Detective Swalm spoke with Wales on multiple occasions during his investigation and was given permission to go through her text messages with Mackey. He was aware that she dealt marijuana and provided this information to his supervisors, who chose not to pursue charges against Wales. His report, which was redacted when it was provided to defense counsel, included the initials “J.R.” in reference to Jamie Ratcliff, indicating that he and Wales had spoken about her dealings with Ratcliff. This information leads to a reasonable inference that the State was aware that Wales was not being truthful when she testified at Murray’s trial. At the very least li¡>the State knew that the testimony that was elicited from Wales at Mackey’s trial was inconsistent from her testimony in Murray’s trial.

Wales’s statements were material as the State’s case against Murray rested heavily upon a determination of her credibility, considering that Murray’s own testimony contradicted Wales’s version of events, Murray’s jury was led to believe that Wales was only providing marijuana on a very occasional basis to her friend and coworker- Mackey, while the truth was that she actually dealt marijuana to multiple individuals in varying amounts. As the only eyewitness against Murray, Wales’s credibility as to the truthfulness of her testimony is of the utmost importance in this case. It is reasonably probable that had the jury been made aware of her drug dealing activities and had the defense been given an opportunity to impeach her with this information, a different verdict would have resulted. It is of note that Mackey was found not guilty after Wales was confronted at his trial about her marijuana dealing practices and her false testimony at Murray’s trial.

Under these circumstances, wheré the sole eyewitness against Murray gave false testimony regarding her character, the trial court abused its discretion in denying a new trial. Only through the granting of a new trial can the defendant have the opportunity to examine Wales about her dealing marijuana and her providing-false testimony, so as to allow the jury to accurately assess her credibility.

^CONCLUSION

For these reasons we reverse the trial court’s denial of Murray’s motion for a new trial and remand the case for a new trial.

REVERSED AND REMANDED

JENKINS, J., CONCURS IN THE . RESULT

      . During this investigation, the defendant confirmed to Swalm that he was driving the ’ grey ■ Chevy ' Cobalt captured in the surveillance footage.

      . Julian Haynes was suspected of being involved in the crime early in the investigation, but charges against him were ultimately dropped,

      ., At a later, date, Detective Swalm presented Wales with a six-person lineup containing Julian Haynes’s photograph, but she was unable to make a positive identification.

      . Defense counsel was encouraged by Mack-ey’s attorney to ask about these particular terms with respect to Wales’s drug dealing.

      . The text messages were obtained by defense counsel directly from Jamie Ratcliff himself and were not provided to the appellant’s counsel until after the conclusion of Mackey’s trial. The record indicates that the clerk of court was unable to locate the original exhibits, but that Judge Landrum-Johnson ordered that copies of the messages that had been preserved by the Orleans Parish District Attorney's Office be filed and forwarded to this Court.

      . State v. Hearold, 603 So.2d 731, 734 (La. 1992).

      . State v. Neal, 2000-0674, p.9 (La. 6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La. 1984)).

      . State v. Weary, 2003-3067, p. 18 (La. 4/24/06), 931 So.2d 297, 311.

      . State v. Phillips, 2010-0582, pp. 8-9 (La.App. 4, Cir. 2/17/11), 61 So.3d 130, 136, writ denied, 2011-0582 (La. 10/7/11), 71 So.3d 311, citing Napue v. Illinois, 360 U.S. 264, 269, 79 5.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959).

      . State v. Broadway, 96-2659, p. 17 (La. 10/19/99), 753 So.2d 801, 814.

      . Napue, 360 U.S. at 269, 79 S.Ct. 1173.

      . Phillips, 61 So.3d at 136, citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . Phillips, 61 So.3d at 136, citing United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).

      . State v. Rubens, 2010-1114; p. 53 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 63, writ denied, 2012-0374 (La. 5/25/12), 90 So.3d 410, and writ denied sub nom. State ex rel. Rubens v. State, 2012-0399 (La. 10/12/12), 99 So.3d 37, citing Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

      . Rubens, 83 So.3d at at 53, quoting Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991).


source: Caselaw Access Project

author: JAMES F. MCKAY III CHIEF JUDGE

license: Public Domain

text:
    STATE of Louisiana v. Iren COOPER
    NO. 2016-KA-1093
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 5, 2017

      LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, DONNA ANDRIEU, ASSISTANT DISTRICT ATTORNEY, SCOTT VINCENT, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, Counsel for the State
    HOLLI HERRLE-CASTILLO, LOUISIANA APPELLATE PROJECT, P.,0. Box 2333, Marrero, Louisiana 70073-2333, Counsel for Defendant/Appellant
    (Court composed of Chief Judge James F. McKay III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   JAMES F. MCKAY III CHIEF JUDGE

liThe defendant appeals the trial court’s rulings denying his motion for mistrial based on the - late disclosure of Brady material and also asserting that he was not Mimndized prior to -the taking of DNA samples. For the reasons that follow, we affirm- the defendant’s conviction and sentence.

STATEMENT OF CASE

On March 19, 2013, the defendant was charged by bill of information with one count of attempted second degree murder, in violation of La. R.S. 14:(27)30.1, and one count of attempted armed robbery while armed with a firearm, in violation of La. R.S. 14:(27)64.3. The defendant appeared for arraignment on March 22, 2013, and entered a plea of not guilty. On April 1, 2013, an omnibus motion for discovery; motion to preserve evidence; motion for suppression of statement, evidence and identifications; and motion for preliminary examination were filed. The hearing on the motions was continued multiple times. On May 16, 2014, the defendant obtained new counsel, On May 23, 2014, the defendant’s new counsel filed a second motion to suppress evidence, suppress statement, and suppress 12identification. The defendant also requested a preliminary examination. Additional motions for continuances were filed and granted. The trial court conducted a hearing on the motions on February 5, 2015. The trial court found probable cause and denied the defendant’s motion to suppress evidence and statement. The defendant was given until February 20, 2015, to file a motion to reconsider the trial court ruling on the motion to suppress the evidence. A pre-trial conference was set for February 20, 2015, and trial was set for April 28, 2015. The defendant was granted an extension of time.to file his brief, and the pre-trial conference was continued to March 27, 2015. The pre-trial conference was continued once more and set for April 2, 2015. The defendant filed his motion to reconsider the trial court ruling denying his motion to suppress the evidence on April 6, 2015. After a review of the defendant’s motion to reconsider its ruling on the motion to suppress, the evidence on March 27, 2015, the trial court determined that the ruling from February 5, 2015, would stand. The defendant sought supervisory ’ review in this Court, which was denied on August 4, 2015. State v. Cooper, 2015-0570 (La. App. 4 Cir. 8/4/15) (unpub.). The Louisiana Supreme Court denied writs on October 30, 2015. State v. Cooper, 2015-1637 (La. 10/30/15), 180 So.3d 299.

On March 26, 2016, a trial by jury ¡commenced. At the conclusion of the four-day trial, the jury returned guilty verdicts on all charges. On April 19, 2016, the defense filed motions for new trial, for arrest of judgment, and for mistrial, which the trial court denied. On April 20, 2016, the trial court imposed a sentence of twenty-five years without benefit of parole, probation, or suspension of sentence for the attempted armed robbery conviction and a concurrent forty-year sentence, without benefits, for the attempted second degree murder conviction. That same |3day, the defense filed an oral motion to reconsider the sentence, which was denied. On April 27, 2016, the defendant filed a motion for appeal which was granted.

STATEMENT OF FACT

On October 19, 2012, Mark Wright was shot during an attempted armed robbery in the parking lot of his-hotel, the Family Inn, at 6303 Chef Menteur in New Orleans, Louisiana. Mr. Wright had just opened the door to his car when a man pointed a gun at him and' demanded money. Mr. Wright was holding a backpack with a gun inside. As the robber grabbed the backpack, Mr. Wright managed to hold on to his gun. The robber shot Mr. Wright twice, once in the arm and once, in the side. Mr. Wright shot back twice and believed he injured the defendant.

Mr. Wright exited the truck, doubled over, and moved towards the rear of his vehicle, when he saw the robber sitting behind the -vehicle with his legs stretched out in front of him, Mr. Wright described the robber as a black male, thin, with matted down hair, Mr. Wright turned around to avoid the ’robber and made his way to the front of his vehicle, Mr. Wright fired two more shots in the direction of the l’obber.

After firing the two shots, Mr. Wright was shot again, this time in his back, leaving him paralyzed. The New Orleans Polic Department (“NOPD”)and Emergency Medical-Services (“EMS”) arrived, on the scene and- after stabilizing Mr. Wright, transported him to the hospital.

As part of his investigation, the lead detective on the case, Sergeant Gregory Powell (“Sgt. Powell”), advised dispatch to notify him if anyone was admitted with a gunshot wound to. any of the area hospitals. He was soon notified by Tulane Medical Center that a gunshot victim, Iren Cooper, had just arrived at the hospital. 14A crime scene unit was dispatched to the hospital and performed a gunshot residue test. At the motion hearing, Sgt. Powéll testified that Mr. Cooper consented to the test; however, at trial, Sgt. Powell- acknowledged that the crime scene unit had arrived at the hospital, performed the test, and left before he arrived. No testimony was provided as to the voluntariness of the consent by the officer who actually performed the gunshot residue test.

The crime lab photographed the scene at the Family Inn, ,and a hat with the STD trash company emblem was retrieved. Based upon 911 calls, two detectives followed the trail the robber allegedly took when he fled. The detectives discovered blood drops eight houses down the street, which were retrieved by the crime lab.

Sgt. Powell interviewed the defendant at the hospital. Sgt. Powell did not consider the defendant a suspect in Mr. Wright’s case in particular. He testified that anyone who went to a hospital that night with a gunshot wound would be investigated as a possible suspect, and his treatment of the defendant was the same as- his treatment of any other gunshot victim reporting to a hospital that night; A buccal swab was obtained from the defendant, and the defendant’s hands were tested for gunshot residue.

Mr. Wright was shown a photo lineup, which included the defendant at University hospital. He chose another individual from the lineup, stating the photo selected looked the most like the perpetrator.

The buccal swab and the blood samples recovered near the scene were sent -to the State Police Crime Lab for testing, DNA analyst Julia Nailor-Kirk testified that the defendant could not be excluded as the donor of the DNA profile obtained from the blood. The hat recovered near the back of Mr. Wright’s vehicle was also I ¿sent' to be tested for DNA. Ms, Nailor-Kirk testified that the defendant could also not be excluded as the donor of the DNA profile obtained from inside the- hat. She also testified that the statistical probability of finding an unrelated random individual among the black population with the same profile was one in 23 quintillion for the blood and one in 561 million for the hat.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant contends the trial court erred in denying his motion for mistrial for failure to timely disclose exculpatory evidence. The defendant asserts the State failed to inform him that the victim identified a different individual as the robber in a photographic lineup until the day before trial.

Due process requires that evidence that is both favorable to the accused and material either to guilt or' punishment be disclosed to the defense. See. Brady v. Maryland, Supra.

Louisiana Code of Criminal Procedure article 729.5 (A) sets forth the applicable sanctions for a failure -to comply with discovery in a criminal proceeding as follows:

Art. 729.5. Failure to comply; sanctions

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order, such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

| (¡Generally, “Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to respond to the State’s case, and to allow a proper assessment of the strength of the State’s case.” State v. Girard, 2012-0790, p. 4 (La. App. 4 Cir. 3/6/13), 110 So.3d 687, 690.

In State v. Coleman, 2014-0402 (La. 2/26/16), 188 So.3d 174, the Louisiana Supreme Court addressed.the late disclosure of evidence favorable to the defendant and stated:

The suppression of evidence favorable to the accused violates due process where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution; Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). Favorable evidence includes both exculpatory evidence and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 So.2d 956, 959 (La.1991). Moreover, late disclosure of favorable evidence may require reversal if the timing significantly impacted the defendant’s opportunity to effectively present the material. State v. Kemp, [20]00-2228, (La.10/15/02), 828 So.2d 540, 545-46. Still, Brady and the decisions that follow do not establish a general rule of discoverability and the state’s failure to disclose or late disclosure does not automatically mandate a reversal. Rather, the defendant must first show he suffered prejudice as a result. La. C.Cr. P. art. 921; see also United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976); State v. Willie, 410 So.2d 1019, 1030 (La.1982).

Id., pp. 36-37,188 So.3d at 203.

As this Court stated in State v. Hatfield, 2013-0813, pp. 39-40 (La. App. 4 Cir. 7/2/14), 155 So.3d 572, 597, “[i]t is within the trial court’s discretion under La.C.Cr.P. art. 729.5 to exclude evidence or enter any appropriate order to remedy a party’s violation of a discovery right.” Id. citing State v. Bourque, 96-0842, p. 15 (La. 7/1/97), 699 So.2d 1, 11.

[7In the case sub judice, the defendant contends he was prejudiced by the State’s disclosure the day before trial that the victim selected a different individual when shown a six-person photographic lineup. The defendant contends he was unable to effectively present the material at trial and that the fundamental fairness of his trial was compromised. In State v. Smith, 430 So.2d 31 (La. 1983), the defendant made a similar argument regarding the untimely disclosure by the State of a police offense report, which contained a description which did not match the defendant. The Court stated:

As stated previously, we find that the offense report which contained a misde-scription of the defendant was exculpatory and material, for it concerned the reliability of the victim, a crucial state witness. We assume, for the purposes of argument, that the police log was also Brady material.
The case at bar, however, is distinguishable from Brady, for we do not have a situation where withheld information was discovered only after conviction, but- one where the exculpatory evidence became available to the defense during trial. See United States v. Kaplan, 554 F.2d 577 (3rd Cir.1977). Not all cases involving late disclosure of exculpatory evidence result in reversible error. We must determine whether the late disclosure so prejudiced the defendant that he was denied his constitutional right to a fair trial. State v. Arnaud, 412 So.2d 1013 (La.1982); State v. Roussel, 381 So.2d 796 (La.1980); State v. Manning, 380 So.2d 46 (La.1980).
We find, in this case, that the state’s untimely disclosure of the offense report and the police log did not so prejudice the defendant as to deny him a fair trial. Both the offense report and the police log were submitted into evidence and brought to the attention of the jury. Officers Warren and Brown, who wrote the description in their respective reports, were fully cross-examined by defense counsel as to these reports. Moreover, the victim was called by the state as its last rebuttal witness. She reasserted that she had given a description to the officers which matched the defendant. However, rather than cross-examining the victim and using the police log and offense report, which were already in evidence, to question the certainty of her identification, defense counsel chose not to ask her any questions.
We do not approve of untimely disclosure of exculpatory information by the state. Late disclosure invites trial delay and risks reversal. State v. Roussel, 381 So.2d 796 (La.1980). Nevertheless, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial and the defendant is not entitled to a 18new trial on this issue, for the defendant was not deprived of a fair trial by the state’s late disclosure of exculpatory evidence.

Id. at 42 (Footnote omitted).

In State v. Dozier, 553 So.2d 931, 932-33 (La. App. 4th Cir. 1989), the record revealed the prosecution discovered before trial that the victim had participated in a photographic lineup but failed to identify the perpetrator. The defendant was not notified prior to trial. The victim’s trial testimony referred to the photographic lineup. The defendants moved for a mistrial, claiming that this was exculpatory material and required disclosure to the accused during pretrial discovery. This Court found:

The victim’s failure to identify the defendant from a photographic lineup was brought to the attention of the jury. Under the circumstances, the trial court did not err in denying a mistrial. The evidence against the accused was overwhelming and the defendants were not prejudiced by the nondisclosure. Even if the failure to timely disclose the information were error, it was harmless error. The defendant was not deprived of a fair trial by the State’s late disclosure of exculpatory evidence.

Dozier, 553 So.2d at, 932-33.

As in Smith and Dozier, the record and evidence in the case sub judice reflect the jury was aware the victim did not identify the photograph of the defendant as the perpetrator in the photographic lineup. The jury was also aware the victim chose the photograph of another individual as looking “more similar” to the person who shot him.

The defendant has not shown he was prejudiced or denied a fair trial by the untimely notification that the victim picked another individual from the photographic lineup. The trial court did not err in denying the defendant’s motion for a mistrial. This assignment of error has no merit.

^ASSIGNMENT OF ERROR NUMBER 2

The defendant contends the trial court erred in finding the defendant’s consent to the buccal swab was valid because the defendant had not been given his rights according to Miranda prior to giving consent.

At the outset, the Louisiana Supreme Court in State v. Palmer, 2009-0044 (La. 7/1/09), 14 So.3d 304, stated, “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search....” Id. at p. 10, 14 So.3d at 310. (quoting Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 1471, 161 L.Ed.2d 299 (2005) quoting Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)). The Court in Palmer also made it clear that a defendant’s consent to a search is a non-communicative and non-testimonial statement falling completely outside of the Fifth Amendment and therefore outside of the Miranda protections. Id.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974 prohibit unreasonable searches and seizures. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Lain, 347 So.2d 167 (La. 1977). The State bears the burden of proving that one of these exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Tatum, 466 So.2d 29 (La. 1985).

It is well-settled that an appellate court should review a trial court’s ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 2009-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751 ( citing State v. Hampton, 98-0331, p.18 (La. 4/23/99), 750 So.2d 867, 884). Moreover, a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 2008-2262, p.5 (La. 7/6/10), 45 So.3d 577, 581. As noted by the Court in State v. Thompson, 2011-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563:

The analysis may be further broken down into the component parts of the trial court decision. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Wells, 2008-2262, p. 4; 45 So.3d at 580; State v. Hunt, 2009-1589, p. 6 (La. 12/1/09); 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La. 3/8/02); 811 So.2d 875.

The Louisiana Supreme Court in State v. Lee, 2005-2098 (La. 01/16/08), 976 So.2d 109, found that the use of a buccal swab to obtain a DNA sample from an individual constituted a search. The Court in Lee stated:

A warrantless search is per se unreasonable unless it falls within certain limited, well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Zito, 406 So.2d 167 (La.1981). Warrants therefore are generally required to search an individual’s home or person, “unless” the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” State v. White, 399 So.2d 172, 175 (La.1981). The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Vessell, 450 So.2d 938, 943 (La.1984).

Id. at pp. 14-15, 976 So.2d at 122. (emphasis in original).

In Lee, the State argued that the defendant consented to produce DNA samples through the use of a buccal swabbing of both cheeks. Therefore, the State luargued the defendant’s consent obviated the necessity for a search warrant. In the case sub judice, the state argues that Sgt. Powell obtained the consent of defendant prior to utilizing the buccal swab or the GSR test. As stated in Lee:
For this argument to be 'successful, the State will have to hurdle the burden of showing more than acquiescence to a claim of lawful authority. As stated in Bumper v. North Carolina:
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Id. at p. 17, 976 So.2d at 124.

In Lee, law enforcement officers went to the defendant’s home, advised him they had a court order compelling him to submit to swabbing to obtain his DNA, and showed him a subpoena duces tecum. The Court in Lee found that under these facts, it was clear that the defendant simply acquiesced to the lawful authority of law enforcement; and it could not be said that such acquiescence constituted free and voluntary consent. Therefore, the Court found no merit to the State’s contention that the defendant consented to the buccal swab. Id. at p. 18, 976 So.2d at 124.

In Lee, the Louisiana Supreme Court analyzed whether the , DNA evidence, which had been obtained without a valid search warrant, was nevertheless admissible under the inevitable discovery rule. The Court found that the defendant’s DNA would have been inevitably collected and matched; thus, the trial |12court properly denied the defendant’s motion to suppress. Lee at p. 31, 976 So.2d at 131-32.

In the case sub judice, the defendant contends that Sgt. Powell intentionally misled the defendant by not informing him that he was a suspect, or that he was free to refuse to give the DNA sample. However, Sgt. Powell stated at the hearing on the motions that the defendant was not in custody at the time the buccal swab was obtained and the GSR test was performed. Sgt. Powell stated that the defendant freely and voluntarily consented to the buccal swab and GSR test. Sgt. Powell stated that he was treating the defendant “[a]s the victim of an attempted robbery at the intersection or near the intersection of Elysian Field and Derbigny.” Sergeant Powell did not inform the defendant that he was investigating a separate shooting or that the defendant was a potential suspect. Sergeant Powell stated:

I went to the hospital—or anyone that would have been shot at that time in any parish or connecting parishes that they may have been a suspect. But that doesn’t mean that everybody would have been the perpetrator. I have to dispel if they were a suspect or not.’ And the only way I can do that, I have to at least interview him to see if it was a legitimate different robbery and shooting. It’s not the fact that we only get one shooting or one robbery at a time in New Orleans, we may get six or seven at a time. So I have to at least talk to them to find out if it happened at the scene or not. So when he said he was a victim of a robbery, it’s not uncommon that I can have a robbery and a shooting in New Orleans East and a robbery and a shooting uptown and a robbery and a shooting across the river....
And that’s the way I treated him, as a victim.

Sgt. Powell’s testimony at trial was substantially the same as the testimony provided the hearing on the motions.

A review of the record reflects that the trial court did not err in denying the defendant’s motion to suppress the evidence. This claim has no merit.

CONCLUSION

| MFor the above stated reasons, we affirm the defendant’s convictions and sentences.

AFFIRMED

JENKINS, J., CONCURS IN THE RESULT

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: Judge Edwin A. Lombard

text:
    James ENGLAND v. Alina Julia ENGLAND James England v. Alina Julia England
    NO. 2016-CA-0936, NO. 2016-CA-1229
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 28, 2017

      Marc D. Winsberg, Robin Penzato, Arnold Jonathan D. Gamble, WINSBERG & ARNOLD, LLC, .650 Poydras Street, Suite 2050, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    ' Richard Ducote, 318 East Boston Street, 2nd Floor, Covington, LA 70433, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L, Belsome, Judge Sandra Cabrina Jenkins)
   Judge Edwin A. Lombard

Lin this consolidated appeal, the Appellant, Alina Julia England, seeks review of four judgments: a March 9, 2016 judgment denying her motion to recuse Judge Naki-sha Ervin-Knott; a March 31, 2016 judgment designating the Appellee, James England, as the domiciliary parent; a June 10, 2016 judgment granting Mr. England’s motion for sanctions against Ms. England, and awarding him $96,450.19 in court costs, attorneys’ fees; and an August 17, 2016, judgment granting Mr. England’s Exception of No Cause of Action, dismissing with prejudice Ms. England’s Petition to Annul Judgment filed on June 3, 2016, and awarding Mr. England costs and attorney’s fees in the sum of $1,592. Finding no error, we affirm.

Facts and Procedural History

This instant appeal involves an acrimonious custody suit between the parties ultimately resulting in a judgment awarding sanctions, attorneys’ fees, and court costs to Mr. England and against Ms. England.

In 2014, Mr. England filed a petition for divorce from Ms. England, wherein he also sought joint custody of the parties’ two minor children. Ms. England, in response, filed a reconventional demand and a petition for protection from abuse, |2under La. Rev. Stat. 46:2131, wherein she sought sole custody due to Mr. England’s alleged physical abuse of her and the minor children. The parties subsequently entered into an agreement with mutual injunctions prohibiting abuse, harassment, stalking, or threatening one another. Additionally, Ms. England dismissed the petition for protection from abuse, and Mr. England consented to supervised visitation with the children. On January 26, 2015, the district court executed a judgment detailing the agreement.

On March 4, 2015, Ms. England filed a petition for protection from abuse against Mr. England asserting that he punched one of the children in the stomach during a supervised visit. She further indicated that the incident was reported to the New Orleans Police Department, the Department of Children and Family Services, and the Audrey Hepburn Care Center. Moreover, in May 2015, she filed an addendum to the petition for protection from abuse alleging:

• the minor children suffered from anxiety following visits with their father and resulting in nightmares and bedwetting;
• Mr. England twisted the arm of one of the children;
• Mr. England did not feed the children while they were with him;
• Mr. England threw one of the children into the deep end of a .pool despite the child not knowing how to swim; and,
• Mr. England once held the head of one of the children under water.

A three-day trial was held on both petitions resulting in the district court issuing a judgment dismissing the petitions with prejudice oh July 13, 2015, with reasons for judgment. Ms. England did not appeal the judgment.

Thereafter, approximately two weeks prior the custody trial, Ms. England filed a motion to recuse Judge Ervin-Knott, who denied the motion and signed an I ^expedited order for re-allotment. The motion was re-allotted to Judge Piper Griffin, who denied it on March 16, 2016. The case was then re-allotted back to Judge Ervin-Knott.

Shortly thereafter, a two-day custody trial was held resulting in the parties being awarded joint and shared custody with Mr. England being designated as the domiciliary parent. The district court rendered a judgment on March 31, 2016 and Reasons for Judgment.

Mr. England later filed a motion for sanctions, attorneys’ fees, and court costs against Ms. England wherein he asserted that she filed numerous frivolous petitions for protection from abuse against him on her behalf and on behalf of the parties’ minor children without exercising due diligence prior to the filings. On June 10, 2016, the district court granted his motion and awarded him $95,460.19 representing reasonable attorneys’ fees, court costs, and related costs he incurred as a result of Ms. England’s March 4, 2015, and May 21, 2015 petitions. The district court also rendered Reasons for Judgment.

Thereafter, Ms. England filed a petition to annul the July 13, 2015 judgment, to which Mr. England filed an exception of no cause of action. The district court granted the exception and dismissed the petition to annul on August 17, 2016. [/The instant timely appeals followed, which were consolidated by this Court on May 1, 2017. Ms. England raises four assignments of error:

1. the district court clearly erred as a matter of law and manifestly abused its discretion in denying the motion to re-cuse Judge Ervin-Knott;
2. the district court manifestly abused its discretion in designating Mr. England as the domiciliary parent;
3. the district court clearly erred as a matter of law and manifestly abused its discretion in sanctioning Ms. England in the amount of $95,450.19 for filing the March 4, 2015, and May 21, 2015, petitions for protection from abuse; and
4.the district court erred by maintaining Mr. England’s Exception of No Cause of Action and dismissing with prejudice Ms. England’s petition to annul judgment in clear violation of Louisiana law.

Motion for Recusal

Ms. England avers that Judge Er-vin-Knott violated Judicial Canon 3(6) and had ex parte communications with witnesses and other professionals relating to the case and allowed these communications to create an unfair bias against Ms. England. She alleges that Judge Ervin-Knott engaged in improper ex parte communications with various individuals: a St. Tammany Parish detective investigating child abuse allegations; a parenting coordinator; the custody evaluator, Dr. Seth Kunen; social workers, and a physician at Children’s Hospital.

She further avers that Judge Ervin-Knott admitted, in her order directing the motion for recusal for reassignment to another judge for hearing, that she did have ex parte communications with certain individuals “in order to ascertain the truth and most importantly, with the best interest of the children in mind.” The district 15court further explained that the communications were not made to give a procedural or tactical advantage to Mr. England. Ms. England contends that her recusal motion should have been granted because the substantive ex parte communications per se led the court to be biased on crucial factual issues. Lastly, she argues that her state and federal due process rights to a fair hearing before an impartial judge were deprived under the circumstances; thus, she argues that recusal is the proper remedy.

The Louisiana Code of Civil Procedure sets forth the conditions that must be met for recusal. La. Code Civ. Proc. art. 151, provides in pertinent part:

A. A judge of any court, trial or appellate, shall be recused when he:
(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

“A trial judge is presumed to be impartial.” Slaughter v. Board of Sup’rs of Southern University and Agr. and Mechanical College, 10-1114, p. 8 (La.App. 1 Cir. 8/2/11), 76 So.3d 465, 471, writ denied, 11-2112 (La. 1/13/12), 77 So.3d 970. We have previously explained what a mover must establish to prove that recusal is justified:

In order to justify recusal of a judge, bias, prejudice, or personal interest on the part of the judge must be of a substantial nature and be based on more than eonclusory allegations. Tamporello v. State Farm Mutual Automobile Ins. Co., 95-458 (La.App. 5 Cir. 11/15/95), 665 So.2d 503. A judge can only be removed upon a finding of actual bias or prejudice; a substantial appearance of impropriety or even a mere appearance of impropriety are not causes for removing a judge. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930, 2000-1931 (La.App. 1 Cir. 9/28/2001), 809 So.2d 1040.

In re Succession of Manheim, 03-0282, 03-0283, p. 8 (La.App. 4 Cir. 10/15/03), 859 So.2d 836, 840, writ denied, 03-3091 (La. 12/19/03), 861 So.2d 576.

In the instant matter, Judge Griffin denied the motion for recusal reasoning that even if the ex parte communications alleged had occurred, Ms. England did not present any facts showing that Judge Er-vin-Knott was prejudiced or interested in the case to such an extent that she would be unable to conduct fair and impartial proceedings. Judge Griffin explained that she did not deem the ex parte communications that transpired to be dispositive of whether Judge Ervin-Knott should be re-cused:

... exparte’ [sic] communication in and of itself is not the litmus test. That’s why I keep coming back to it. Even if I assume that everything you say is correct, the issue become [sic] whether or not the judge is bias [sic], prejudice [sic] or interested in the cause or outcome or bias [sic] against a party to such an extent, and I don’t find it in connection with this case, even assuming everything you said, which they have countered in their opposition, they have put forth evidence confirming, number one, that some this stuff has happened months ago but there was no outcry. That some of this stuff that your client has in fact been ruled in favor of [sic] post some of the alleged actions that you think are problematic, and that being the case I don’t find evidence of bias, prejudice or interest in the cause or outcome of bias against the party. The motion to recuse is denied.

We do not find that Ms. England rebutted the presumption that Judge Ervin-Knott was impartial; furthermore, she submitted no evidence to support her claims of partiality. Her allegations against Judge Ervin-Knott are of a condusory nature and there is no.evidence that any of the alleged ex parte communications reflect that Judge Ervin-Knott was actually biased or prejudiced against her. Additionally, 17as Mr. England contends, the record reflects that some of the communications at issue were either requested and/or approved by Ms. England’s attorney at the time.

Mr. England presented two e-mails that were admitted by the district court that contradicted Ms. England’s assertions. One e-mail dated July 20,2015, was sent to Judge Ervin-Knott’s law clerk from Ms. England’s attorney at the time, Jeffrey M. Hoffman, giving the law clerk the name and contact information of a physician at Children’s Hospital, for the purpose of having the judge contact the physician. The second e-mail, dated January 25, 2016, was sent from Judge Ervin-Knott’s law clerk to Dr. Kunen, with counsel for both parties carbon copied, requesting an updated evaluation prior to the custody trial and advising him that Marc Winsberg, counsel for Mr. England, would be calling him with regard to this request.

At most, the disputed communications may have given the appearance of impropriety, but, as previously mentioned, this is insufficient to mandate recusal under La. Code Civ. Proc. art. 151. This assignment of error is without merit. There has not been a showing made that the district court’s ruling is manifestly erroneous.

Designation of Mr. England as the Domiciliary Parent

Ms. England argues that the district .court erred in designating Mr. England as the domiciliary parent because the district court erroneously determined that Ms. England alienated the children from Mr. England, thereby allegedly applying the Parental Alienation Syndrome theory (PAS). The PAS theory purports that children reporting fear of- their abusive fathers are actually influenced- by their vindictive mothers to hate the father and thereby fabricate allegations of abuse. IsWe find, however, that there is no evidence of the district court basing its decision to appoint Mr. England as the domiciliary parent upon PAS.

Ms. England takes the untenable position that the district court’s description of her as engaging in alienating behavior is the equivalent of the district court applying the PAS theory in the instant matter. We do not.find that the district court’s description of Ms. England’s behavior, as also described by Dr. Kunen, equates to an application by the district court of the PAS. Use of the word “alienation” is not tantamount to the application of PAS, which the district court neither mentioned in its judgment nor its Reasons for Judgment. Our review of the record reveals that the district court described in its judgment that Ms. England had “engaged in behaviors to alienate the children from their father.” Furthermore, in its Reasons for Judgment, the district court quoted Dr. Kunen’s testimony that “ ‘Ms. England has engaged in a campaign’ to alienate the children from Mr. England.” These are the district court’s only references to alienation with regard to this issue. Appellate courts will not disturb a district court’s custody award absent a manifest abuse of discretion. Hanks v. Hanks, 13-1442, p. 8 (La.App. 4 Cir. 4/16/14), 140 So.3d 208, 214. We And that Ms. England’s argument is without merit and that there has been no showing that the district court manifestly abused its discretion in designating Mr. England as the domiciliary parent.

Sanctions Award

Ms. England’s next assignment of error is that the district court erred as a matter of law and manifestly abused its discretion in sanctioning Ms. England in the amount of $95,450.19 for filing the March 4, 2015, and May 21, 2015, petitions for protection from abuse. Ms. England avers that the trial court | improperly used post-trial events and circumstances, as well as irrelevant facts, upon which to base the sanctions. However, Ms. England failed to produce evidence that district court’s holding was erroneous and that sanctions were unwarranted.

A district court’s judgment regarding sanctions under La. .Code Civ. Proc. art. 863 is reviewed under the manifest error or dearly wrong standard:

“Article 863 is intended only for exceptional circumstances and' is not to be used 'simply’because parties disagree as to the correct resolution of a legal matter. Fairchild v. Fairchild, 580 So.2d 513, 517 (La.App. 4 Cir.1991). On appellate review, a trial court’s finding as'to a sanctionable violation of C.C.P. art. 863 may not be disturbed unless the record furnishes no evidence to support the finding, or the finding is clearly wrong. Id., Loyola v. A Touch of Class Transp. Service, Inc., 580 So.2d 506 (La.App. 4 Cir.1991). Green v. Wal-Mart Store No. 1163, 96-1124, (La.App. 4 Cir. 10/17/96), 684 So.2d 966, 969.”

Mathis v. Mathis, 06-1589, p. 3 (La.App. 4 Cir. 7/25/07), 964 So.2d 426, 428 (quoting Green v. Wal-Mart Store No. 1163, 96-1124, pp. 4-5 (La.App. 4 Cir. 10/17/96), 684 So.2d 966, 969).

During the course of the trial on the petitions for abuse, the district court observed all of the witnesses and determined that some of them, primarily Ms. England, were not credible. The district court determined that Ms. England was consistently found to lack credibility, purposely tried to delay proceedings, alleged false abuse allegations and drove-up Mr. England’s legal costs. Ms. England, the court further observed, declined to contact any of the visitation supervisors to determine the veracity of the allegations she raised prior to .filing her petitions.

We find that Ms. England has failed to produce evidence that the district .court erroneously concluded that she misused the legal system, or that the sanctions were warranted. The trial judge presided over this matter practically from its inception and had the opportunity to observe the parties and witnesses as they testified at trial and other hearings. “Great deference is given to the findings of the trier of fact‘for they are in a better position to judge the credibility of the witnesses.’” Delta Staff Leasing, LLC v. S. Coast Solar, LLC, 15-1273, pp. 3-4 (La. App. 4 Cir. 5/11/16), 194 So.3d 745, 748 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

The trial court further relied on the testimony of numerous witnesses, including Dr. Kunen, as well as the lack of corroborating evidence supporting Ms. England’s allegations, to conclude that Ms. England had an agenda in filing the petitions alleging abuse, and detailed the reasons and evidence supporting this determination. For instance, the district court, both in the July 13, 2015 In,judgment— dismissing the March 4, 2015 petition for protection from abuse, and the May 21, 2015 addendum to the petition for protection from abuse—and in the June 10, 2016 judgment, reasoned that Ms. England failed to produce evidence supporting her allegations that Mr. England abused the children. Furthermore, the district court detailed its observations that the children’s accounts of the alleged abuse differed from one another, as well as from the version of Ms. England.

Additionally, the district court explained that it believed Ms. England’s lack of veracity traversed all of the custody proceedings. In its Reasons for Judgment, the district court described how Ms. England lied under oath at the August 2016 hearing regarding her communications with Mr. England’s ex-girlfriend, a Ms. Mancuso, from whom Ms. England tried to obtain information adverse to Mr. England. Thus, the district court had reasonable grounds to determine that Ms. England lacked credibility, and that she was motivated to keep the children separated from their father, embarrass him, and drive-up his legal fees.

Moreover, the district court determined that the other witnesses, who served as visitation supervisors, were credible. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844. The district court noted that nine investigations were conducted by independent agencies and that not one investigation found any evidence to corroborate the allegations of abuse. Even if we were to reach a differing conclusion, based upon the record, we cannot say that 112the district court’s determination was manifestly erroneous. This assignment of error is without merit.

Exception of No Cause of Action and Petition to Annul

In her final assignment of error, Ms. England avers that the district court violated Louisiana law in granting Mr. England’s exception of no cause of action and dismissing her petition to annul the July 13, 2015 judgment, and awarding Mr. England $1,592 in attorneys’ fees and court costs, on August 17, 2016. She asserts that nullification is proper because her petition to annul on its face states a cause of action for nullity based on fraud. The district court, she argues, erroneously relied upon the testimony of Dr. Kunen in rendering its July 13, 2015 judgment dismissing her petitions for protection from abuse; however, she maintains that Dr. Kunen had fraudulently represented himself as a family violence expert.

Ms. England’s second argument in support of her petition is that on its face, her petition to annul also states a cause of action for- nullity based upon the trial court’s erroneous exclusion of crucial domestic violence evidence at the hearing on her petitions from abuse. On March 30, 2015, the district court granted Mr. England’s exception of res judicata and his motion in limine, thereby excluding any evidence or testimony concerning the facts and circumstances of alleged abuse contained in Ms. England’s July 28, 2014 petition for protection from abuse. However, in writ application number 2015-C-0363, this Court reversed the district court’s judgment reasoning that the district court’s grant of Mr. England’s exception of res judicata was erroneous because evidence and testimony concerning the facts and circumstances of his alleged abuse contained in Ms. England’s July 28, 2014 Petition for Protection from Abuse were not barred by |1S principles of res judica-ta., England v. England, 15-0363, unpub. (La.App. 4 Cir. 10/26/15).

In his exception of no cause of action, Mr. England argued that Ms. England’s petition failed to state a cause of action sufficient to annul the judgment on the basis of fraud and ill practices. He averred that her allegation that Dr. Kunen fraudulently held himself out as an expert in family violence is a conclusion of fact that should not be considered in determining whether the petition states a cause of action. He further contends that Ms. England did not identify any specific actions of Dr. Kunen that could be construed as holding himself out as á family violence expert. Dr. Kunen, he maintains, was not offered or admitted as an expert 114in family violence at the hearing at issue. Furthermore, he points out that Dr. Kunen was Ms. England’s choice to be appointed the custody evaluator, and that she had the opportunity to interview him and review his curriculum vitae before suggesting him. He further maintains that Dr. Kunen submitted his report approximately a month prior to testifying, which gave Ms. England another opportunity to depose him on his report and qualifications, which she did not challenge on cross-examination when Dr. Kunen testified.'

Moreover, he maintains that even if Dr. Kunen had fraudulently held himself out as an expert in domestic violence and the district court had- primarily relied on his testimony, the petition still fails to state a cause of action under La. Code Civ. Proc, art. 2004 because Ms. England was not deprived of any legal rights by Dr. Ku-nen’s alleged misrepresentation. Gladstone v. Am. Auto. Ass’n, Inc., 419 So.2d 1219, 1223 (La. 1982).

“The exception of no cause of action ‘tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy.’” Koch v. Covenant House New Orleans, 12-0965, p. 3 (La.App. 4 Cir. 2/6/13), 109 So.3d 971, 972 (quoting Meckstroth v. Louisiana Dept. of Transp. & Dev., 07-0236, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 490, 492). “A peremptory exception of no cause of action is a question of law that requires the appellate court to conduct a de novo review.” Id. [citations omitted].

Pursuant to La. Code Civ. Proc. art. 931, no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. “The court reviews the petition and accepts all well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is entitled to the relief sought.” Meckstroth, 07-0326 at p. 2, 962 So.2d at 492 (citing Everything on’Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235-36 (La. 1993) (citation omitted)). “Louisiana utilizes fact pleading, meaning that the ‘mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.’ ” O’Dwyer v. Edwards, 08-1492, p. 4 (La.App. 4 Cir. 6/10/09), 15 So.3d 308, 310 (quoting Montalvo v. Sondes, 93-2813, p. 6 (La. 5/23/94), 637 So.2d 127, 131). The well-pleaded factual allegations must be accepted as true. City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 93-0690, p. 2 (La. 7/5/94), 640 So.2d 237, 241. The burden remains with the mover. Id., 93-0690, p. 28, 640 So.2d at 253. “The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.” Ramey v. DeCaire, 03-1299, p. 8 (La. 3/19/04), 869 So.2d 114, 119 (citing City of New Orleans, 93-0690, p. 29, 640 So.2d at 253).

Furthermore, a final judgment obtained by fraud or ill practices may be annulled. La. Code Civ. Proc. art. 2004 (A). “Under this article, the party seeking annulment must show both that the challenged judgment resulted from a deprivation of a legal right and that its ‘enforcement would be ‘unconscionable and inequitablé.’ ” Guidry v. First Nat. Bank of Commerce, 98-2383, p. 3 (La.App. 4 Cir. 3/1/00), 755 So.2d 1033, 1036, writ denied, 00-0920 (La. 5/26/00), 762 So.2d 1106 (quoting Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)). “Conduct which prevents an opposing pai-ty from having an opportunity to appear or to assert a defense constitutes a deprivation- of his legal rights.” Kem Search, Inc., 434 So.2d at 1070.

Nevertheless, an action for nullity is neither a substitute for an appeal, nor is it a “second chance to prove a claim that was previously denied for failure of |, (¡proof; it is imperative that courts review a petition for nullity closely.” Alexander v. La. State Bd. of Private Investigator Examiners, 15-0537, 15-0708 (La.App. 4 Cir. 2/17/17), 211 So.3d 544, 572, reh’g denied (Mar. 10, 2017) [citations omitted]. “The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals.” Id., 15-0537, 15-0708, pp. 46-47, 211 So.3d at 572-73 [citations, omitted].

Pursuant to our de novo review, we find that the district court did not err in granting Mr. England’s exception of no cause .of action. First, we find that Ms. England’s allegations regarding Dr. Kunen to be eon-clusory and not based on well-pleaded facts. Ms. England failed to plead facts evidencing that the district court substantially relied upon Dr. Kunen’s testimony as a “family violence expert” to the extent that his findings were the linchpin of its judgment dismissing her petitions for protection.

We note that Dr. Kunen was one of seven persons who testified during a three-day trial and he was not accepted as a family violence expert at the hearing. The district court noted that only the children, whose accounts varied from each other, and- Ms. England, who was not present when the alleged incidents occurred, testified to the abuse. The children’s psychiatrist, Dr. Daphne Glindmeyer, testified that the children were afraid of their father, but admitted that her findings were based upon the accounts of Ms. England and the children. She further testified that she had never evaluated the children in the presence of their father. Excluding Mr. England, the remaining witnesses, Mr. England’s mother, Mrs. Mary Lou England, 117and visitation supervisors, Ms. Sherri Carmouche and Dr. Leslie England, were consistent in their testimony that they had not observed any abuse by Mr. England.

Lastly, we find that Ms. England’s petition fails to state a cause of action based upon our reversal of the district court’s March 30, 2015 judgment prior to the rendition of the August 2016 judgment. Albeit that the district court committed a legal error, this does not change the fact that Ms. England missed her opportunity to proffer the disputed evidence at the hearings on her petitions for abuse and appeal the district court’s July 13, 2015 judgment. “[T]he mere fact that a judgment may be contrary to the law does not render it a nullity or subject it to a claim for nullity,” In re J.E.T., 16-0384, p. 14 (La.App. 1 Cir. 10/31/16), 211 So.3d 575, 585; see also Hall v. Hall, 611 So.2d 173, 174 (La.App. 5 Cir. 1992).

Ms. England did not demonstrate that the challenged judgment resulted from a deprivation of a legal right and that its enforcement would be “unconscionable and inequitable” in the matter sub judice, This assignment of error is without merit. ■ ■

DECREE

For the foregoing reasons, we affirm the March 9, 2016, March 31, 2016, June 10, 2016, and August 17, 2016 judgments of the district court.

AFFIRMED

BELSOME, J., CONCURS IN THE' RESULT

      . Ms. England filed an emergency writ application seeking review of the denial of the motion for recusal, which was denied. England v. England, 16-0252, unpub. (La.App. 4 Cir. 3/16/16). The Louisiana Supreme Court also denied her application for remedial/supervisory writs. England v. England, 16-0645, unpub. (La. 4/22/16).

      . The district court rendered two judgments following the custody trial: a March 30, 2016 judgment with reasons incorporated therein; and a second judgment dated March 31, 2016, with separate Reasons for Judgment.

      . Ms. England filed an application for supervisory writs in this court seeking review of the district court's denial of her motion to stay the sanctions, which was denied. England v. England, 16-0837, unpub. (La.App. 4 Cir. 9/02/16).

      . It appears that Ms. England waited until March 2016 to move for recusal when she knew of some of the alleged ex parte communications since August 2015.

      . La.. Code Civ. Proc. art. 863 states in pertinent part:
      B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
      (1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
      (2) Each claim, defense, or other legal assertion in the pleading is wárranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
      (3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a .reasonable opportunity for further investigation or discovery.
      (4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

      . During a contempt hearing, Ms. England testified that she did not have a conversation with Ms. Mancuso about Mr. England allegedly taking a picture of the buttocks of one of the minor children. However, at a later hearing, the district court recounted, counsel for Mr. England introduced a Facebook message between Ms. England and Ms. Mancuso evidencing that the conversation had taken place, and that "Ms. England lied on the witness stand.”

      . We explained in the writ disposition that:
      [b]ecause the second Petition [of Abuse filed on March 4, 2015] states a new cause of action that did not exist when the first Petition was dismissed [by consent of the parties and later memorialized in a January 26, 2015 judgment], we find that the trial court abused her discretion by incorrectly applying the principles of res judicata to exclude evidence and testimony concerning the facts and circumstances alleged in the first Petition for Protection from Abuse from hearings on the second Petition for Protection from Abus.e and Motion to Determine a History of Perpetrating Family Violence.
      We further reasoned that in consideration of the Louisiana Post-Separation Family Violence Relief Act, specifically La. Rev. Stat. 9:364:
      [e]vidence of Mr. England's prior acts of abuse alleged in the first Petition for Protection from Abuse may be admissible to corroborate evidence of the more recent act of abuse in both in a hearing to determine whether Ms. England is entitled to a protective order pursuant to her second request for such an order and in a hearing to determine whether Mr. England has a history of perpetrating family violence.
      At the trial of Mrs. England’s petition, the trial court can contemporaneously assess the relevance of the evidence offered (as defined in Louisiana Code of Evidence Article 401) and make admissibility determinations after balancing the prejudicial effect of such evidence with its probative value in accordance with Louisiana Code of Evidence Article 403. But we find that the trial court erred in granting the exception of res judicata and finding evidence of prior abuse inadmissible under principles of res judica-ta.

      . Dr. England is Mr. England’s father.


author: MOORE, J.

text:
    Billy HAWKINS, Plaintiff-Appellant v. SPAN SYSTEMS, INC./DFW INTERNATIONAL AIRPORT OCIP and Liberty Mutual Fire Insurance Company, Defendant-Appellees
    No. 51,378-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017

      THE LAW OFFICES OF ALEX S. LYONS, By: Alex S. Lyons, Counsel for Appellant
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP, By: J. Chris Jackson, Patrick F. Cole, Haley G. Bayn-ham, Counsel for Appellees
    Before MOORE, PITMAN, and GARRETT, JJ.
   MOORE, J.

11 Billy Hawkins appeals a judgment that sustained his employer’s exception of res judicata and dismissed his workers’ compensation claim. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Hawkins, who lives in Minden, Louisiana, was employed by Span Systems Inc., a contractor at DFW International Airport, in Dallas. On September 16, 2013, a coworker “ran into” the lift in which Hawkins was working. At some point, Hawkins filed a claim against Span’s insurer, Liberty Mutual, in the Texas Department of Insurance, Division of Workers’ Compensation (“DWC”).

Hawkins then filed the instant disputed claim in the Louisiana Office of Workers’ Compensation (“OWC”) on August 4, 2014, against Span and Liberty Mutual (collectively, “Span”). Alleging injuries to his neck and back, he demanded wage benefits, medical treatment, penalties and at: torney fees.

Span admitted that Hawkins sustained a work-related injury but argued that he was receiving wages in lieu of benefits and compensation benefits under Texas law, resulting in statutory credit that would offset any Louisiana benefits.

Meanwhile, the parties proceeded to a hearing in the DWC. On March 26, 2015, the hearing officer rendered a 5 ½-page Decision and Order (“the DWC ruling”) finding that the work-related injury did not extend to and include a disc protrusion at C5-6, cervical radiculitis, lumbar sprain/ strain, and multiple disc bulges (Ll-2, L3-4, L5-S1); that Hawkins reached maximum medical improvement on February 24, 2014; and that his 1 gimpairment raising was 5%. The hearing officer ordered Liberty Mutual to pay medical costs and any accrued wage benefits in accord with Texas law, but did not address any complaint of cervical sprain/strain.

Back in the OWC, Span filed the instant exception of res judicata on May 15, 2015. Citing the DWC ruling, it argued that the matter had been fully adjudicated with a finding that most of Hawkins’s symptoms were not the result of the accident. In support, it cited Early v. R & J Technical Servs., 2012-686 (La.App. 3 Cir. 2/13/13), 129 So.3d 46, for the principle that an out-of-state workers’ compensation ruling was entitled to full faith and credit in the OWC. It conceded that Hawkins’s claim for cervical sprain/strain was unresolved and could proceed.

Hawkins opposed the exception, arguing that his hearing in the DWC did not meet due process standards, and that res judica-ta does not apply until the plaintiff has an “adequate opportunity to litigate,” Turner v. Maryland Cas. Co., 518 So.2d 1011 (La. 1988). He conceded that Early was superficially on point, but argued that the OWC has continuing jurisdiction over all claims, La. R.S. 23:1310.8, and that the compensation law should be liberally construed to promote recovery. Mostly, he cited the formulation that res judicata requires an examination of “the entire record in the first suit,” Brielle’s Florist & Gifts Inc. v. Trans Tech Inc., 2011-260 (La.App. 3 Cir. 10/5/11), 74 So.3d 833; Pickett v. J.B. Tuck Land Clearing, 2012-1409 (La.App. 3 Cir. 5/1/13), 157 So.3d 34. He argued that Span must introduce the entire record of the DWC case, not just the DWC ruling.

At a hearing in February 2016, Span offered the DWC ruling, not the entire record. After argument, WCJ Patrick Robinson sustained the exception with respect to all claims except cervical sprain/strain,

LHawkins took a writ, which this court denied on the showing made, on March 31, 2016.

In August 2016, Span’s counsel advised the OWC that the parties had reached stipulations that with the ruling on res judicata, Hawkins would not be able to prove his cause of action. After a hearing on August 16, WCJ Linda Smith rendered judgment denying and dismissing all of Hawkins’s claims. Hawkins has taken this appeal.

DISCUSSION

The Parties’ Positions

Hawkins designates one assignment of error: the WCJ erred in granting Span’s exception of res judicata, thus limiting the plaintiff to proving disability arising out of a cervical sprain/strain. He first contends that res judicata should never be applied without evidence that the plaintiff had an “adequate opportunity to litigate,” Turner v. Maryland Cas. Co., supra. Specifically, the trial court should examine “not only the pleadings, but also the entire record in the first suit to determine whether the second suit is, in fact, barred by res judicata.” Brielle’s Florist & Gifts v. Trans Tech, supra; Pickett v. J.B. Tuck Land Clearing, supra; Lee v. Twin Bros. Marine Corp., 2003-2034 (La.App. 1 Cir. 9/17/04), 897 So.2d 35. The only evidence before the OWC was the DWC ruling, and thus the court could not determine what particular issues were actually decided under Texas law.

hSecond, he shows that a prior judgment does not bar another action by the plaintiff when “exceptional circumstances justify relief from the res judicata effect of the judgment,” La, R.S. 13:4232 A(l). The courts have declined to apply res judicata when “the judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme,” Terrebonne Fuel & Lube Inc. v. Placid Refining Co., 95-0654 (La. 1/16/96), 666 So.2d 624; City of Bastrop v. Harris, 50,727 (La. App. 2 Cir. 6/22/16), 198 So.3d 163. Hawkins contends that the Texas compensation system is “grossly unfair to injured workers.” Specifically, his hearing was a phone conference in which he was represented not by a lawyer but by a nonlawyer ombudsman provided by the system, a situation he views as inherently unfair; and the DWC hearing officer gave no weight to a letter from Hawkins’s chiropractor seeking to establish causation, resulting in a ruling valid under Texas law but, he contends, contrary to Louisiana’s presumption of causation, Peveto v. WHC Contractors, 630 So.2d 689 (La. 1994). He concludes that strong public policy reasons 'militate in favor of letting him, a Louisiana resident, litigate his claim in Louisiana.

Span responds that res judicata properly applied because the DWC riding was a judgment in favor of the defendant “with respect to any issue actually litigated and determined if its determination was essential to that judgment,” La. R.S. 13:4231 (3). Further, Early v. R & J Technical Servs., supra, applied full faith and credit to another state’s finding that the claimant did not sustain a work-related injury, and is virtually identical to this case. The DWC ruling shows, in fact, an “extensive” consideration of all claims and evidence, with “no indicia of unreliability or unreasonableness”; thus, it was competent to support res judicata. Further, Hawkins’s lead authority, Brielle’s Florist, supra, actually states that failure to introduce the entire record into evidence “can prohibit” the application of res judicata, not -that the whole record is uniformly required. Finally, the overriding public policy issue is to bar the relitigation of matters already decided; to allow Hawkins to proceed would defeat that policy.

Analysis

The applicable law is essentially as- quoted by the parties. Res judicata precludes the relitigation of all causes of action arising out of the same transaction and occurrence that-were the subject matter of a prior litigation between the same parties. Oliver v. Orleans Parish Sch. Bd., 2014-0329 (La. 10/31/14), 156 So.3d 596, 165 Lab.Cas. P 61537, 314 Ed. Law Rep. 1161 (2014). A valid and final judgment is conclusive between the same parties “with respect to any issue actually litigated and determined if its determination was essential to that judgment.” La. R.S. 13:4231(3). The purpose of res judicata is judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. Oliver v. Orleans Parish Sch. Bd., supra. A judgment denying workers’ compensation benefits is res judi-cata after the claimant has exhausted his right of appeal. La. R.S. 23:1310.8 E. The fact that only Liberty Mutual was a defendant in the DWC, but its insured, Span, is also a defendant in the instant matter, is immaterial; for purposes of res [¿judicata, the insurer and the insured share the same qualities and identity. Aisola v. Louisiana Citizens Prop. Ins. Corp., 2014-1708 (La. 10/14/15), 180 So.3d 266; Insurance Co. of N. Amer. v. Louisiana Power & Light, 2008-1315 (La. App. 5 Cir. 3/4/09), 10 So.3d 264.

The issue is whether Span ■ satisfied its burden of proving that res judicata applied. The burden of proof is on the pleader to establish the essential facts to sustain the plea of res judicata. Borja v. FARA, 2016-0055 (La. 10/19/16), 218 So.3d 1, fn. 3, 2016 WL 6123579. The burden of proof is a preponderance of the evidence. Eddens v. Exceptional Client Care LLC, 48,747 (La.App. 2 Cir. 2/26/14), 135 So.3d 784; Fogleman v. Meaux Surface Prot. Inc., 2010-1210 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, writ denied, 2011-0712 (La. 5/27/11), 63 So.3d 995. One court has specifically rejected the argument that “the entire record of the underlying proceeding” must be introduced for the court to consider res judicata properly. Pierrotti v. Johnson, 2011-1317 (La.App. 1 Cir. 3/19/12), 91 So.3d 1056. Whether the party alleging res judicata has met the burden of proof depends, obviously, on the nature of the evidence.

For this reason, we reject Hawkins’s contention that the “entire record” is categorically required for the mover to prove entitlement to res judicata. Notably, in Brielle’s Florist, supra, the defense of res judicata was based on a compromise that was never signed yet resulted in a judgment “in strict conformity to the terms of the settlement agreement.” In Pickett v. J.B. Tuck Land Clearing, supra, the defense of res judicata was based on a motion to enforce settlement and a minute entry stating that the “initial agreed upon settlement is hereby enforced”; the court specifically noted that the minute entry “does not expound upon the issues considered in that |7settlement.” In Lee v. Twin Bros. Marine, supra, the defense of res judicata was based on an OWC judgment that rejected a claim for temporary, total disability benefits but was silent as to a knee replacement; the court found this would not preclude a later claim for the knee replacement. The running theme in these cases is that the evidence offered did not support the plea of res judicata, and that the “entire record” would have clarified the issue, showing whether the particular claim had indeed been litigated.

By contrast, in the instant case Span introduced the DWC ruling. This is no barebones judgment or minute entry dismissing a claim in conformity with an undisclosed settlement, or for no reason at all. In the DWC ruling, the hearing officer clearly stated that the disputed issues were whether the work-related accident extended to and included a disc protrusion at C5-6, cervical radiculitis, lumbar sprain/ strain, and multiple lumbar disc bulges at Ll-2, L3-4 and L5-S1. She listed the witnesses testifying and the exhibits introduced, and discussed the letter from Hawkins’s treating chiropractor, Dr. Hicken; a report from another chiropractor (the “treating doctor designee”), Dr. Pearson; and a report from a court-appointed designated doctor, Dr. Courtney, who examined Hawkins for maximum medical improvement and impairment rating. The hearing officer found that the cervical injuries were degenerative and predated the accident, that complaints of lumbar injury were “absent” only a few days after the accident, and that Dr. Hicken’s theory of causation was “not persuasive.” On this basis, the hearing officer found that the claimed injuries did not result from the work-related accident. This comprehensive review of the issues, evidence and analysis was more than sufficient to support the WCJ’s 1 ¡¡finding that the claimed injuries were fully litigated in the DWC and subject to res judicata.

The evidence introduced here was similar to what this court found sufficient to support res judicata in Eddens v. Exceptional Client Care, supra, and to what the Third Circuit found sufficient to reverse a judgment that had denied the exception of res judicata in Fogleman v. Meaux Surface Prot., supra. The WCJ committed no legal or manifest error in sustaining the instant exception. Hawkins’s first argument lacks merit.

By his second argument, Hawkins urges that because of exceptional circumstances, he is entitled to relief from the harsh effect of res judicata. La. R.S. 18:4232 A(l). Certain facts—he did not attend his DWC hearing in person, he was represented not by a lawyer but by an ombudsman, and the hearing officer did not apply Louisiana’s presumption of causation—made the prior proceeding, in his view, inconsistent with fairness and equity. More generally, he contends the Texas workers’ compensation system is inherently biased against claimants and should not preclude subsequent claims in the worker’s home state.

This court has recently recognized that both Texas and Louisiana have strong policies of protecting employees through workers’ compensation laws. Jackson v. Royal T Energy LLC, 50,645 (La.App. 2 Cir. 6/22/16), 197 So.3d 706, writ denied, 2016-1383 (La. 11/7/16), 209 So.3d 99. In addition, this court has utilized a DWC judgment as the basis for res judicata in the OWC. Eddens v. Exceptional Client Care, supra. Relief from res judicata is available only in “truly exceptional cases,” such as “complex procedural situations in which litigants are deprived of the opportunity to present their claims due to unanticipated quirks in the system,” to factual | situations that could not be anticipated by the parties, or to decisions that are totally beyond the control of the parties. Oleszkowicz v. Exxon Mobil Corp., 2014-0256 (La. 12/9/14), 156 So.3d 645, quoting Kevin Assocs. LLC v. Crawford, 2004-2227 (La. App. 1 Cir. 11/4/05), 917 So.2d 544, writ denied, 2006-0220 (La. 5/5/06), 927 So.2d 311. The facts cited by Hawkins do not reach the level of “truly exceptional,” and in no way prevented him from presenting the same claims he is now raising in the OWC. On this record, no special relief from res judicata is warranted. This argument lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the claimant, Billy Hawkins, in accordance with La. C. C. P. art. 5186.

AFFIRMED.

      . As a preliminary matter, he urges that documents attached to memoranda do not constitute evidence, Denoux v. Vessel Mgmt. Servs. Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84. He concedes that Span attached a copy of the DWC ruling to its exception of res judicata and offered a copy of it at the hearing, but still urges that it was not properly before the WCJ, The record shows that at the hearing on the exception, Span offered a copy of the DWC ruling and that Hawkins's counsel stipulated that it had been rendered. It was properly before the OWC.

      . Terry Carter, "Insult to Injury: Texas Workers’ Comp System Denies, Delays Medical Help,” Oct. 2011, accessed:
      http://www.abaioumal.com/maga2ine/ . articIe/insult-to_iniury_texas_workers_ comp_system_denies_delays_medical_help/; Jay Root, "Hurting for Work: Behind the Texas Miracle, A Broken System for Broken Workers,” June 29, 2014, accessed: https:// apps.texastribune.org/hurting-for-work/.