author: FREDERICKS HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Julio A. OTERO.
    No. 08-KA-188.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for PlaintifflAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Judge.

|2On June 24, 2005, the State charged the defendant with armed robbery in violation of La. R.S. 14:64. After a verdict of guilty as charged, the trial judge sentenced the defendant to thirty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The trial judge also imposed an additional five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence pursuant to La. R.S. 14:64.3, which imposes an enhanced sentence when an armed robbery is committed with a dangerous weapon. This timely appeal follows. We affirm in part, vacate in part, and remand with orders.

The defendant was charged in connection with the robbery of the Omni Bank located at 5249 Veterans Memorial Boulevard in Metairie. Prior to trial the defendant filed a motion to suppress certain statements that he had made to the police. At the June 20, 2007 hearing on the motion, Sergeant John Carroll of the Jefferson Parish Police Department testified that he had participated in the investigation of the Omni Bank robbery. According to his testimony, Carroll first Lmet the defendant after the defendant was arrested in Orleans Parish on an unrelated weapons charge and transported to the D.E.A. office in Jefferson Parish. Sgt. Carroll spoke to the defendant after advising him of his Miranda rights. This initial statement was not recorded, and was interrupted when the parties were asked to leave the premises due to a building inspection taking place at that time. Sgt. Carroll testified that the defendant was thereafter moved back to Orleans Parish for booking on the weapons charge.

Carroll further testified that after interviewing the defendant, the investigators interviewed the defendant’s fiancé and two co-defendants, all of whom identified the defendant from photographs obtained from the bank’s surveillance cameras. Sgt. Carroll then transported the defendant from the Orleans Parish jail to the detective bureau in Jefferson Parish after the defendant agreed to give another statement since his previous statement had been interrupted and was incomplete. Detective David Mascaro testified that he and Sgt. Carroll transported the defendant pursuant to an arrest warrant the day after his previous statement had been interrupted. Prior to giving a statement, the defendant signed a second waiver of his Miranda rights. During the interview, the detectives showed the defendant photographs obtained from the bank’s surveillance cameras, and asked the defendant if he could identify the individual in the pictures. After several hours of questioning, the defendant confessed to robbing the Omni Bank.

The defendant’s motion to suppress was denied on June 20, 2007, and trial commenced on August 7, 2007. Three bank employees who were working on the day of the robbery testified at trial. Deirdre Bates, the assistant manager, recalled greeting the defendant as he entered the bank. She testified that he did not respond to her greeting, and that as she moved through the building, she realized that the defendant was following her. She observed the defendant lift his shirt and pull a Lgun out from the inside of his pants. He forced her to the floor, and ordered the remaining patrons and employees to the floor as well.

April York, a bank teller, testified that after the defendant displayed a gun, he jumped over the teller counter and forcibly pulled her out of the way. He then took money out of her teller drawer, jumped back over the counter, and fled the building through the front door.

Jane Ainsworth, the manager of the branch, testified that she was working in her office when the robbery occurred. She eventually realized what was happening when she heard the defendant screaming at a teller. She moved towards the floor and observed the defendant jump over the counter and exit the bank. After the robbery was over, Ainsworth locked the door, called the police, and began filling out theft forms in accordance with Omni procedure.

The defendant called no witnesses, nor did he testify on his own behalf.

FIRST ASSIGNMENT OF ERROR

On appeal, the defendant assigns three errors. In his first assignment, the defendant argues that the trial court erred in denying the motion to suppress the identifications and statements, as they were the “fruits of an illegal arrest.” Specifically, the defendant claims that he was arrested without probable cause in Orleans Parish, and that any statement given thereafter was therefore illegal and inadmissible at trial.

Statements made by a defendant during an allegedly illegal detention are inadmissible if they are the product of illegal detention and not the result of an independent act of free will. State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179. The defendant has the burden of proving “the ground of his motion, except that the State shall have the burden of proving the admissibility of a purported confession 15or statement by the defendant or of any evidence seized without a warrant.” La. C. Cr. P. art. 703(D). The defendant also bears the burden of asserting the basis for his motion to suppress in order to give the State adequate notice so that it may present evidence and address the issue. State v. Jackson, 04-1388 (La.App. 5th Cir.5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162. Evidence which is collected in violation of a defendant’s constitutional rights must be excluded at trial subject to several exceptions. See, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). A trial court’s decision to deny a motion to suppress is afforded great weight, and will not be disturbed unless the preponderance of the evidence clearly favors suppression. State v. Williams, 98-1006 (La.App. 5th Cir.3/30/99), 735 So.2d 62, wmit denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

There is no evidence in the record regarding the legality of the defendant’s initial arrest in Orleans Parish. Furthermore, there is no evidence in the trial record that the defendant gave any statement at the initial interview prior to being interrupted by the building inspection. The record does contain evidence that the defendant was first advised of his Miranda rights and that he voluntarily waived those rights prior to giving any statement to Sgt. Carroll in Jefferson Parish the day after the Orleans Parish arrest. There is also evidence that the defendant’s transport from Orleans Parish prison to Jefferson Parish was based on an arrest warrant, though there is conflicting testimony whether the defendant went willingly. As such, it is not possible to deduce whether the defendant’s Orleans Parish arrest was based on probable cause. Moreover, since the defendant was transported to Jefferson Parish pursuant to a valid arrest warrant, his argument that the Orleans arrest was illegal is moot.

| f,The defendant’s confession and identification of himself from the bank’s surveillance photos were admissible because they were given freely and voluntarily and not under duress or intimidation. Based on the record, we find that the trial court was correct in finding that the defendant’s statement was freely and voluntarily given while he was under custody. Accordingly, this assignment of error is without merit.

SECOND ASSIGNMENT OF ERROR

In his second assignment of error, the defendant argues that the trial court erred in failing to grant a motion for mistrial based on improper comments by the prosecutor during his closing argument. It is well established that closing arguments should be restricted to the evidence admitted or lack thereof, conclusions of fact that may be drawn therefrom, and to the law applicable to the case. State v. Vincent, 07-239 (La.App. 5th Cir.12/27/07), 978 So.2d 967, 975. The state’s rebuttal should be confined to answering the defendant’s argument, but prosecutors are generally allowed considerable latitude when making closing arguments, id. A conviction will not be reversed due to improper remarks during closing unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Id. at 976.

A trial court is authorized to correct prejudicial remarks by ordering a mistrial or admonishing the jury, at the defendant’s request. State v. Taylor, 07-93 (La.App. 5th Cir.11/27/07), 973 So.2d 83. However, “much credit should be accorded to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 200.

|7The following statement by the prosecutor is the subject of the defendant’s complaint:

And what about fingerprints? No, you didn’t hear anything about fingerprints. Fingerprints aren’t found that easily. We, granted, could put on a witness to testify about fingerprints, to explain how fingerprints can be located, aren’t always located [sic] any little smudge means that there’s no usable fingerprint. If fingerprints were found and weren’t the defendant’s, though the Defense doesn’t have any duty to call witnesses or experts, they could have done that, also. So, if there were fingerprints found that did not belong to the defendant, the Defense could have called a witness to show you that.

The defendant argues that the prosecutor’s comments regarding the defendant’s presumption of innocence and the necessity for him to prove his innocence essentially shifted the burden of proof to the defendant to prove his innocence. However, the defendant fails to acknowledge the context in which the prosecutor made this statement. The prosecutor was rebutting the defendant’s closing argument wherein defense counsel raised the issue of the lack of fingerprint evidence. Furthermore, the prosecutor acknowledged in his closing that the defendant was not obligated to call any witnesses. The trial court also instructed the jury regarding the State’s obligation to put on evidence to prove the defendant’s guilt. Based on the foregoing, we do not find that the prosecutor’s closing arguments rendered the trial fundamentally unfair so as to warrant a mistrial. Nonetheless, we find it appropriate to remind prosecutors that they would be well advised to tread lightly with respect to a defendant’s failure to call witnesses.

THIRD ASSIGNMENT OF ERROR

In his third assignment of error, defendant argues that his sentence pursuant to La. R.S. 14:64.3 was unconstitutional. He alleges that the trial court’s laimposition of the additional five-year sentence based on its finding that the defendant committed the charged armed robbery with a firearm violated his constitutional right to due process because it •was not determined by a jury. In addition, the defendant avers that La. R.S. 14:63.3 unconstitutionally subjected him to double jeopardy.

Armed robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64.

La.R.S. 14:64.3 provides:
When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Section shall be served consecutively to the sentence imposed under the provision of La. R.S. 14:64.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court of the United States addressed a statute which authorized a judge to increase a defendant’s maximum prison sentence if the defendant acted with a purpose to intimidate based on the victim’s race. The Court held that such a statute would be violative of a defendant’s due process rights, “as any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. The Supreme Court later held that the “relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296, 303-304, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004).

| ciThis Court addressed a similar factual situation to the instant case in State v. Walker, 01-51 (La.App. 5 Cir. 5/30/01), 789 So.2d 86. In Walker, the defendants were charged by bill of information with two counts of armed robbery. Subsequently, the State filed written notice of its intention to apply La. R.S. 14:64.3. Id. at 88. At the conclusion of the trial, the jury returned a verdict of guilty as charged and the defendant was sentenced to two ten year prison terms at hard labor. Id. In conformity with La. R.S. 14:64.3, the court added an additional five years to the sentence and ordered that the additional five years be served consecutively. Id. at 87.

The Walker defendant argued that his sentence was unconstitutional based upon the Fifth Amendment and Apprendi. This Court disagreed, reasoning that:

the trial court’s imposition of two five-year sentences under LSA-R.S. 14:64.3, to run consecutively to defendant’s ten year armed robbery sentences, did not increase the penalty beyond the maximum term of ninety-nine years prescribed by the armed robbery statute. Therefore, under the holding in Appren-di, there was no due process violation in the trial court’s application of LSA-R.S. 14:64.3 to the instant case.

Id. at 91.

Here, the defendant received a thirty-five year sentence for armed robbery, and an additional sentence of five years for use a firearm in commission of the crime. The defendant is correct in his assertion that the judge only charged the jury as to the elements of an armed robbery, which included a finding that the defendant was armed with a dangerous weapon. The jury was not specifically charged with finding that the weapon involved in the crime was a firearm. However, the “relevant statutory maximum” for the purposes of Apprendi and Blakely in the instant case is ninety-nine years at hard labor, which is the maximum sentence that the defendant could have received without any additional findings. Because the additional sentence did not increase the penalty beyond the | inmaximum term of ninety-nine years, we agree with the reasoning of Walker and hold that there was no due process violation in the trial court’s application of La. R.S. 14:64.3.

The defendant also argues that his sentence under La. R.S. 14:64.3 constituted a double jeopardy violation. It is manifest that “[n]o person shall be subject for the same offense to be twice put in jeopardy of life and limb.” La. Const, art. I, § 15. However, double jeopardy principles are inapplicable to sentence enhancement proceedings. See, e.g., State v. Linkletter, 77-58596 (La.04/11/77), 345 So.2d 452, 460.

This Court has considered the issue of whether La. R.S. 14:64.3 violates double jeopardy on several occasions and has always answered the question in the negative. For example, in Walker, this Court reasoned that “La. R.S. 14:63.3 does not create a new crime, but simply enhances the penalties for violation of La. R.S. 14:64, the armed robbery statute, when the dangerous weapon used to commit the armed robbery is a firearm.” Walker, 789 So.2d at 92, (citing State v. Durant, 00-1246 (La.App. 5th Cir.12/27/00), 776 So.2d 1265, n. 1). We also noted that the “statute no more subjects defendant to double jeopardy than would the application of the Habitual Offender Law to enhance a defendant’s sentence.” Id.

There are no distinctions between the double jeopardy issue raised in Walker, and the case at bar. Accordingly, we find defendant’s allegation to be without merit.

ERROR PATENT REVIEW

The appellant failed to request an error patent review. Regardless, this Court routinely reviews the record for errors patent regardless of whether the defendant makes such a request. La. C. Cr. P. art. 920; State v. Oliveaux, 75-55321 (La.04/24/75), 312 So.2d 337; State v. Weiland, 89-584 (La.App. 5th Cir.01/17/90), |, ,556 So.2d 175. The trial court imposed the additional sentence in accordance with La. R.S. 14:64.3 to be served “at hard labor.” Our review of the case indicates that the defendant’s enhanced sentence pursuant to La.R.S. 14:64.3 at the time of the commission of this crime in 2005 did not include a provision that the sentence be served “at hard labor.” That was not included in the statute until the revision in 2006. Accordingly, we vacate this portion of the sentence and remand to the trial court for re-sentencing in accordance with the statute as it was written at the time of the commission of the crime. CONCLUSION

For the reasons set forth herein, we find that the motion to suppress was properly denied and that the prosecutor did not unfairly prejudice the jury during his closing argument. Further, the trial court’s addition of a five-year sentence pursuant to La. R.S. 14:64.3 did not violate the defendant’s due process rights nor did it constitute a double jeopardy violation. We vacate the defendant’s enhanced sentence pursuant to La. R.S. 14:64.3 and remand to the trial court for sentencing in accordance with the provisions of La. R.S. 14:64.3 as written at the time of the commission of the crime for which the defendant was found guilty.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH ORDERS.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dondi E. CHISM.
    No. 08-KA-474.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Andrea F. Long, Vincent Paciera, Jr., Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for PlaintiffiAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| .¿This is a criminal proceeding in which the defendant/appellant Dondi E. Chism appeals his armed robbery and first degree robbery convictions and sentences. He assigns as error the insufficiency of the evidence to convict him. For the following reasons, we affirm the convictions and sentences. Furthermore, error patent review shows that the commitment/minute entry should be corrected and we remand for correction.

Procedural History

The state filed a three-count Bill of Information charging Mr. Chism with two counts of armed robbery, in violation of La.R.S. 14:64 and one count of theft valued at over $500, in violation of La.R.S. 14:67. On December 10 and 11, 2007, a jury trial proceeded on Counts 1 and 2, the armed robberies. Count 1 charged the defendant with the armed robbery of Claudia Rodriguez allegedly occurring on |nApril 29, 2007. Count 2 charged him with the armed robbery of Alta Dickinson allegedly occurring on May 9, 2007. A twelve-person jury found the defendant guilty of the lesser offense of first degree robbery as to Count 1 (Claudia Rodriguez) and guilty as charged of armed robbery as to Count 2 (Alta Dickinson). The defendant filed a motion for a new trial, which was denied on February 27, 2008. Thereafter, the defendant pleaded guilty to drug offenses in district court proceeding numbers 06-6620 and 06-6355. Those proceedings are not the subject of this appeal. In exchange for the pleas, the state agreed, among other things, to dismiss the theft charge in the instant matter. That date, the state entered a nolle prosequi as to Count 8 — the theft charge.

After the defendant waived sentencing delays, the trial judge sentenced Mr. Chism to 20 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on Count 1 (first degree robbery of Claudia Rodriguez) and 40 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on Count 2 (armed robbery of Alta Dickinson). These sentences were ordered to run concurrently with each other and with the sentences in case numbers 06-6355 and 06-6620. The trial judge denied the defendant’s oral motion to reconsider the sentences in the present matter. The defendant filed a written motion to reconsider the sentence as excessive, which was also denied that day. In addition, he filed a motion for appeal that the trial judge granted that day.

Facts

In April and May, 2007 robberies occurred at two Jefferson Parish businesses within an eight-day period.

The first robbery occurred on April 29, 2007. Nicholas Martinez testified that he was working as a manager at Los Tres Amigos when it was robbed. The J^Mexican restaurant is located at 2201 La-palco Boulevard in Harvey. He was in the kitchen when a visibly shaken waiter entered the kitchen. Uncertain about what action he should take, Mr. Martinez walked to the front. He spotted a male with cash in his hands leaving the restaurant. The man had “a lot of ... ones and fives.” As manager he knew what kind of money he had in the register. But from his perspective, Mr. Martinez did not get a good view of the robber. Claudia Rodriguez was the cashier at the time. Ms. Rodriguez who was a friend of Mr. Martinez’s family, however, returned to Mexico after graduating from high school a few months before trial.

The second robbery occurred on May 9, 2007. Alta Dickinson testified that at approximately 4:05 p.m., she was working as a bartender at the Daiquiri Dock when she was robbed at gunpoint. Before the robbery, she went to the bathroom. A customer told her that in her absence a man had briefly entered the bar and looked around. When the customer told the individual that Ms. Dickinson was in the bathroom, the individual left the bar.

After she returned to the bar, Wayne R. Fussell, another customer, entered. Then the robber entered. After entering and ordering “the largest, strongest daiquiri,” the robber came behind the bar with a gun and kept threatening to kill her. She described the gun as “shiny silver.” She explained that the robber tried to get the cash in the video poker bank first, but it was locked and bolted down. The robber screamed at her and caused bottles to fall and break in his frustration when he could not open the box. Next, he demanded that she open the cash register. She complied, and the robber took cash with the exception of “ones” and change. Then he demanded that she unplug the register. She pleaded with him to take the money and leave. She believed that he was going to kill her.

| ñAfter the man left, the police arrived quickly after a customer alerted them. A few days later, Ms. Dickinson immediately identified the defendant as the robber in a photographic lineup.

She testified that there was a surveillance video at the time of the robbery that was turned over to the Sheriffs Office. She identified two photographs that depicted the incident. She described one photo as showing the robber pointing a gun at her while she opened the register. She described the second photo as showing the robber walking into the bar. The photos depicted the robber wearing a baseball cap.

Sergeant Dax Russo testified that he is the video analyst for the Jefferson Parish Sheriffs Office who participated in the investigation of the robbery at the Daiquiri Dock. Sergeant Russo “digitized” two V.H.S. videotapes from the business and prepared them for viewing. He also made the two still photographs that the prosecutor showed to Ms. Dickinson. Sergeant Russo identified the three-minute portion of the videotape, which the prosecutor played for the jury.

Mr. Fussell testified that he saw a man at the cash register holding what appeared to be a silver gun. The man pointed the gun at the register. He demanded that the register be opened. He said “I’ll kill you.” Mr. Fussell asked him not to kill the woman. He testified that he could not identify the robber because he was not paying attention to his face.

Robert Jackson testified that he was with the defendant near the Daiquiri Dock on the day of the robbery. He identified the defendant in court as someone he knew by the name of “Cadillac.” He knew the defendant for approximately one year. On May 9, 2007, he was driving a car in which the defendant was a | (¡passenger. He drove to a business within the proximity of the Daiquiri Dock. They had just obtained drugs and were going to get daiquiris. It was the defendant’s idea to go to the Daiquiri Dock.

Mr. Jackson did not know that a crime was going to be committed there. After the defendant left the Daiquiri Dock, the defendant jumped into the back seat and told Mr. Jackson to drive. The defendant did not have any daiquiris. The front seat of the vehicle was vacant. At some point while driving, Mr. Jackson spotted a chrome-plated pistol and money. He saw the money on the back seat of the car. When they arrived at them destination, they began counting the money. The defendant offered him money but he did not take any. Four hours later, Mr. Jackson told a friend — a federal bounty hunter— that he knew about the Daiquiri Dock incident. His friend contacted Sergeant John Carroll of the Sheriffs Office. Mr. Jackson gave the information to Sergeant Carroll. That same night, he was shown a photographic lineup in which he identified the defendant.

On the day after the Daiquiri Dock robbery, the defendant gave two statements to the police in which he admitted committing the robberies after waiving his Miranda constitutional rights.

The first nine-minute audiotaped statement that was introduced into evidence reveals that it was taken at 9:22 p.m. by Sergeant Larry Dyess. Lieutenant Bruce Harrison was also present.

The defendant was referred to an investigation of an incident occurring on May 9, 2007 concerning a bar room. The defendant stated that the bar room was a daiquiri house. He said that he was driven there by “Robert.” At the time, the defendant was wearing a red hat and brown shades. He stated that he walked into the business twice. When he first walked in, someone told him that the female ^employee was in the bathroom. The defendant left at that point. But, he entered a second time. He told the woman that he would like a large, strong daiquiri. When she began preparing the drink, the defendant pulled out a gray toy gun that looked like a .380 and told her to give him the box. He had been in the bar before that date and had observed the woman cash tickets from the poker machine by opening this gray box. The box was located behind the bar about two feet from the cash register. But, when he grabbed the box, it would not budge. He wanted money badly because he wanted drugs. He told the woman to open the box or he would shoot her. She begged him not to shoot her. She told him that the box was never released. After that, the defendant took $277 out of the cash register and ran out. He hopped into the backseat of the car, laid down, and told Robert to drive off. The robbery was the defendant’s idea. Robert knew nothing about it. Before entering the car, he told Robert that he was going to go in there and take money. Then he would lay down in the back seat and Robert would just drive off. He gave Robert $70. The statement was concluded at 9:31 p.m.

Sergeant Dyess testified that after the defendant gave the audiotaped statement, the defendant agreed to continue speaking to the officer. During this period, the officer questioned the defendant regarding the Los Tres Amigos incident. The defendant gave additional information. The officer then took a second audiotaped statement from the defendant. The reason the officer separated the two statements was because often cases are not tried together and separating the two cases would facilitate their use in court. The second statement involved the Los Tres Amigos incident. He identified the audiotape and the transcription of that statement. The prosecutor played the audiotape to the jury while the jury read along with the transcript. The second tape-recorded statement began at 10:04 p.m. Thus, there was approximately a half hour between the two statements. During |8that half hour, the officer asked the defendant questions about the Los Tres Amigos incident.

The second approximate five-minute statement, which was also taken in the presence of Lieutenant Bruce Harrison, contained a preliminary discussion concerning the waiver of rights. The defendant stated he agreed to cooperate and answer questions. He understood his statement was being recorded. Sergeant Dyess referred to the incident at the restaurant. The defendant stated he thought the restaurant serves Mexican food. The restaurant was located on Lapalco. Once again, the defendant was craving drugs and had no money. He had a black BB gun that was broken. He went straight to the cash register and approached a woman who was working there. He thought she was Mexican. He told her he needed change for a 10. He told her to open the cash register as he pulled the gun out and placed it on her head. He asked her to give him all of the money. It totaled approximately $417. Then he ran out the restaurant. The statement ended at 10:09 p.m.

Sufficiency

The defendant argues that the evidence was insufficient to support the convictions.

“ ‘In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.’ ” State v. Hughes, 05-0992, p. 5 (La.11/29/06), 943 So.2d 1047, 1051 (quoting State v. Captville, 448 So.2d 676, 678 (La.1984)). | ¡/‘Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, ‘assuming every fact to be proved that the evidence tends to prove.’ ” State v. Leger, 05-0011, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, Leger v. Louisiana, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (Citations omitted). “The statutory test of La. R.S. 15:438 ‘works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.’ ” Id.

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438.

“Furthermore, 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.” State v. Hughes, 05-0992, pp. 5-6 (La.11/29/06), 943 So.2d 1047, 1051 (Citations omitted). “Positive identification by one witness is sufficient to support a conviction.” Id., 05-0992 at 6, 943 So.2d at 1051.

The defendant was found guilty of armed robbery as to Count 2 and was found guilty of the lesser charge of first degree robbery as to Count l.

The defendant does not argue that the state failed to prove the elements of the offenses. Rather, he contends there was insufficient evidence to prove that he was the perpetrator.

Statements

| inThe defendant did not specifically assign as error the trial judge’s denial of his motion to suppress his statements, although he argues the statements were coerced and involuntary. Since he did not raise the denial of the motion as error, we struggled to discern the defendant’s assigned error and arguments. We glean from his sufficiency argument that he is primarily challenging the jury’s credibility determination with regard to whether the statements were coerced. Although we have addressed the sufficiency error and the arguments in toto, the better practice would have been to raise the admissibility of the statements as an assignment of error. In its brief, the state noted the defendant’s failure to assign as error the admissibility of the statements while also arguing the statements were coerced. As a precaution, the state presented argument in a footnote to counter what it characterized as the defendant’s challenge that his statements were involuntary and improperly admitted. It is unclear from the defendant’s brief whether he makes such a claim, but, to the extent that he does, we hold that the trial judge did not abuse his discretion in admitting the statements.

A trial judge’s ruling on the vol-untariness of a statement is given great weight and it will not be disturbed on review unless clearly unsupported by the evidence. State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537 (Citation omitted). In order to introduce a confession into evidence, the State must establish that the accused was advised of his constitutional rights. Id. Miranda requires that before custodial interrogation, law enforcement officers must inform the subject of his right to remain silent, that his statements may be used against him at trial, that he has a right to an attorney, and that if he cannot afford counsel, one will be appointed for him. The state has a heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege against selfjmcriminationn and his right to retained or appointed counsel. Id. Under La.R.S. 15:451, the state must prove the confession was free, voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.

At the suppression hearing, the state presented evidence to show that the defendant was sufficiently advised of his Miranda rights, that he understood the rights, and that he waived them before giving statements. The state also presented evidence that the statements were free, voluntary, and not made under the influence of force, coercion, intimidation, or promises. Therefore, the trial judge properly admitted the statements.

On appeal, the defendant suggests that his statements were suspect given the circumstances under which they were obtained; namely, the police questioned him during a non-recorded pre-interview far longer than they questioned him during the audiotaped confessions. During closing arguments, defense counsel argued that the pre-interview took four times as long as the taped statements, suggesting that the officers coached the defendant.

The jury heard testimony from Sergeant Larry Dyess and Lieutenant Bruce Harrison that the defendant, who executed a written waiver of his Miranda rights, was not coached or coerced during the time period within which they obtained pre-interview statements.

Sergeant Dyess testified that during the approximate 42-minute period before the first recorded statement, he went over the waiver form with the defendant, fixed him a cup of coffee, asked if the defendant needed the bathroom, and discussed the case. During the 30-minute period between the first recorded statement and the second recorded statement, he denied that the defendant was | l¿coached and pointed out that there were discrepancies between the defendant’s and Mr. Jackson’s versions of the events.

Lieutenant Bruce Harrison, who was present during the interviews, testified that he is presently the commander of the robbery section for the Jefferson Parish Sheriffs Office. He oversees investigations involving robberies. He explained that the audiotaped statement is used to corroborate any statements that are given by the defendant. Sometimes officers only have verbal statements because the defendants do not want to be recorded. He denied coaching the defendant. He testified that officers did not do that and that officers would not do that. It defeats the purpose of ensuring that the police have the right person if the police provide information to a suspect. Rather, officers want the suspect to tell them exactly what happened in order to confirm that the suspect is the right person. They do not want to put the wrong person in jail, especially if there is a pattern of robberies. If they put the wrong person in jail, the robberies continue.

He explained that officers spend time talking to the suspect, getting to know him, and making him comfortable. Most people do not immediately make admissions. It also takes a few minutes to go over the rights form. In this case there was more than one offense that they were investigating. Additionally, the normal procedure is that officers spend time gathering case files and obtaining a tape recorder and a tape. Sometimes officers step outside to discuss who will take the taped statement and what questions they want to make sure they cover. He does a lot of investigations. He does not know exactly what happened on that evening. But he can say this is the normal proce-

dure. He stated that absolutely no one ever prompted this defendant by feeding him information. He is able to say that that has never been done in his presence in the bureau.

1 iaThe credibility of witnesses is within the sound discretion of the trier-of-fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. McGinnis, 04-1286, p. 15 (La.App. 5 Cir. 10/6/05), 917 So.2d 471, 481, unit denied, 05-2469 (La.4/28/06), 927 So.2d 283. It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. Id. The jury evidently credited the officer’s testimony.

The jurors were made aware of the circumstances under which the defendant made the incriminating statements to the officers. It was the jury’s function to determine the credibility of those witnesses. The jurors were free to credit the testimony of the officers and to accept as true them accounts of the defendant’s confessions, as well as to accept as true the content of those confessions themselves.

Clearly, the jury had an adequate basis for deciding the credibility issue against the defendant.

Corpus Delicti

The defendant argues that there was no eyewitness to the Los Tres Amigos Restaurant robbery. The thrust of his argument is that his confession could not be used as the sole means to support the conviction.

The defendant admitted to the police that he robbed a restaurant he thought served Mexican food that was located on Lapalco while armed with a BB gun. He stated that he believed the female he robbed was Mexican. He also stated that he placed the gun on the victim’s head and demanded that she open the cash register. After taking approximately $417, he ran.

Mr. Martinez, the manager of the Los Tres Amigos Restaurant, testified that the restaurant is located on Lapalco. Someone took cash from the cash register | l4when Claudia Rodriguez was working there as the cashier. Ms. Rodriguez did not testify.

An accused “may not be convicted of a crime based solely on his own uncorroborated confession without some independent proof that a crime has been committed,” i.e. without proof of the corpus delicti. State v. Connolly, 96-1680, p. 14 (La.7/1/97), 700 So.2d 810, 820 (Citations omitted). The purpose of the “corroboration rule” is to test the reliability of a confession, thus preventing an erroneous conviction based solely on an untrue confession. Id. “This trustworthiness approach provides the necessary minimum assurance against convictions based on untrue confessions.” State v. Martin, 93-0285, p. 8 (La.10/17/94), 645 So.2d 190, 195, cert. denied, Martin v. Louisiana, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).

In order to fulfill the requirements of the corpus delicti rule, the state must prove (1) the injury specified in the crime occurred and (2) that the injury was caused by someone’s criminal activity involved in the charged crime. State v. Thibodeaux, 98-1673, p. 12 (La.9/8/99), 750 So.2d 916, 927, cert. denied, Thibodeaux v. Louisiana, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000) (Citations omitted). “Corroborating evidence need only show the essential injury involved in the charged crime (e.g., death caused by criminal activity in a murder charge) in order to establish the reliability of the inculpatory statements of the accused; the corroborating evidence need not show every element in the definition of the charged crime (e.g., the predicate felony in a felony murder).” Martin, supra, 93-0285 at 8, 645 So.2d at 195.

“Martin removed any confusion over the scope of the rule by expressly holding that the state need not produce independent evidence corroborating every element of the crime admitted in the accused’s statement as long as it establishes hBthe commission of a criminal act.” Thibodeaux, supra, 98-1673 at 12, 750 So.2d at 927.

The corpus delicti must be proven by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt. State v. Willie, 410 So.2d 1019, 1029 (La.1982) (Citations omitted). “This independent proof ... may be either direct or circumstantial in nature.” State v. Thibodeaux, 98-1673, p. 12 (La.9/8/99), 750 So.2d 916, 926-27, cert denied, Thibodeaux v. Louisiana, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000) (Citations omitted).

There is “no rule [that] requires the state to establish the corpus delicti by no other means than through the testimony of the victim of the crime.” State v. Lee, 01-2082, pp. 6-7 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 623, writ denied, 02-2549 (La.9/5/03), 852 So.2d 1019 (cited, with approval in State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 593).

Moreover, proof that the defendant was the person who engaged in the unlawful conduct, although necessary for the conviction, is not an element of the corpus delicti. State v. Joseph, 454 So.2d 237, 243 (La.App. 5 Cir.1984) (Citations omitted).

But, “[suspicion, rumor, gossip, or mere hearsay evidence is not sufficient to establish the proof of corpus delicti [.]” State v. Brown, 236 La. 562, 572, 108 So.2d 233, 236 (La.1959).

We are mindful that the touchstone of the “corroboration rule” is to test the reliability of a confession, thus preventing an erroneous conviction based solely on an untrue confession. Connolly, supra, 96-1680 at 14, 700 So.2d at. 820.

In this case, the defendant’s confession was made voluntarily under trustworthy circumstances and there are no signs that the confession was false or | ^coerced. We consider these factors relevant to the degree of corroboration that is required.

Here the state showed independent of the defendant’s admissions that someone committed the criminal act of taking the cash from the cash register at the time that Ms. Rodriguez was employed as a cashier in such a manner as to alarm the waiter. The defendant’s statement confirmed a material fact that a robbery occurred at the precise location of the restaurant robbery. It also provided details to explain why the waiter was visibly shaken, i.e., that the defendant placed a gun to Ms. Rodriguez’s head.

To sum up, we conclude that given the reliability of the defendant’s statement, and the fact that the essential injury was corroborated independently of the defendant’s statement, the state proved independently of the defendant’s statement that the injury was caused by someone’s criminal activity. Therefore, the state fulfilled the requirements of the corpus de-licti rule.

“Once the corpus delicti has been independently established, a confession alone may be used to identify the accused as the perpetrator of the crime.” State v. Celestine, 452 So.2d 676, 678 (La.1984) (Citations omitted).

Accordingly, there was sufficient corroborative evidence to establish the reliability of the defendant’s confession and to sustain a conviction as to the first degree robbery.

Witness Credibility

The defendant argues that there was insufficient evidence to convict him of the Daiquiri Dock robbery because the only identification — Ms. Dickinson’s — was suspect. And Mr. Jackson was biased.

The defendant contends that Ms. Dickinson’s identification was suspect for these reasons: (1) Ms. Dickinson testified that the robber was taller than she but 117the jury discovered during trial that the defendant was shorter than Ms. Dickinson. (2) Ms. Dickinson testified that she had been previously robbed and was motivated to convict someone of this crime. (8) Ms. Dickinson testified that she was able to make an identification despite the fact that the perpetrator wore a baseball cap and sunglasses. (4) Ms. Dickinson’s identification is suspect because it appeared to be coached. (5) Ms. Dickenson had her back turned to the robber during the robbery.

We first consider the defendant’s arguments regarding Ms. Dickinson’s identification.

It is undisputed that the robber’s face was not fully concealed. Ms. Dickinson explained that she had a good view of the robber. She described the perpetrator as wearing a baseball cap and sunglasses. She had no doubt that the person she identified in the photo array was the robber. Despite the fact that no person in the lineup wore sunglasses and a baseball cap, she was still able to make an identification. She explained that she also noticed the shape of the perpetrator’s face, forehead, cheeks, and lips as well as his age and height. He seemed to be her height of 5'8" or a few inches taller than she and in his early to mid '40’s. She explained, however, that she was in a fetal position and the robber was a couple of inches taller than she was at that point. In addition, she noticed his wide nose. Ms. Dickinson made an in-eourt identification of the defendant as the robber.

The defendant argues that Ms. Dickinson began to discuss various features about her perpetrator, because she focused on the defendant’s face in court while she described the robber. However, the in-court identification was not the first time that Ms. Dickinson identified the defendant. Ms. Dickinson had previously identified the defendant in a photographic lineup.

Sergeant Dyess testified that he did not recall the defendant’s height. During closing, defense counsel also argued that the jury could see the defendant was not | |Htaller than 5'8" as Ms. Dickinson had stated. During closing argument, defense counsel argued that the jury could see that the defendant was not taller than 5'8". However, “[c]losing arguments are not evidence to be considered by the jury.” State v. Boatner, 03-0485, p. 7 (La.12/3/03), 861 So.2d 149, 154. Here, Ms. Dickinson explained that her estimate of the robber’s height was based on her fetal position and at that time the robber was taller than she. Thus, evidently she could not get an accurate description of the robber’s height from her position.

During cross-examination, Ms. Dickinson testified that she had been previously robbed. When asked whether she wanted to make certain someone was apprehended this time, she replied that she wanted to see that the man who robbed her did not do it again. The jury could have reasonably concluded that she had no personal bias against the defendant but only wanted to make certain that the proper person was apprehended.

The defendant also argues that during cross-examination, Ms. Dickinson testified that the video accurately depicted what took place in the bar on the date of this robbery. But, a video had not been shown to her when she made this statement. Thus, this indicates that she was coached before she gave her testimony.

At trial, in response to the state’s questions, Ms. Dickinson replied that the video accurately depicted what took place that day. However, prior to that she was shown still photographs from the video. During cross-examination, defense counsel referred to her statement that the video properly depicted what happened that day. She explained that those were pictures from the video and she did not understand counsel’s question.

Since Ms. Dickinson had not been shown the actual video, the jury could have reasonably interpreted her response to mean that she was referring to the two Instill photographs as accurately depicting the incident. Thus, the jury could have reasonably concluded that there was no evidence that the prosecutor coached her.

The defendant notes that in the still photographs, Ms. Dickenson had her back turned to the robber during the incident and therefore she could not have identified him. At trial, Ms. Dickinson testified that the pictures showed the robber having his back to her. But, she never testified his back was to her the entire time. In fact, through her testimony and the defendant’s statement, there was evidence to the contrary. The defendant approached Ms. Dickinson and ordered a large daiquiri. The jury could have reasonably inferred that during that exchange, Ms. Dickinson had a good view of the robber.

Most notably, Ms. Dickinson stressed that she was positive that the defendant was the man and she positively identified him from a lineup. Given these facts, and the jury’s reasonable credibility determinations, the jury was entitled to find that the defendant was the robber.

We now consider the defendant’s arguments as to Mr. Jackson’s alleged bias.

The defendant argues that the jury’s reliance on Mr. Jackson’s testimony was misplaced because he had pending drug charges against him that were scheduled to be dismissed once he testified against the defendant.

Mr. Jackson testified that he had no prior convictions. He was presently incarcerated because he had a cocaine distribution charge in another division of the Jefferson Parish Court. The prosecutor who handled the defendant’s case was not the prosecutor handling Mr. Jackson’s case. According to Mr. Jackson, his case was going to be dismissed the day of trial because the District Attorney, the judge, and the court officers all agreed that the videotape did not show that he was the offender.

lapHe also testified that at the time he met with Sergeant Carroll, he had not been arrested for his current drug charge.

During cross-examination, trial counsel questioned Mr. Jackson about the fact that it seemed a coincidence that he was going to have the charge dismissed the same date that he was testifying against the defendant. Mr. Jackson responded that he did not view the dismissal as a coincidence. Rather, the drug charge in that case was being dismissed because the videotape did not show that he was the perpetrator. During redirect examination, he explained that the videotape was only played the week before this trial.

Most notably, Mr. Jackson’s description of the Daiquiri Dock robbery substantially matched that given by the defendant. Given these facts, and the jury’s reasonable credibility determination to credit Mr. Jackson’s testimony, the jury was entitled to find that the defendant was the robber.

Jury Deliberations

At some point during the deliberations, the jury requested the transcripts of the defendant’s statements as well as the au-diotaped interview. The defendant argues that the jury had misgivings about the evidence because the trial judge simply reread the jury instructions rather than allow the jury to view the evidence during deliberations. He asserts that this approach did not clarify any misgivings the jury had about the evidence. Thus, the jury misapplied the law when it returned a guilty verdict.

The defendant did not assign as error the trial judge’s failure to allow the jury to view this evidence during its deliberations, nor did trial counsel object to the court’s ruling. During trial, trial counsel agreed that the jury could not take the transcripts into the jury room. The thrust of appellate counsel’s argument is that the jury misapplied the law because the jury had “misgivings.”

DiLa.C.E. art. 606(B) prohibits a juror from testifying “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith!.]” Therefore, a court is generally prohibited from considering the jury’s state of mind.

The proper standard is the Jackson v. Virginia standard for sufficiency of the evidence.

Under the Jackson v. Virginia standard, we find that viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have determined beyond a reasonable doubt that the defendant committed the armed robbery at the Daiquiri Dock.

Error Patent

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

We note that there is a difference between the commitment/minute entry and the sentencing transcript regarding the defendant’s sentences. The transcript prevails when there is a discrepancy between the minutes and the transcript. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

Although the commitment/minute entry correctly reflects that the sentences were to run concurrently with case numbers 06-6355 and 06-6620, it incorrectly states that the sentences are to run concurrently “as well as with any and all other ^sentences presently serving.” The district court is directed to delete the above-quoted phrase in the commitment/minute entry.

The clerk of court is directed to transmit the original of the minute entry/commitment to the officer in charge of the institution to which the defendant has been committed. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Accordingly, it is ordered that the defendant’s convictions and sentences are affirmed. We further order that this case be remanded to allow the trial court to amend the commitment/minute entry as directed above.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Ms. Dickinson is also referred to as "Alta P. Dickinson” in the transcript.

      . We have reviewed the digitized videotape. It shows an individual, who is wearing a cap, pointing what appears to be a weapon at a woman at the bar. It also shows this individual hurriedly placing what appears to be cash in his pockets. The videotape does not, however, provide enough detail to accurately identify the perpetrator.

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

      . Under La.R.S. I4:64(A), armed robbery is defined as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” Under La.R.S. 14:64.1(A), first degree robbery is defined as "the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.”

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

      . The exception is that "a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention.” La. C.E. art. 606(B).


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Joseph FALL.
    No. 08-CA-295.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Desiree M. Valenti, David Abdullah, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellant.
    Kenneth J. Beck, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

Joseph Fall was arrested for possession of marijuana on April 13, 2006. On May-23, 2006, Fall was released from jail on a bond posted by agents of Financial Casualty & Surety, Inc. He was ordered to appear at an arraignment on May 30, 2006. The bond listed 308 Monzingo Richey Road in Waynesboro, Mississippi as his address.

The arraignment was reset for July 12, 2006 and subpoenas were issued to Fall and A-l Unlimited, the bond agent. A-l Unlimited received personal service of the subpoena on June 2, 2006. The subpoena for Fall came back without a return.

The arraignment was held on July 12, 2006. Fall did not appear. The State then moved for a bond forfeiture of the bond due to defendant’s failure to appear. Therefore, on July 12, 2006, trial court ordered that the bonds, in the aggregate amount of $17,750.00, be forfeited and entered judgment against A-l Unlimited and Financial Casualty & Surety, Inc., the surety. Certificates of Mailing Judgment of Bond Forfeiture indicate that notice of the judgment were mailed to Fall, A-l Unlimited, Financial Casualty & Surety and the District Attorney on ^August 9, 2006. The trial court record contains delivery confirmations from the United Postal Service indicating that A-l Unlimited received the notice on August 10, 2006 and Financial Casualty received notice on August 14, 2006.

Financial Casualty & Surety, Inc. filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment on September 24, 2007. Financial Casualty argued it was entitled to an absolute nonenforceable nullity because there was no proof in the record that Fall was served with notice of the court date for which the bond forfeitures were granted, instead, the subpoena shows no return from the sheriff. Further, Financial Casualty argued there was no proof in the record that the surety was served with notice of the court date for which the bond forfeitures were granted.

The trial court held a hearing on December 6, 2007 on the motion and on that same date granted the judgment in favor of Financial Casualty declaring the bond forfeitures rendered on July 12, 2006 in the aggregate amount of $17,750.00 be vacated, set aside, rescinded and declared to be an absolute nullity. The trial court also ordered that Financial Casualty be relieved of all further obligations under the original bonds. The State filed a Notice of Appeal on December 12, 2007. For the reasons set forth below, we affirm the trial court’s judgment.

DISCUSSION

In its Motion to Set Aside the Judgment of Bond Forfeiture and Petition for Nullity of Judgment, Financial Casualty argued there was no proof in the record that the defendant had been served with notice of the court date, therefore, the judgment of bond forfeiture was an absolute nullity. On appeal, the State asserts one assignment of error that the trial court erred in granting the Motion to Set Aside the Judgment of Bond Forfeiture and Petition for Nullity of Judgment because it was untimely.

|4The State must strictly comply with the provisions of the statute regulating bond forfeiture before a judgment of forfeiture can be entered. State v. Cook, 616 So.2d 272, (La.App. 2 Cir.1993), citing State v. Hathaway, 403 So.2d 737 (La. 1981). LSA-R.S. 15:85 sets forth the procedure used for the forfeiture of bonds. The statute states, in pertinent part:

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:

(l)Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney, if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.

Notice of the appearance date to defendant, the surety, and bondsman is governed by La.C.Cr.P. art. 344, which provides, in part:

B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant, or his duly appointed agent, and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety shall be given written notice of the time, date, and place the principal is required to appear.
|s(2) The notice may be delivered to the defendant or his duly appointed agent and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the day set for the appearance. The notice shall be mailed to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322.

LSA-C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law. Therefore, the failure to serve defendant properly with process as required by law is a vice of form on which a bond forfeiture judgment may be nullified. LSA-C.C.P. art. 2002(A)(2). State v. Cook, 616 So.2d 272, (La.App. 2 Cir. 1993), citing State v. Bailey, 567 So.2d 721 (La.App. 2 Cir.1990).

In this case, subpoenas were issued to defendant, at the address listed on his bond, and the bond agent, A-l Unlimited, giving notice of the July 12, 2006 arraignment date. The record shows that A-l Unlimited received personal service of the subpoena on June 2, 2006. However, the subpoena for the defendant came back without a return. Thus, there is no evidence in the record to indicate the defendant actually received notice of the arraignment hearing date, in accordance with La.C.Cr.P. art. 344. As a result, we find the trial court correctly found the defendant had not been served with notice of the arraignment hearing and therefore, the judgment of bond forfeiture must be annulled.

We also find the motion by Financial Casualty to be timely filed, even though the motion was filed more than sixty days after mailing of the notice of the judgment of bond forfeiture. The sixty-day period and the waiver provisions in LSA-R.S. 15:85 only apply to the assertion of a defense to the forfeiture and not to lathe surety’s action to annul a forfeiture judgment for vices of form under LSA-C.C.P. art.2001. State v. Cook, supra, citing State v. Bailey, supra.

LSA-C.C.P. art. 2002(B) provides that an action to annul a judgment on the grounds listed in Article 2002(A), which includes failure to serve defendant with notice, may be brought at any time. The motion filed by Financial Casualty seeks to nullify the judgment of bond forfeiture because the defendant had not been served with notice of the court date. Therefore, this nullity action could be brought by Financial Casualty, pursuant to LSA-C.C.P. art.2002, at any time and the sixty-day period set forth in LSA-R.S. 15:85 does not apply.

Accordingly, we affirm the trial court’s judgment granting the motion to set aside bond forfeiture.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Donald R. NELSON.
    No. 2008-KA-0584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2008.

      Keva Landrum-Johnson, District Attorney, David S. Pipes, Jr., Assistant District

      Attorney, New Orleans, LA, for State/Ap-pellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

statement of the Case

On October 17, 2007, after a trial by jury, Defendant/Appellant, Donald R. Nelson (“Mr. Nelson”) was found guilty as charged of attempted simple burglary and was sentenced to serve three years at hard labor, to run concurrently with any other sentence he may be serving. Mr. Nelson now appeals his conviction, arguing that the State failed to produce sufficient evidence to prove that he was the perpetrator of the crime.

Relevant Facts

At about midnight on February 11, 2007, Shelia Connolly (“Ms. Connolly”) and Libby Krimsier (“Ms. Krimsier”) were being dropped off at Ms. Connolly’s house, on Coliseum Street in New Orleans, by a friend. Upon nearing the house, the women observed a man lurking in front of the house and decided to circle the block. When they came back around to the house, the women saw the same man looking in the back of Ms. Connolly’s Honda CRV, which was parked on the street, and they saw the man trying to open the back door of the vehicle. The Mend who was driving the car honked her horn, startling the man, who then turned and started walking towards them. The women sped off and immediately called pthe police. As they drove off, they saw the man walking up Erato Street toward Prytania Street. Both women testified that the area was well-lit.

At trial, Detective Claudia Bruce testified that she and her partner received a call from dispatch at 12:08 a.m. regarding an incident that occurred on Coliseum Street, and they were given a description of the alleged perpetrator and the clothing that the he was wearing — a black male wearing a knit hat, a fatigue-style jacket and dark pants. Detective Bruce and her partner canvassed the area and observed a subject fitting the description of the perpetrator at the corner of Thalia and Prytania Streets, just two blocks from Ms. Connolly’s house. The subject, who was later identified as Mr. Nelson, was an African-American male wearing a knit cap, a fatigue-style jacket and dark pants. Mr. Nelson was detained by the officers at approximated 12:21 a.m. Detective Bruce’s partner then picked up Ms. Connolly and Ms. Krimsier and brought them to the location where Mr. Nelson was being detained. There, both women immediately identified Mr. Nelson as the person that was trying to enter Ms. Connolly’s car. At the time of the identification, Mr. Nelson was standing ten to twenty feet away from Ms. Connolly and Ms. Krimsier.

Errors Patent

A review of the record reveals no errors patent.

Assignment of Error

Mr. Nelson’s sole assignment of error is that the evidence that was presented against him at trial was insufficient to support his conviction. He specifically argues that the State did not present any fingerprints or other type of physical evidence that linked him to the attempted burglary, and under these circumstances, the State failed to negate any reasonable probability of that he was misidentified by Ms. Connolly and Ms. Krimsier.

pin State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

See also State v. Sykes, 04-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

Mr. Nelson was charged with and convicted of attempted simple burglary. A conviction for attempted simple burglary requires proof that the defendant committed “an act for the purpose of and tending directly toward” the unauthorized entry of a dwelling or other structure “with the intent to commit a felony or any theft therein.” La. R.S. 14:27; La. R.S. 14:62.

Mr. Nelson does not dispute that an attempted simple burglary occurred, but only that the witnesses have misidentified him as the perpetrator of the crime. He argues that his conviction rests solely on the identification testimony of the two women without any physical evidence, such as fingerprints, that links him to the crime. Mr. Nelson also notes no tools were found on his person when he was apprehended and that the perpetrator would likely have traveled more than two blocks in the roughly fifteen minutes it took for the police to stop him after the alleged attempted simple burglary occurred. However, these points are irrelevant since the use of tools is not a requirement of the crime of attempted simple burglary, and the fact that the perpetrator could have traveled farther in the time between the crime and apprehension is of no matter.

| Jn his brief, Mr. Nelson makes the blanket assertion that the one-on-one identification procedure utilized by the police was suggestive, yet he offers no argument in support of this claim. A defendant who challenges an identification must prove both that the identification itself was suggestive and that a likelihood of mis-identification existed as a result of the identification procedure. State v. Valentine, 570 So.2d 533, 535 (La.App. 4 Cir. 1990), citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Moreover, even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. See, e.g., State v. Thibodeaux, 98-1673, p. 21 (La.9/8/99), 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. Thibodeaux, supra, 98-1673, p. 21. Thus, one-on-one identifications like the one utilized by the police in this case, are generally not favored, although such an identification procedure is permissible under certain circumstances. State v. Benoit, 07-35, p. 6 (La.App. 5 Cir. 5/29/07), 960 So.2d 279, 283. For example, one-on-one identifications are justified when the accused is apprehended within a relatively short period of time after the occurrence of the crime and when the accused has been returned to the scene for immediate identification. State v. Hurd, 05-258 (La. App. 5 Cir. 11/29/05), 917 So.2d 567, 571. Immediate confrontation assures the reliability of the identification as the perpetrator’s appearance is fresh in the witness’ mind, lessens the possibility that the perpetrator’s clothes or appearance will be changed, 1 nand insures early release of innocent subjects. State v. Frank, 344 So.2d 1039, 1041 (La.1977).

In this case, the eyewitnesses, Ms. Connolly and Ms. Krimsier, provided a physical description of the subject to the police. Additionally, they testified that as they drove off, they saw the perpetrator walking toward Prytania Street. Detective Bruce and her partner apprehended Mr. Nelson on the corner of Thalia and Prytania Streets wearing the exact clothing that the eyewitnesses had described. Within minutes of Mr. Nelson’s apprehension, the women identified him as the perpetrator. Given these circumstances, we find that the one-on-one identification of Mr. Nelson was not suggestive. However, even if it was suggestive, Mr. Nelson would still have to show that the identification was unreliable. Even a suggestive out-of-court identification will be admissible if it is found to be reliable under the totality of the circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517.

In Manson v. Brathwaite, supra, 97 S.Ct. 2243, the U.S. Supreme Court set out a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Id. at 2253. The ^corrupting effect of the suggestive identi-fieation itself must be weighed against these factors. State v. Martin, 595 So.2d at 592, 595 (La.1992).

Here, both women testified that the area in which they observed the perpetrator was well-lit. They testified that the perpetrator turned and walked towards them before they sped off. Their description of Mr. Nelson’s appearance was accurate, and both women positively identified Mr. Nelson as the perpetrator of the crime just minutes after it took place. In sum, under Manson, the identification of Mr. Nelson was reliable, and the jury’s finding that Mr. Nelson was the perpetrator of the attempted simple robbery is supported by the evidence. Thus, Mr. Nelson’s argument that the evidence was insufficient because the state failed to prove that he was the perpetrator of the crime is without merit.

The jury was aware of all the factors asserted by Mr. Nelson. It heard the trial testimony of one of the detectives, who confirmed that Mr. Nelson had no tools on his person at the time he was apprehended and that no crime lab personnel were called to the scene for the purposes of taking photographs and lifting fingerprints. But more importantly, the jury also heal'd from the eye-witnesses, who were absolutely positive in them identification of Mr. Nelson as the perpetrator. The jury weighed the testimony of the state’s witnesses and apparently found them to be credible and this finding should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 00-1082 (La.App. 4 Cm 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432.

We find that the eyewitness identification of Mr. Nelson as the perpetrator of the crime was credible and reliable and that the State sufficiently negated any reasonable probability of misidentification. We also find that, based on the |sevidence presented at trial, a reasonable trier of fact could have found, beyond a reasonable doubt, that Mr. Nelson was the perpetrator of the crime. Therefore, the jury’s finding that Mr. Nelson was the perpetrator of the attempted simple robbery of Ms. Connolly’s vehicle is suppoi'ted by the evidence and must be upheld.

Decree

Accordingly, for the reasons set forth herein, we affirm Mr. Nelson’s conviction and sentence for the crime of attempted simple burglary.

AFFIRMED.

      . See, e.g., State v. Valentine, supra, 570 So.2d 533 (La.App. 4 Cir. 1990), wherein this Court upheld one-on-one identifications by two witnesses to an armed robbery of a restaurant that were based mainly on the similarity of clothing between the defendant and the perpetrator. In Valentine, the defendant was apprehended near the scene of the robbery and taken back to the scene within thirty minutes to an hour of the robbery. The witnesses separately went to the police car to view the defendant as he sat handcuffed in the back of the police car. Although one witness identified the defendant based mainly upon the distinctive shirt he wore, the other witness saw the defendant outside the restaurant just prior to the robbery dressed in the same manner as the robber. Based on these circumstances, the court held that the identification procedure was not suggestive.


text:
    CITY BLUEPRINT & SUPPLY COMPANY, INC. v. Bob BOGGIO and Morrison Insurance Agency, Inc. and Their Insurance Carrier, XYZ Insurance Company.
    No. 2008-CA-1093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2008.

      Daniel E. Becnel III, The Law Offices of Daniel E. Becnel, Jr., LaPlace, LA, for PlaintifflAppellant.
    Max J. Cohen, Melanie Lockett, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Bob Boggio and Morrison Insurance Agency, Inc.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD.
   EDWIN A. LOMBARD, Judge.

| ¡¿Plaintiff, City Blueprint & Supply Company, Inc. (“City Blueprint”), appeals a summary judgment rendered in favor of Defendants, Morrison Insurance Agency, Inc. (“Morrison, Inc.”) and Bob Boggio (“Mr. Boggio”). After a de novo review of the record in light of the relevant law, we affirm the trial court’s judgment granting Defendant’s Motion for Summary Judgment.

Relevant Facts

In 2001, David and Robert Mahoney (hereinafter collectively referred to as “the Mahoney brothers”) became the sole owners of their father’s business, City Blueprint. For many years, City Blueprint and the Mahoney brothers had a positive, long-standing relationship with their insurance agent, Mr. Boggio, who was employed by Morrison, Inc., and who the Mahoney brothers used to procure City Blueprint’s yearly Commercial Package insurance policy.

According to their deposition testimony, the Mahoney brothers would meet with Mr. Boggio once a year to renew the policy. However, at no time did either of the Mahoney Brothers ever specifically request that Mr. Boggio procure flood insurance for City Blueprint or inquire as to whether the policy included flood insurance. Rather, according to both brothers, they just assumed that the phazard/fire policy they obtained through Mr. Boggio covered the property against flood damage since Mr. Boggio had always assured them that they were “fully covered.” In March 2005, Mr. Boggio procured St. Paul Travelers Commercial Package policy number BK02023019 on behalf of City Blueprint. Robert Mahoney, who had the duty of dealing with insurance coverage for City Blueprint, admits that he never actually read the policy and was unaware that the policy contained a flood exclusion. Likewise, David Mahoney admitted that he also failed to read the policy and was unaware that it contained a flood exclusion. Both of the Mahoney brothers testified that they had no idea whether any of their former policies provided flood insurance.

On August 29, 2005, the building in which City Blueprint is located (“the property”) sustained damage from flooding associated with Hurricane Katrina. Robert Mahoney testified that it was not until after the hurricane that he and his brother learned that they did not have flood insurance on the property.

On August 29, 2006, City Blueprint filed suit against Mr. Boggio and Morrison, Inc., asserting claims of negligence and negligent misrepresentation, breach of fiduciary duty, failure to obtain flood coverage, failure to advise regarding flood insurance options and availability, failure to train and adequately supervise agents regarding flood coverage options and failure to institute a policy whereby all agents would advise clients regarding flood coverage options.

Morrison, Inc. and Boggio filed a Motion for Summary Judgment on the basis that they owed no duty to procure flood insurance for City Blueprint and no duty to advise City Blueprint with respect to coverage. The trial court granted the ^Motion and dismissed the claims against the Defendants. City Blueprint now appeals.

Specifications of Eiror

On appeal, City Blueprint sets forth two specifications of error. First, it argues that the trial court erred in finding that Mr. Boggio and Morrison, Inc. owed no fiduciary duties to procure or advise City Blueprint with respect to flood insurance. City Blueprint argues that substantial issues of material fact exist in determining whether the alleged conduct of the defendants both before and after Hurricane Katrina warranted City Blueprint’s assumption that being “fully covered” for “hazards” meant that the policy provided coverage for flood damage caused by the storm. Second, City Blueprint argues that the trial court erred in finding that no substantial issue of material facts exist that are sufficient to defeat defendants’ claim that they are immune from liability since the policy at issue contains a flood exclusion.

Law & Analysis

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Billes/Manning Architects v. Accountemps, Div. of Robert Half of Louisiana, 98-3044 (La.App. 4 Cir. 9/15/99), 742 So.2d 728, 731. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law. La.Code Civ. Proc. art. 966(B). Therefore, we must conduct | Bour own thorough review of the record and the relevant law to determine if Mr. Boggio and Morrison, Inc. are liable to City Blueprint for failing to procure flood insurance on the property.

In Louisiana, an insurance agent owes a fiduciary duty to the insured under certain circumstances. Offshore Prod. Contractors, Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229 (5th Cir.1990). An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. Taylor v. Sider, 99-2521, p. 3 (La.App. 4 Cir. 5/31/2000), 765 So.2d 416, 418 (emphasis added). An insured may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. Id., citing Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730 (La.1973). Insurance agents and brokers owe the same duty to a client for whom the agents or brokers have agreed to procure insurance. Id., p. 4, citing Durham v. McFarland, Gay and Clay, Inc., 527 So.2d 403 (La. App. 4 Cir.1988) and McCartney v. State Farm Ins. Co., 567 So.2d 1168 (La.App. 3 Cir.1990). If a duty is imposed by the relationship of the parties and the duty is breached by an act or omission of a party then that party is liable for such acts of omission or commission. Taylor, 99-2521, p. 4.

In Porter v. Utica Mutual Ins. Co., 357 So.2d 1234 (La.App. 2 Cir.1978), the Second Circuit Court of Appeal held that a plaintiff may recover for loss arising from the failure of an insurance agent to obtain insurance coverage if plaintiff can establish three elements: (1) an undertaking or agreement by the 16agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) that actions of the agent warranted an assumption by the client that he was properly insured. Id. at 1238.

Applying those principles to the facts of this case, we find that City Blueprint cannot satisfy the first requirement of Porter, since there was no agreement on behalf by defendants to procure flood insurance on the property. Both Mahoney brothers acknowledged that they never specifically requested that Mr. Boggio obtain flood insurance on the property. Both admit that they never asked Mr. Boggio if the policy provided flood insurance. The evidence in the record clearly indicates that the Mahoney brothers did not request that Defendants procure flood insurance for City Blueprint. Thus, City Blueprint cannot show that Mr. Boggio and Mom-son, Inc. breached a duty by failing to procure flood insurance.

City Blueprint also argues that Mr. Boggio and Morrison, Inc. are liable for their negligent failure to advise the Maho-ney brothers about the various flood insurance options and whether City Blueprint needed to have flood insurance. However, City Blueprint cannot support this claim either, since no such duty exists. See, e.g. Dobson v. Allstate Ins. Co., 2006 WL 2078423 (E.D.La.7/21/06) (unpublished).

17In Dobson, supra, the plaintiffs alleged that their insurance agents failed to tell them that they were underinsured. Like the Mahoney brothers, the plaintiffs in Dobson did not allege that they specifically inquired about a particular type or amount of coverage, but admitted they relied upon their agents to obtain an adequate type and amount of coverage. The court found that the agents had no duty “to spontaneously identify a client’s needs and advise him as to whether he is under-insured or carries the right type of coverage.” Id. *10; See also Parker v. Lexington Ins. Co., 2006 WL 3328041 (E.D.La. 2006) (unpublished). Similarly, in Whitehead v. State Farm Ins. Co., 2006 WL 3747520, *2 (E.D.La.2006) (unpublished), the court noted that there are no Louisiana eases that impose a duty on an agent to identify a client’s needs and advise the client that he is underinsured or does not have the proper type of insurance (observing that an agent would, however, have had a duty if the plaintiffs requested a specific type or amount of insurance that the agent failed to provide). Moreover, the “client is himself considered responsible for adequately advising the agent of the coverage needed and for reading the clear provisions of the insurance policy.” Frischhertz v. Lexington Ins. Co., 2006 WL 3228385, p. 2 (E.D.La.2006) (unpublished). Thus, City Blueprint’s claim based on Defendants’ failure to advise the Mahoney brothers regarding flood insurance is without merit.

Finally, City Blueprint claims that Mr. Boggio and Morrison, Inc. negligently misrepresented the extent of city Blueprint’s coverage by assuring the Ma-honey brothers that City Blueprint was fully covered. To recover on a claim of negligent misrepresentation, a plaintiff must show “(1) a legal duty to supply correct information; (2) breach; and (3) damages resulting from justifiable reliance [son the misrepresentation.” Abbott v. Equity Group, Inc., 2 F.3d 613 (5th Cir.1993). Here, the Mahoney brothers argue Mr. Boggio’s assurance that City Blueprint was “fully covered” (a statement that Mr. Boggio denies ever making) was a misrepresentation of the extent of the coverage. Mr. Boggio argues that to him “fully covered” meant “fully covered against hazards” such as fire and theft, but not against flood.

Regardless of whether Mr. Boggio made the statement, City Blueprint’s reliance on the statement to mean that it had flood insurance was unreasonable in light of the fact that the policy in this case specifically contains a straightforward, uncomplicated, exclusion against damage caused by flood. The Mahoney brothers testified that although Mr. Boggio never told them that flood insurance was included in the commercial insurance package, they assumed that flood insurance was included. This blind assumption is not justifiable. An insured is responsible for reading his policy and is presumed to know its terms. Stephens v. Audubon Ins. Co., 27,-658 (La.App. 2 Cir. 12/6/95), 665 So.2d 683. Here, the Mahoney brothers admitted that they failed to read the policy and were unaware that it contained a flood exclusion. A simple review of the policy would have put the Mahoney brothers on notice that their company was not covered for damages arising from a flood. Thus, City Blueprint’s claim for negligent misrepresentation must also fail.

Decree

City Blueprint cannot meet the elements of any alleged claim against Mr. Boggio and Morrison, Inc. No genuine issues of material fact exist and Defendants |9are entitled to summary judgment as a matter of law. Accordingly, the trial court’s judgment granting Defendants’ Motion for Summary Judgment is affirmed.

AFFIRMED.

      . In the aftermath of Hurricanes Katrina and Rita, Louisiana federal district courts considered whether insurance agents have an affirmative duty to inform an insured about the availability of flood coverage in excess of the NFIP limits, and whether insurance agents have an independent duty to spontaneously identify their clients’ needs and advise them as to whether they are underinsured. The resounding conclusion is that such duties do not exist under Louisiana law. Cameron Parish School Bd. v. State Farm Fire and Cas. Co., 560 F.Supp.2d 485, 489 (W.D.La.2008).