text:
    STATE of Louisiana v. Tyrone DANIELS
    NO. 2018-KA-0565
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 26, 2018
    John T. Fuller, JOHN T. FULLER & ASSOCIATES, L.L.C., 909 Poydras Street, Suite 2270, New Orleans, LA 70112, COUNSEL FOR APPELLANT
    Leon Cannizzaro, District Attorney, Donna Andrieu, Scott G. Vincent, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )
    Judge Dale N. Atkins The defendant, Tyrone Daniel, was tried for an incident that occurred on April 1, 2014, at the Untouchable Car Wash on Chef Menteur Highway in New Orleans. The jury returned a verdict convicting defendant of second degree murder for shooting and killing Dion "Nupea" Johnson. The defendant now appeals his conviction and assigns six assignments of error, each of which is addressed below.
    UNDERLYING FACTS
    The victim, Dion Johnson, nicknamed "Nupea," was an employee at the Untouchable Car Wash. On April 1, 2014, Nupea was detailing a car for Ms. Linetria Johnson (no relation to the victim, Dion Johnson). Nupea and the defendant, who were first cousins, engaged in an altercation that was witnessed by Allden Franklin, another employee at the Car Wash; Ms. Johnson, whose car was being detailed; and Jujuan Holmes, who also was present at the scene. These witnesses and the defendant all testified at trial.
    Defendant's account of the shooting was that he was shining the tires of his own vehicle when Mr. Johnson, Jujuan Holmes, and an unidentified tattooed man approached him. Defendant testified that Mr. Johnson said: "It's beef," which means war. Defendant testified that he responded: "Are you serious? Me?" The victim replied with an expletive, and defendant stood up. Defendant heard the men laugh, and the victim allegedly said: "You ain't about that life." Jujuan Holmes then allegedly told the victim to "smoke" defendant.
    Defendant testified that he ran to his car, got in, and locked it. He assumed that the tattooed man was armed. Defendant said that he wanted to leave but someone had taken his keys. He looked for his keys on the floor and started to cry, thinking that he had been set up. He then heard a loud "boom" that sounded like someone had hit his car, possibly trying to break the window. Defendant testified that he remembered that the victim, Mr. Johnson, had left his (the victim's) gun in defendant's car. Defendant obtained the gun and testified that he reluctantly got out of the car to ask Mr. Johnson for defendant's car keys. Defendant stated that he looked Mr. Johnson in the eye and asked for his keys, and then heard Mr. Holmes say again to "smoke him." The victim then obtained a ladder and, according to defendant, threw the ladder at defendant. Defendant also claims that he heard Mr. Johnson say: "I'm gonna kill you." Defendant then took the gun out of his pocket and claims that with his eyes closed he fired in the direction of Mr. Johnson, Mr. Holmes, and the tattooed man.
   After the shooting, defendant claims that he placed the gun on top of his car and ran away confused and scared. When questioned as to why he used the gun, he stated that Mr. Johnson was "trying to kill" him.

According to other witnesses' testimony, at some point Mr. Johnson and defendant exchanged words, resulting in Mr. Johnson throwing a ladder or step-stool either at defendant's vehicle, according to the testimony of Allden Franklin, Lenetria Johnson, and Jujuan Holmes; or, as defendant testified, directly at defendant. Defendant then obtained a gun, either from the console in the interior of his vehicle, as defendant testified, or from the trunk of his vehicle, according to the testimony of Mr. Allden Franklin. The defendant fired several shots at Mr. Johnson, one of which entered Mr. Johnson's back, pierced his aorta, and exited his chest.

The record contains no evidence to show that Mr. Johnson also had a gun on his person. Mr. Allden Franklin testified at trial that he never believed Mr. Johnson was going to kill defendant, because Mr. Johnson didn't have a weapon on him.

The Chief Forensic Pathologist at the Orleans Parish Coroner's Office, Dr. Samantha Huber, testified that the victim had a perforating gunshot wound that entered on the left edge of the back, hit a rib, both lungs, the liver, and the aorta, and exited at the right front of the chest.

Errors Patent

We have reviewed the record for errors patent and have found none.

Assignment of Error Number 1

Defendant asserts that there was insufficient evidence to support the conviction, arguing that the State failed to meet its burden of proving that the killing of Dion Johnson was not committed in self-defense. Defendant argues that the evidence shows Mr. Johnson displayed "violent behavior" and that Mr. Johnson attacked defendant with a ladder or stool. Defendant further points to evidence that Mr. Johnson told defendant: "I'm going to kill you" to support his belief that he was in imminent danger of being harmed by Mr. Johnson and two other men. Defendant claims that he closed his eyes and fired the gun, and he argues that the State failed to present any credible evidence to contradict these facts.

When reviewing a conviction for sufficiency of evidence, this Court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Brown , 2012-0626, pp. 6-7 (La. App. 4 Cir. 4/10/13), 115 So.3d 564, 570-71 (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). See also La. C.Cr.P. art. 821 (B) ("A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty."). Brown further explains:

The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith , 600 So.2d 1319, 1324 (La. 1992).

2012-0626 at p. 7, 115 So.3d at 571. "The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law." State v. Nellum , 2013-0360, p. 8 (La. App. 4 Cir. 2/12/14), 136 So.3d 120, 125. " '[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.' "

Id. (citing State v. Smith , 600 So.2d 1319, 1324 (La. 1992) ).

In this case, Mr. Daniel was convicted of second degree murder, which is defined as the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1 (A)(1). Specific intent is the state of mind that exists "when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10 (1). Specific intent can be formed in an instant, and may be inferred from the circumstances and actions of the defendant. State v. McElveen , 2010-0172, p. 20 (La. App. 4 Cir. 9/28/11), 73 So.3d 1033, 1052. The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Bernard , 2014-0580, p. 12 (La. App. 4 Cir. 6/3/15), 171 So.3d 1063, 1073 ; State v. Seals , 1995-0305, p. 6 (La. 11/25/96), 684 So.2d 368, 373.

The State introduced evidence at trial to show that defendant entered his vehicle, obtained a gun, exited his vehicle, and, after defendant asked Mr. Johnson for defendant's keys, defendant fired six or seven shots in the direction of Mr. Johnson, actions which are sufficient to prove that defendant had specific intent to kill. Bernard , 2014-0580, p. 12, 171 So.3d at 1073. Based on the applicable law and the facts elicited at trial, the fact finder was reasonable in concluding that the State successfully proved defendant had specific intent to kill or inflict great bodily harm when defendant aimed a weapon in the direction of the victim and fired several shots.

Defendant further asserts, however, that the State failed to meet its burden of proving beyond a reasonable doubt that the act was not committed in self-defense, because the evidence shows that the victim , Mr. Johnson, was the aggressor, not defendant. According to defendant, he was kneeling down and shining the wheels on his car when the altercation began. Defendant argues that Mr. Johnson initially displayed violent behavior when he threw a ladder at defendant and said, "I'm going to kill you." Defendant further argues that no witness refuted the fact that Mr. Johnson threatened to kill him, and defendant points out that Jujuan Holmes told the victim to "smoke him." Defendant also claims that he believed that the tattooed man had a gun in his waistband. Further, defendant entered his car with the intent to leave the Car Wash, but he alleges that Mr. Johnson had taken his keys.

The standard of review is whether a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the homicide was not committed in self-defense or in defense of others. State v. Labat , 2012-1210, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 665, 667 (quoting State v. Matthews , 464 So.2d 298, 299 (La. 1985). "The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction." Id. (citing State v. Wells , 2010-1338, p. 5 (La. App. 4 Cir. 3/30/11), 64 So.3d 303, 306. "A factfinder's decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence." Id. (citing State v. James , 2009-1188, p. 4 (La. App. 4 Cir. 2/24/10), 32 So.3d 993, 996 ).

A homicide is justifiable if committed by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. La. R.S. 14:20(A)(1) ;

State v. Ray , 2010-1126, p. 9 (La. App. 4 Cir. 6/29/11), 70 So.3d 998, 1004 (citing State v. McClain , 1995-2546, p. 8 (La. App. 4 Cir. 12/11/96), 685 So.2d 590, 594 ). "[I]t is necessary to consider whether [defendant] had a reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm and whether the killing was necessary, under the circumstances, to save [defendant] from that danger." Id.

It was undisputed at trial that Mr. Johnson, the victim, was not armed. Although the defendant testified that he thought the tattooed man was "clutching" a gun in his waistband, there is no evidence in the record to independently corroborate this assertion. In addition, defendant testified that he exited his car and approached Mr. Johnson to ask for his keys. Based on defendant's own testimony regarding the sequence of events, it was not unreasonable for the jury to conclude that the defendant was not fearing for his life and therefore that the homicide was not committed in self-defense.

The fact that defendant fled the scene after the shooting also does not comport with that of a man who believed he acted in self-defense. "Flight is a circumstance from which guilt can be inferred." State v. Rubens , 2010-1114, p. 7 (La. App. 4 Cir. 11/30/11), 83 So.3d 30, 38.

Based on the evidence presented at trial, it was not unreasonable for the jury to conclude that fleeing the scene constituted evidence of guilt on the part of the defendant. See State v. Gray , 2016-0687, p.9 (La. 3/15/17), 218 So.3d 40, 47 ; see also State v. Fuller , 418 So.2d 591, 593 (La. 1982) (citing State v. Davies , 350 So.2d 586, 588 (La.1977) ). The jury's determination concerning witness credibility is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. James , 2009-1188, p. 4 (La. App. 4 Cir. 2/24/10), 32 So.3d 993, 996.

The forensic evidence offered at trial also shows that Mr. Johnson was shot in the back, not in the front, indicating that it was reasonable to conclude that Mr. Johnson was not approaching defendant when defendant fired shots in Mr. Johnson's direction. This Court rejected a similar self-defense claim in State v. Ventry , 1999-0302, p. 4 (La. App. 4 Cir. 6/14/00), 765 So.2d 1129, 1132, where the forensic evidence showed that the victim was shot in the back of the head. In addition, Detective Nicholas Williams, the lead detective in the present case, testified that the spent bullet casings formed a straight line from where the defendant said he was standing to Mr. Johnson's body, suggesting that Mr. Johnson was fleeing rather than approaching the defendant.

After reviewing the evidence in the light most favorable to the prosecution, we find that the State proved that defendant acted with specific intent to kill and that defendant did not act in self-defense. The evidence was sufficient to support the verdict of guilty of second degree murder, and we find no merit to defendant's first assignment of error.

Assignment of Error Number 2

In defendant's second assignment of error, he argues that the district court should have granted a mistrial when the prosecutor referenced the grand jury proceedings while questioning the defendant. Defendant contends that this violated La. C.Cr.P. art. 434, which mandates secrecy of grand jury proceedings. More specifically, defendant claims that the prosecutor "asked the defendant whether he knew that his girlfriend told the grand jury that the gun he used to kill Nupea was not Nupea's gun" but was the defendant's own gun. Our review of the record does not support defendant's argument, however.

During direct examination, the defendant testified:

I remembered that Nupea [Mr. Johnson] left his gun in my car. I got it out the middle console, but I was still scared to get out [of the car]. I sat there for a second. I reluctantly got out of the car, man. I walked around the back. I looked Nupea straight in the eyes and I said, "Give me my keys, son." [I] heard Jujuan say, "Man, smoke him." Nupea took the ladder and he hummed it at my head. And they were charging towards me so I took the gun out of my pocket and I fired in their direction with my eyes closed, man.

On cross-examination, the prosecutor asked defendant:

Q. At what point did you get your gun?
A. It's not my gun. It's Nupea's gun.
Q. Are you aware that your girlfriend testified before the grand jury about that gun?

Defense counsel then lodged an objection and demanded a mistrial due to the prosecutor's reference to grand jury testimony. The district court sustained the objection but denied defendant's request for a mistrial. The State continued:

Q. Had you talked to your girlfriend about any statements she made regarding that gun?

Defense counsel again objected, but the district court overruled the objection on the basis that the State had not referenced the grand jury in the second question. The defendant invoked his Fifth Amendment privilege and refused to answer the question. The prosecutor then asked:

Q. When did you get the gun?
A. When I was in the car.

The prosecutor did not further question defendant about ownership of the gun or make any additional reference to the testimony of defendant's girlfriend during the grand jury proceedings.

Defendant contends that the Sixth Amendment bars admission of testimonial statements by a witness who did not appear at trial unless the witness is unavailable to testify and the defendant has an opportunity to cross-examine the witness. Davis v. Washington , 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defendant argues that none of the exceptions for disclosing grand jury testimony apply here. Further, defendant cites State v. Ross , 2011-1668 (La. App. 4 Cir. 12/19/12), 144 So.3d 1037, writ granted , 2013-0175 (La. 11/15/13), 125 So.3d 95, rev'd , 2013-0175 (La. 3/25/14), 144 So.3d 932, for the proposition that the exceptions for revealing grand jury testimony are very limited.

In contrast, the State argues that an exception found in La. C.Cr.P. art. 434.1 (C) permitted the prosecutor to refer to the grand jury. Article 434.1 (C) provides: "The district attorney may also disclose to a witness at trial, including the defendant if the defendant testifies, any statement of the witness before the grand jury that is inconsistent with the testimony of that witness."

As to defendant's reference to State v. Ross , we note that in contrast to the facts in Ross , no grand jury "testimony" or "materials" were actually offered in this case. Although the colloquy shows that the prosecutor questioned defendant about his knowledge of his girlfriend's grand jury testimony, the substance of that testimony was never offered or discussed. Thus, Ross does not apply here.

The State's reference in its brief to La. C.Cr.P. art. 434.1 (C) is also misplaced, because Article 434.1 (C) applie s only when impeaching a witness at trial because the witness's statement before the grand jury is inconsistent with the trial testimony. See State v. Taylor , 2018-0192, p. 5 (La. App. 4 Cir. 5/23/18), 247 So.3d 1192, 1195. Here, no actual statement was offered, much less used for impeachment, because the defendant's girlfriend did not testify at trial.

In short, no testimony from the grand jury became a part of the trial record. When the prosecutor asked defendant about the gun a second time and without referencing the grand jury, defendant invoked his Fifth Amendment privilege. No evidence regarding any testimony given before the grand jury was elicited. But even if we determined that the prosecutor's reference to the grand jury was inappropriate under La. C.Cr.P. art. 434, the trial court sustained the defendant's objection immediately after it occurred. Furthermore, if there were any error in the trial court's handling of this issue, that error is harmless, because ownership of the gun had no bearing on defendant's conviction. See State v. Falkins, 2012-1654, pp. 18-19 (La. App. 4 Cir. 7/23/14), 146 So.3d 838, 851 (finding that testimony improperly introduced into evidence is harmless error if it did not contribute to the verdict). We find defendant's second assignment of error has no merit.

Assignment of Error Number 3

In his third assignment of error, defendant contends that the district court erred in admitting a hearsay statement when the prosecution was questioning Jujuan Holmes, a witness to the shooting and a friend of the victim, Mr. Johnson. The prosecutor asked: "Did [Mr. Johnson] say anything to you when [the defendant's] car arrived at the carwash." Mr. Holmes replied: "Yeah. He was like, 'Man, I hope he don't come to my job with all that.' I was like, 'just try to stay away from him.' "

Counsel for defendant objected that the statements were hearsay. The prosecutor indicated that the statements were not hearsay because they were not being offered for the truth of the matter asserted but were a frame of reference for the jury. The district court overruled defense counsel's objection. The prosecutor again asked Mr. Holmes if Mr. Johnson had said, in reference to the defendant, "Get from by my job?" Mr. Holmes said: "He was like, 'Get from here with all that,' like, 'go ahead.' " Counsel for defendant again objected on the basis of hearsay. The prosecution replied that the statement was not being offered for the truth of the matter asserted, but instead for what statements were made immediately before the shooting. The court again overruled the objection. Defense counsel then said: "Please note our exception. And as long as the State is offering them and saying they're not truthful, we don't have a problem."

La. C.E. art. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is generally excluded unless specifically permitted by the Code of Evidence or other legislation (see La. C.E. art. 802 ), because the value a jury places on a statement depends upon its declarant, and the defendant cannot challenge the declarant's credibility by cross-examination or other safeguards of reliability if the declarant is not present at trial. See State v. Martin, 458 So.2d 454, 460 (La.1984) ; State v. Wiltz, 2008-1441, p. 7 (La. App. 4 Cir. 12/16/09), 28 So.3d 554, 559. If the statement is offered for a purpose other than to prove that the matter asserted is true, the statement is not hearsay. Thus, "the value of the statement as evidence does not depend on the credibility of the out-of-court asserter and the statement falls outside of the scope of the hearsay exclusionary rule." Wiltz, 2008-1441, p. 7, 28 So.3d at 559 (internal citations omitted).

La. C.E. art. 803 also provides, in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or his future action.

Under La. C.E. art. 803(3), statements that show the declarant's state of mind are generally admissible if the declarant's state of mind is at issue. State v. Plaisance, 2000-1858, p. 24 (La. App. 4 Cir. 3/6/02), 811 So.2d 1172, 1190.

The exchange among the district court and the attorneys indicates that the statements uttered were not hearsay, because they were not offered for the truth of the matter asserted but rather to show Mr. Johnson's state of mind just prior to the shooting. Additionally, immediately after making two objections as to hearsay, counsel for defendant agreed on the record: "as long as the State is offering them and saying they're not truthful, we don't have a problem. " The prosecution agreed that the statements were not being offered for their truth, and defendant seemingly acquiesced.

Even without defense counsel's acquiescence, we find no error here. In State v. Martin, 458 So.2d at 460, the Louisiana Supreme Court upheld the introduction of hearsay testimony where the victim previously told a witness that she feared the defendant would kill her if she tried to leave him. The Court noted that this testimony was offered as indirect proof of her state of mind, and was relevant because it indicated that "her state of mind was one of fear of the defendant and of anticipation that a certain event might trigger violence against her by the defendant." Id. at 461. Here, as in Martin , the trial court overruled the hearsay objection, and we cannot say the trial court abused its discretion in this regard. "A trial court's ruling as to the admissibility of evidence will not be disturbed absent a clear abuse of discretion." State v. Cyrus, 2011-1175, p. 20 (La. App. 4 Cir. 7/5/12), 97 So.3d 554, 565. Defendant's assignment of error number three is without merit.

Assignment of Error Number 4

In a fourth assignment of error, the defendant complains that he was denied effective assistance of counsel when his attorney failed to object to both prosecutors' closing arguments in which they reminded the jurors of the hearsay statements in Mr. Jujuan Holmes's testimony. Defendant argues that by repeating this testimony during closing arguments, the prosecutors suggested to the jury that defendant was the aggressor, while the victim was depicted as the innocent party.

Ineffective-assistance-of-counsel claims are more properly raised in an application for post-conviction relief where the district court can conduct a full evidentiary hearing on the matter, if one is warranted. See State v. Leger, 2005-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142 ; State v. Small, 2013-1334, p. 13 (La. App. 4 Cir. 8/27/14), 147 So.3d 1274, 1283. Nevertheless, where the record contains evidence sufficient to decide the issue, and it is raised on appeal by an assignment of error, the court may consider the issue in the interest of judicial economy. Leger, 2005-0011, p. 44, 936 So.2d at 142. We therefore address the issue here.

In Strickland v. Washington , the U.S. Supreme Court established a two-pronged test to attain relief in an ineffective-assistance-of-counsel claim as follows: 1) the defendant must show that counsel's performance was deficient; and 2) this deficiency prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). As to the first prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." 466 U.S. at 689, 104 S.Ct. 2052. "The object of an ineffectiveness claim is not to grade counsel's performance." Id. at 697. Thus, when reviewing a claim of ineffective assistance, an appellate court "does not sit to second-guess strategic and tactical choices made by trial counsel." State v. Myles , 389 So.2d 12, 31 (La. 1980) (on rehearing). Rather, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. "The benchmark for judging any claim of ineffectiveness is whether the attorney's conduct so undermined the proper function of the adversarial process that the trial cannot be considered to have produced a just result." Id. at 686.

As to the second prong, when determining whether counsel's deficiency prejudiced defendant, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Nevertheless, " 'even if testimony is inadmissible hearsay, if it is merely cumulative or corroborative of other testimony adduced at trial, then the admission of the hearsay is harmless.' " State v. Hamdalla , 2012-1413, p. 12 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 625 (quoting State v. McIntyre , 381 So.2d 408, 411 (La. 1980) ).

Defendant cites U.S. v. Rusmisel , 716 F.2d 301, 314 (5th Cir. 1983), which held that defense counsel's misconduct at trial (failure to object to the prosecutor's questions about several witnesses' personal drug use) infected the trial with unfairness, and the conviction resulted in a violation of due process. There, the Court of Appeals recognized that the "number, nature, and seriousness of the charges against the defendant, the strength of the prosecution's case, the strength and complexity of the defendant's possible defenses, and the severity of the sentence faced by the defendant are all part of the 'totality of circumstances in the entire record.' " Id. at 305 (quoting Washington v. Watkins , 655 F.2d 1346, 1357 (5th Cir. 1981) ).

We find Rumisel is distinguishable from the facts here. The Court in Rumisel explained how defense counsel's failure to object to the government's questioning of defense witnesses regarding their drug use resulted in a fundamentally unfair trial: "this court is hard pressed to accord the appellation of 'trial strategy' to defense attorney's manner of conducting the trial." Id. at 310.

In contrast to Rumisel , the defendant has failed to establish a claim for ineffective assistance of counsel based upon the failure to object to certain testimony referenced during closing arguments. As seen above, Mr. Johnson's statements to Mr. Holmes immediately before the shooting were not hearsay. And even if the reference to Mr. Johnson's statements were inadmissible hearsay, the reference during closing arguments was harmless error. See State v. Wille, 559 So.2d 1321, 1332 (La. 1990). The test for determining harmless error is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt, i.e., was the guilty verdict actually rendered unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). "Reversal is mandated only when there is a reasonable possibility that the evidence might have contributed to the verdict." State v. Skipper , 2011-1346, p. 10 (La. App. 4 Cir. 10/10/12), 101 So.3d 537, 544.

Again, the evidence offered at trial established that defendant was the shooter and that Mr. Johnson was unarmed. The recitation of the facts by each testifying witness was essentially the same and comported with other evidence to show that defendant entered his car, obtained a gun, exited his car, and shot at an unarmed victim several times. The victim was shot in the back, constituting additional evidence from which the jury may have concluded that the victim was fleeing rather than acting as the aggressor. Considering the totality of the circumstances, it does not appear that defendant suffered any prejudice from the State's closing-argument references to Mr. Johnson's statements made to Jujuan Holmes immediately before the shooting.

We find defendant has failed to establish a claim of ineffective assistance of counsel for counsel's failure to lodge objections during the State's closing arguments.

Assignment of Error Number 5

In a fifth assignment of error, defendant contends that the trial court erroneously charged the jury on the "Stand Your Ground" law as delineated in the justifiable homicide statute, La. R.S. 14:20. Defendant complains that the jury instruction improperly provided in part that "the possibility of retreat is a factor in determining whether or not a person reasonably believes that he or she was in danger of losing his or her life." In contrast, La. R.S. 14:20 (D) reads, in pertinent part, "[n]o finder of fact shall be permitted to consider the possibility of retreat."

In State v. Carter , 1997-2902, p. 34 (La. App. 4 Cir. 5/10/00), 762 So.2d 662, 683, this Court held:

La. C.Cr.P. art. 803 mandates that the trial court instruct the jury as to the law applicable to each case. La. C.Cr.P. art. 807 provides that the State and the defendant shall have the right before argument to submit to the court special written charges for the jury. A requested special charge "shall be given" if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. Id . ; State v. Craig, 95-2499, p. 7 (La. 5/20/97), 699 So.2d 865, 869, cert. denied, Craig v. Louisiana, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). Any special charge must be supported by the evidence. Id. However, such charge need not be given if it is included in the general charge or in another special charge. La. C.Cr.P. art. 807 ; Craig ; State v. Hawkins, 96-0766, p. 8 (La. 1/14/97), 688 So.2d 473, 480. Jury instructions must be considered as a whole. See State v. Thibodeaux, 98-1673, p. 17 (La. 9/8/99), 750 So.2d 916, 929.

The "[f]ailure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right." State v. Tate , 2001-1658, p. 20 (La. 5/20/03), 851 So.2d 921, 937.

Although defendant's brief does not provide the text of the instruction that he requested, the State's brief claims that the defendant requested the following jury instruction:

In Louisiana, the law does not require a person to retreat or consider retreating before using deadly force. Therefore, a person has no duty whatsoever to retreat and may stand his ground and meet force with force. Accordingly, you may not consider the possibility of retreat as a factor in determining whether or not a person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary.

The trial court denied the defendant's requested jury charge, and charged the jury as follows:

A homicide is justifiable if committed in self-defense by one who reasonably believes that he is in eminent danger of losing his life or receiving great bodily harm, and that the killing is necessary to save himself from that danger.
The danger need not have been real as long as the defendant reasonably believed that he was in actual danger. There are several factors that you should consider in determining whether the defendant has a reasonable belief that the killing was necessary to save himself from that danger:
1) The possibility of avoiding the necessity of taking human life by retreat, provided however, that a person who is not engaged in any unlawful activity, and is in a place where he has the right to be, has no duty to retreat before using deadly force to save himself from the danger of losing his life or receiving great bodily harm. He may stand his ground and meet force with force.
2) The excitement and confusion of the occasion.
3) The possibility of preventing the danger to himself by using force less than killing.
4) The defendant's knowledge of his assailant's dangerous character. And -
5) Any other factor which related to the reasonable belief that the person charged is in eminent danger of losing his life or receiving great bodily harm, and that the killing was necessary to save himself from that danger.
Thus, if you find that the defendant killed in self-defense, and that the defendant believed he was in danger of losing his life or receiving great bodily harm, and that the defendant believed the killing was necessary to save himself from the danger, and the defendant's beliefs were reasonable in light of the circumstances, then you must find the defendant not guilty.
A person who is not engaged in unlawful activity, and who is in a place he or she has a right to be, shall have no duty to retreat before using force or violence, and may stand his or her ground and meet force with force.
Mere (sic) finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.
If you find that the defendant has raised the defense that his conduct was justified, the State must prove that the defendant's conduct was not justified. Remember, the State bears the burden of proving the guilt of the defendant beyond a reasonable doubt.
A person who is the aggressor, or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith, and in such manner that his adversary knows, or should know, that he desires to withdraw and discontinue the conflict.
In determining whether the defendant was the aggressor, you must consider the nature of the confrontation, and whether the victim's actions were a reasonable response.
Thus, if you find that the defendant was the aggressor or that he brought on the difficulty, you must reject his claim of self-defense, unless you find that he withdrew from the conflict, and that his withdrawal was in good faith, and that he withdrew in a manner that put his adversary on notice that he wished to withdraw and discontinue the conflict.

The "Stand Your Ground" statute, La. R.S. 14:20, with regard to "retreat," provides in pertinent part:

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent unlawful entry.

Comparing the defendant's requested jury instruction to the wording of the Stand-Your-Ground Law, specifically La. R.S. 14:20 C and D, it is clear that the requested jury instruction is not the proper interpretation of the law. Defendant's proposed instruction suggests that there is no instance in which a defendant may not use deadly force, which does not follow La. R.S. 14:20.

The transcript of the jury charges shows that the district court initially charged the jury that "a person who is not engaged in any unlawful activity, and is in a place where he has the right to be, has no duty to retreat before using deadly force to save himself from the danger of losing his life or receiving great bodily harm. He may stand his ground and meet force with force." In fact, the court so advised the jury two more times during its jury instructions.

Moreover, there is no evidence of juror confusion in the record. During deliberations, the jury sent questions to the trial judge regarding the definitions of heat of blood; provocation; cooling-off period; justifiable homicide; second-degree murder; and responsive verdicts, but the jury did not ask for any clarification regarding the duty to retreat. The court's jury instructions adhere to the law and this assignment of error has no merit.

Assignment of Error Number 6

In his sixth and last assignment of error, defendant fails to cite any legal authority (other than Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ) for his contention that he was denied his right to a fair trial and due process when the State failed to call every witness that the State listed on its witness list. Defendant contends that the State knew that testimony from some of the listed witnesses would have been more favorable to the defendant, but he gives no specific examples or which witnesses would have been favorable to his case or further explains how he was prejudiced. Accordingly, without any specific facts or law upon which to evaluate Defendant's sixth assignment of error, we find this assignment of error has no merit.

CONCLUSION

For the foregoing reasons, the defendant's conviction is affirmed.

AFFIRMED


source: Caselaw Access Project

author: Judge Regina Bartholomew-Woods

license: Public Domain

text:
    Dana BOYD v. CCMSI and Harrahs New Orleans
    Dana Boyd v. CCMSI and Harrah's New Orleans Casino
    NO. 2018-CA-0587 NO. 2018-C-0658
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 26, 2018
    Pete Lewis, Sara D. Call, Barrett R. Stephens, LEWIS & CAPLAN, 3631 Canal Street, New Orleans, LA 70119 COUNSEL FOR CLAIMANT/APPELLANT
    John H. Musser, V, Emily Stevens Hardin, Tarryn E. Walsh, MURPHY ROGERS SLOSS GAMBEL & TOMPKINS, 701 Poydras Street, Suite 400, New Orleans, LA 70139 COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

This appeal arises from a claim for worker's compensation. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant, Dana Boyd ("Ms. Boyd"), was employed as a cook by Defendant-Appellee, Jazz Casino Company, LLC, d/b/a Harrah's New Orleans Casino ("Harrah's"). On September 20, 2016, Ms. Boyd, in the course and scope of her employment, fell while ascending stairs as she exited Harrah's. Ms. Boyd sustained injuries when she landed on her hands and knees and hit her right shin. Despite persisting pain, Ms. Boyd returned to a full day of work on September 21, 2016. After her two (2) scheduled off days, Ms. Boyd returned to work on September 23, 2016, to report her injuries and request medical treatment. On that same day, Ms. Boyd reported to Concentra Medical Center and complained of pain in her right knee. Dr. Marcus Pittman diagnosed her with a contusion of the right knee and a strained right knee and restricted her to light duty work. Based on that restriction, Ms. Boyd returned to work from September 24-26, 2016.

On September 26, 2016, Ms. Boyd presented to the West Jefferson Medical Center Emergency Room and reported increased pain and swelling; Ms. Boyd was diagnosed with an avulsion fracture to her right tibia, as well as sprains and strains. Ms. Boyd was referred to an orthopedist. On September 27 and 28, 2016, as a result of her pain, Ms. Boyd called out of work. After two (2) scheduled days off, general manager Chris Brown contacted Ms. Boyd, via text message, wherein she explained that she would be unable to return to work until she could be seen by an orthopedist. According to Ms. Boyd, from September 30, 2016 to October 11, 2016, she communicated, via text messages, with her supervisor, Chef Eric Porter, regarding her accident and resulting injuries, doctor's appointments, and inability to work. According to Ms. Boyd, it was not until October 3, 2016, that her completed paperwork was submitted to a Harrah's human resources representative. On October 6, 2016, the human resources representative contacted Dr. Wesley Clark ("Dr. Clark"), an orthopedist. On the next day, October 7, 2016, Dr. Clark evaluated Ms. Boyd; she complained of pain in her right leg and hip. Dr. Clark released Ms. Boyd to work with the restriction of modified duty. On the following day, Ms. Boyd contacted her supervisor, via text message, to notify him that she would return to work. On October 11, 2016, Harrah's terminated Ms. Boyd for job abandonment. Harrah's contends that it sent Ms. Boyd a letter advising her of the termination, via certified mail; however, Ms. Boyd contends that she never received the letter. Harrah's further avers that had Ms. Boyd produced a medical excuse regarding the days that she missed work, Harrah's would have reinstated her employment. To date, Ms. Boyd has not produced any such documentation.

In January 2017, Ms. Boyd was released to work without restriction. On February 5, 2017, Ms. Boyd secured new employment with the Hyatt Hotel. Ms. Boyd continued to receive medical treatment and in March 2017, Ms. Boyd reported that in addition to continued pain, she was experiencing pain in her right hip, right leg, and lower back. Ms. Boyd was advised that physical therapy had been authorized for solely her right knee. According to Ms. Boyd, she was forced to resign from the Hyatt Hotel on July 26, 2017, because she was still experiencing pain as a result of the injuries that she sustained due to the September 20, 2016 accident.

Ms. Boyd avers that she was temporarily totally disabled from September 27, 2016 to February 5, 2017, and again on July 26, 2017, through the following month. Ms. Boyd also contends that Harrah's refused to authorize medical treatment for all of her injuries. Ms. Boyd sought attorney's fees and penalties because she alleges that Harrah's refused to authorize treatment and pay indemnity benefits.

This matter was heard before the Office of Workers' Compensation ("OWC") on September 27, 2017. On December 15, 2017, the OWC rendered its written judgment and found, in pertinent part, that on September 20, 2016, Ms. Boyd, while in the course and scope of her employment as a cook at Harrah's, sustained compensable injuries to her right knee, shin, ankle, and arm. OWC further found that Harrah's did not fail to accommodate Ms. Boyd's work restrictions and that she was not entitled to expand her work-related injuries and medical treatment to include new body parts, specifically, her lower back, right hip, and right leg. Accordingly, OWC found that Ms. Boyd was not entitled to indemnity benefits, either TTD [temporary total disability] and/or SEB [supplemental earnings benefits]. The OWC further declined to award attorney's fees and/or penalties. It is from this judgment that Ms. Boyd now appeals.

On February 2, 2018, the OWC Clerk's Office issued a Notice of Appeal Charges in the amount of $2,043.10. Thereafter, Ms. Boyd's counsel was unable to reach her regarding the costs of the appeal and requested a waiver for payment of advanced costs. On March 6, 2018, Ms. Boyd's counsel filed an unopposed ex parte motion for extension of time for payment of appeal costs. On March 8, 2018, OWC extended the deadline to March 29, 2018, for Ms. Boyd to remit payment. On March 29, 2018, Ms. Boyd's counsel was still unable to contact her. On April 16, 2018, Harrah's filed a motion to dismiss the appeal on grounds of abandonment. On May 7, 2018, OWC held a hearing, and ordered Ms. Boyd to pay, in full, the estimated costs of the appeal on or before May 17, 2018. On May 15, 2018, Ms. Boyd filed an ex parte motion to file an in forma pauperis affidavit, pursuant to La. C.C.P. art. 5183(A). The OWC granted the motion and permitted Ms. Boyd to proceed without paying the costs, in advance, or as they accrue, or furnishing security thereof; to which Harrah's opposed. On June 6, 2018, Harrah's filed a second motion to dismiss appeal, which the OWC denied on July 17, 2018. On July 24, 2018, Harrah's sought a writ of supervisory review from this Court. On November 7, 2018, this Court issued an Order consolidating the writ with the above-captioned appeal.

DISCUSSION

On appeal, Ms. Boyd raises the following assignments of error:

1. Whether the OWC erred in finding that Harrah's did not fail to accommodate Ms. Boyd's light duty work restrictions;
2. Whether the OWC erred in finding that Ms. Boyd did not sustain injuries to her lower back, right hip, and right lower extremity in connection with her accident on September 20, 2016;
3. Whether the OWC erred in finding that Harrah's properly declined to authorize medical treatment for Ms. Boyd's lower back, right hip, and right lower extremity;
4. Whether the OWC erred in finding that Ms. Boyd was not entitled to either TTD or SEB; and
5. Whether the OWC erred in not awarding attorney's fees and penalties against Harrah's for not paying Ms. Boyd TTD and SEB, and not authorizing medical treatment.

Standard of Review

This Court is mindful that the Louisiana Supreme Court has stated that "the provisions of the worker's compensation law must be given a liberal interpretation ... to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co. , 545 So.2d 1005, 1006-07 (La. 1989). Further, this Court has reasoned that

[i]n workers' compensation cases, "it is well-settled that the appropriate standard of appellate review is the manifest error or clearly wrong standard." Blair v. Wal-Mart Stores, Inc. , [20] 01-2211, p.7 (La. App. 4 Cir. 5/15/02), 818 So.2d 1042, 1047. Under that standard, "[t]he trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error." Id. (quoting Bruno v. Harbert Int'l, Inc ., 593 So.2d 357, 361 (La. 1992) ). However, "[w]hen legal error interdicts the fact-finding process in a workers['] compensation proceeding, the de novo , rather than manifest error, standard of review applies." Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp. , [20] 11-0179, p. 3 (La. App. 4 Cir. 6/29/11), 70 So.3d 988, 990 (citing MacFarlane v. Schneider Nat'l Bulk Carriers, Inc. , [20] 07-1386, p. 3 (La. App. 4 Cir. 4/30/08), 984 So.2d 185, 188 ). "Likewise, interpretation of statutes pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct." Id.

Jackson v. Family Dollar Stores of Louisiana Inc. , 2017-0712, pp. 5-6 (La. App. 4 Cir. 10/24/18), 258 So.3d 165, 2018 WL 5284406. Here, Ms. Boyd's assignments of error address factual determinations, rather than legal interpretations. Thus, the manifest error standard of review is the appropriate standard in this matter.

Assignment of Error Number 1

In her first assignment of error, Ms. Boyd alleges that the OWC manifestly erred when it found that Harrah's did not fail to accommodate her light duty work restrictions. Ms. Boyd contends that she was restricted to light duty work and although Harrah's permitted her to sit at a kitchen stool to perform her duties, if the kitchen became busy, she was forced to move about the kitchen, despite being in pain. The OWC acknowledged that this modification was "woefully inadequate," but found that it was nonetheless an accommodation. The OWC held that Ms. Boyd failed to prove that Harrah's failed to accommodate her work restrictions, because she did not attempt to report the inadequate accommodations to either Harrah's or her treating physician. Thus, based on the factual conclusions and determinations reached by the OWC, we do not find that it abused its great and broad discretion in not concluding that Harrah's failed to accommodate Ms. Boyd's work restrictions. Thus, we find that Ms. Boyd's assignment of error is without merit.

Assignments of Error Numbers 2 and 3

Because Ms. Boyd's assignments of error numbers 2 and 3 both involve her lower back, right hip, and right lower extremity - specifically, whether she sustained injuries to these body parts in her September 20, 2016 accident, and whether Harrah's properly denied authorization for medical treatment to these body parts - these issues will be addressed together.

Ms. Boyd avers that during her initial visit to Concentra Medical Center, she complained of pain in her right leg, right knee, and lower back. She further states that during her initial visit with Dr. Clark, she complained of pain throughout her right lower extremity and right hip. Ms. Boyd also testified that she complained of pain in her lower back, right hip, and lower right extremity during physical therapy.

Conversely, Harrah's asserts that during her visit with Dr. Clark, Ms. Boyd completed a pain diagram and indicated pain in her right leg, but not her hips or back. Specifically, Ms. Boyd indicated that she experienced pain above and below her right knee. Further, Dr. Clark examined Ms. Boyd, but did not find tenderness or limited range of motion with her back or hips. Harrah's contends that Ms. Boyd first complained of hip pain on November 8, 2016, to her physical therapist. Harrah's further contends that, for the first time, on December 26, 2016, Ms. Boyd presented to the West Jefferson Medical Center Emergency Room and reported muscle spasms in her left lower back, pain in her lower left hip, left lower back, and abdomen; Ms. Boyd reported that she began experiencing this pain one and a half (1.5) weeks prior.

The OWC concluded that it did not find complaints about the lower back, right hip, and right lower extremity in Ms. Boyd's medical records prior to her March 6, 2017 request to expand medical treatment to those areas. This Court inspected the transcription from Ms. Boyd's visit to Concentra Medical Center and takes note that no body parts, other than the right knee, are mentioned. Further, this Court examined the incident report that Ms. Boyd completed with Harrah's, and observes that this report states that she fell on her right knee and right shin. Both her documents from Dr. Clark and workers' compensation claim mention pain in the right knee, and nowhere else. Based on the aforementioned, we find that the OWC did not abuse its discretion when it concluded that Ms. Boyd's lower back, right hip and right lower extremity pains/complaints do not relate to the accident that occurred on September 20, 2016. It weighed the evidence presented to it, both subjective testimony, as well as objective exhibits and came to a reasonable conclusion. For these reasons, we find no merit in these two assignments of error.

Assignment of Error Number 4

In her fourth assignment of error, Ms. Boyd argues that Harrah's deprived her of TTD benefits, did not facilitate her return to work, and prevented her from returning to work; Ms. Boyd emphasizes the "two [2] to three [3] weeks during which she was waiting to see an orthopedist." While Ms. Boyd acknowledges that she was released to return to work with light duty restrictions, she asserts that she "believed " she could not return to work until she was seen by an orthopedist.

Harrah's asserts that no doctor determined that Ms. Boyd was totally disabled, rather she was released to return to work with the restriction of modified duty. Further, Harrah's argues that Ms. Boyd failed to produce any evidence of her total disability, and she failed to submit a 1020 form to show that she did not earn any wages.

The OWC reasoned that Ms. Boyd was released to return to work with the restriction of modified duty. The OWC also stated that Ms. Boyd testified that no doctor ever told her that she was temporarily disabled or supplied an "off-work slip indicating that she should not return to work." The OWC concluded that no medical evidence supported Ms. Boyd's argument that she was temporarily totally disabled.

This Court has explained that TTD benefits are provided under Title 23 of the Louisiana Revised Statutes, the Louisiana Workers' Compensation Act. Under La. R.S. 23:1221(1)(a), an injured worker entitled to TTD benefits is paid compensation benefits in the amount of "sixty-six and two-thirds percent of wages during the period of [temporary total] disability." Bay v. Jefferson Par.Pub. Sch. , 2016-0890, p. 6 (La. App. 4 Cir. 4/26/17), 218 So.3d 207, 211. This Court has further stated that "[t]he workers' compensation statute provides that an employee who suffers a workplace injury shall be awarded TTD benefits only when the employee proves by clear and convincing evidence that the employee 'is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment.' " La. R.S. 23:1221(1)(C). This Court only requires that an employee seeking TTD benefits introduce "objective medical evidence" to sustain his or her claim by clear and convincing evidence. Marti v. City of New Orleans , 2012-1514, p. 30 (La. App. 4 Cir. 4/10/13), 115 So.3d 541, 560. In determining whether an employee has met her burden of proving by clear and convincing evidence her entitlement to TTD benefits, the OWC must weigh both medical and lay evidence. Id. , 2012-1514, pp. 30-31, 115 So.3d at 560. Jackson, 2017-0712, p. 10, 258 So. 3d. at 174-75. Presently, based on both the medical and lay evidence, we agree with the OWC and find that the OWC did not commit manifest error when it found that Ms. Boyd was not entitled to TTD benefits. Thus, this assignment of error is without merit.

Assignment of Error Number 5

In her final assignment of error, Ms. Boyd argues that the OWC committed error when it declined to award her penalties and attorney's fees. Ms. Boyd asserts that penalties and attorney's fees are warranted, because Harrah's was unreasonable in denying authorization for medical treatment to body parts other than her right knee. Ms. Boyd further asserts that Harrah's did not facilitate and even prevented her from returning to work. Contrarily, Harrah's asserts that because they successfully controverted Ms. Boyd's claims, the OWC did not err in denying Ms. Boyd's request for penalties and attorney's fees.

Penalties and attorney's fees are awarded pursuant to La. R.S. 23:1201(F). The Louisiana Supreme Court explained that the award of "penalties and attorney fees in workers' compensation cases are essentially penal in nature. The purpose of the imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers." Authement v. Shappert Eng'g , 2002-1631, p. 11 (La. 2/25/03), 840 So.2d 1181, 1188. Further, La. R.S. 23:1201(F)(2) provides that the award of penalties and attorney's fees "shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control." The Louisiana Supreme Court explained that "in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits." Brown v. Texas-LA Cartage, Inc. , 1998-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. In Brown , the Louisiana Supreme Court looked to Woods v. Ryan Chevrolet, Inc., 30,206, p. 9 (La. App. 2 Cir. 2/25/98), 709 So.2d 251, 257, which provided that "[t]he employee's right to such benefits will be deemed 'reasonably controverted' if the employer or insurer had a reasonable basis for believing that medical expenses and indemnity benefits were not due the employee.... Reasonably controverting a claim means that the payor has factual or medical information of such a nature that it reasonably counters that provided by the claimant." Id. Here, Ms. Boyd failed to prove that she was entitled to indemnity benefits, and the OWC ruled against her. Therefore, the OWC had a reasonable basis for denying an award of penalties and attorney's fees in her favor. Thus, we find this assignment of error to be without merit.

Consolidated Writ 2018-C-0658

While the above-captioned appeal was pending, Harrah's sought supervisory review of the OWC's July 17, 2018 judgment denying Harrah's second motion to dismiss an appeal. After filing her appeal with this Court, Ms. Boyd failed to timely pay costs, and Harrah's filed its first motion to dismiss appeal as abandoned. The OWC granted Ms. Boyd an additional ten (10) days to pay the costs on or before May 17, 2018 and further ordered that failure to pay the costs would result in dismissal on the ground of abandonment. On May 15, 2018, Ms. Boyd filed a motion to be granted in forma pauperis status pursuant to La. C.C.P. art. 1581(A); the OWC granted Ms. Boyd's motion, and Harrah's filed an opposition. Thereafter, Harrah's filed its second motion to dismiss appeal. Based on the fact that the OWC granted Ms. Boyd in forma pauperis status, we find that the writ application filed by Harrah's seeking dismissal of this appeal should be denied.

DECREE

For the aforementioned reasons, we affirm the OWC's judgment. Further, we deny Harrah's writ seeking supervisory review of the OWC's July 17, 2018 denial of its second motion to dismiss the appeal.

AFFIRMED; WRIT DENIED

      Ms. Boyd worked in Manning's Restaurant which is located inside Harrah's.

      Concentra Medical Center is Harrah's occupational medical clinic.

      Ms. Boyd complained that the kitchen got busy and she was forced to move about and retrieve items. Harrah's contends that Ms. Boyd made no complaints of her light duty work restriction being exceeded.

      Ms. Boyd contends that she worked her scheduled shift on this day. However, Harrah's avers that she reported to the hospital rather than to work.

      Harrah's contends that there is no record of Ms. Boyd calling out of work on those days.

      Both Ms. Boyd and Harrah's agree that she was scheduled off on September 29-30, 2016.

      Harrah's contends that although Ms. Boyd was scheduled to work October 1 through 4, 2016, she neither reported to work, nor called out to inform anyone that she would be absent.

      According to Harrah's, Ms. Boyd made a formal request for treatment to her right hip and lower back on March 6, 2017.

      On September 20, 2017, Ms. Boyd secured employment with the Sheraton Hotel.

      At trial, the parties made the following stipulations, which were recited in the OWC's written judgment:
      1. Claimant, Dana Boyd, was employed by Harrah's as a cook on or about September 20, 2016, the date of the accident;
      2. Claimant's, Dana Boyd's, average weekly wage is $533.32 and the corresponding compensation rate is $355.56;
      3. Claimant, Dana Boyd, worked full duty on September 21, 2016;
      4. Claimant's, Dana Boyd's, scheduled off-work days were September 22, 2016, and September 23, 2016;
      5. Claimant's, Dana Boyd's, accident was reported on September 23, 2016;
      6. Claimant, Dana Boyd, was placed on restricted work duty on September 23, 2016 by Concentra Medical Center; and
      7. Claimant, Dana Boyd, returned to Harrah's and worked restricted work duty at the same wages on September 24, 2016, September 25, 2016, and September 26, 2016.

      This Court explained that
      [t]he purpose of SEBs is to provide compensation to an injured employee for [her] lost wage-earning capacity." Bastoe v. Burger King Distribution Services, 96-0021 at p. 3 (La. App. 4 Cir. 03/19/97), 691 So.2d at 276. A workers' compensation claimant is entitled to SEBs if, as a result of a work-related injury, she is unable to earn at least 90 percent of her pre-injury wages. Id. ; La. R.S. 23:1221(3)(a).
      Doane v. Omni Royal Orleans Hotel , 2016-0144, p.p. 5-6 (La. App. 4 Cir. 10/26/16), 204 So.3d 615, 618-19. On appeal, Ms. Boyd acknowledges that the OWC ruled that she was not entitled to SEB and that it would be a "fruitless endeavor and waste of time" to raise this issue on appeal after being denied all indemnity benefits on November 7, 2016. In accordance with the Uniform Rules, Courts of Appeal, Rule 2-12.4, issues that are not briefed on appeal are deemed abandoned. Because Ms. Boyd has not briefed her entitlement to SEB, we deem it as abandoned and will not address said issue. See also, Murungi v. Touro Infirmary, 2012-0213, p. 3 n. 2 (La. App. 4 Cir. 03/01/2013), 110 So.3d 1250, 1252.

      On December 19, 2017, Ms. Boyd timely filed a petition for devolutive appeal, which the OWC granted on January 11, 2018.

      La. C.C.P. art. 5183(A) provides:
      A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
      (1) His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means, accompanied by any supporting documentation; and
      (2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
      (3) A recommendation from the clerk of court's office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of the court.

      2018-C-0658