author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. James Dewitt MCINTOSH, II
    NO. 2018 KA 0768
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Warren LeDoux Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, LA, Attorneys for Appellee, State of Louisiana
    Bruce Gerard Whittaker, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant-Appellant, James Dewitt McIntosh, II
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Defendant, James McIntosh, was charged by bill of information with two counts of distribution of heroin, a violation of La. R.S. 40:966 (counts one and two), and two counts of distribution of marijuana, a violation of La. R.S. 40:966 (counts three and four). He pled not guilty. Defendant filed motions to suppress and exclude testimony, which were denied after hearings. After a trial by jury, the defendant was found guilty as charged. The trial court imposed concurrent terms of twenty-five, twenty-five, five, and five years imprisonment at hard labor. Following the State's filing of a multiple offender bill of information on counts one and two, defendant and the State stipulated to his being a second-felony offender on those counts, and the trial court vacated defendant's sentences on counts one and two, and resentenced defendant to concurrent terms of thirty years imprisonment at hard labor. The defendant now appeals.

STATEMENT OF FACTS

In late 2015, Louisiana State Police ("LSP") Trooper John Heath Miller ("Trp. Miller") received a tip through Crime Stoppers regarding narcotics sales occurring in St. Tammany Parish. After confirming the tip with some of his confidential sources, he began an investigation into defendant. Trp. Miller brought in an undercover officer, LSP Trooper Sarah Gilberti-Abbott ("Trp. Gilberti"), to coordinate with a confidential source to provide an introduction to defendant and negotiate a $ 140.00 narcotics purchase. The first meeting was arranged to take place at a Rouses's parking lot in Covington on November 19, 2015, and was to be for the purchase of heroin and marijuana. With other law enforcement officers surveilling the location, defendant and Trp. Gilberti parked side by side. The confidential source, who was with Trp. Gilberti, got out of the vehicle and conducted a hand-to-hand transaction for marijuana and heroin within the view of Trp. Gilberti. The narcotics were recovered by other troopers immediately thereafter and tested at the State Police laboratory to confirm their authenticity. Later fingerprint analysis determined defendant was the source of a fingerprint on a bag of marijuana obtained during the November 19, 2015 drug buy.

On December 1, 2015, Trp. Gilberti and the confidential source again arranged to meet defendant in order to purchase heroin and marijuana at the Sonic Drive-in in Mandeville where defendant was employed. This portion of the investigation was partially recorded, and the video recording was played for the jury. While waiting for a third party to obtain the drugs from another location for defendant to sell to Trp. Gilberti, defendant and the confidential source spoke about text messages that they had sent to each other earlier in the day. The transaction was taking far longer than anticipated, and the confidential source was complaining about how she thought it had been set up well in advance through texts between them earlier in the day. Shortly thereafter the playback stopped due to a dead battery on the recording device. The third party returned in defendant's car, and defendant returned to Trp. Gilberti's vehicle. Defendant then conducted a hand-to-hand transaction, taking money from Trp. Gilberti and handing her heroin and marijuana in exchange. The narcotics were recovered by the investigating troopers soon after and were tested to confirm their authenticity.

ASSIGNMENT OF ERROR # 1: OTHER CRIMES EVIDENCE

In assignment of error number one, defendant contends that the State improperly introduced other crimes evidence when it purposefully sought to highlight the fact that defendant was already incarcerated for an unrelated offense at the time the arrest warrant for the instant offenses was executed. Defendant unsuccessfully requested a mistrial after the alleged prejudicial comments. The State asserts that by failing to object to the initial mention of defendant being arrested for another offense, defendant effectively waived the claim on appeal. Moreover, the State argues that trial counsel "opened the door" during cross-examination.

A mistrial under the provisions of La. Code Crim. P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of a witness who is not a court official make it impossible for a defendant to obtain a fair trial. State v. Kitts, 2017-0777 (La. App. 1st Cir. 5/10/18), 250 So.3d 939, 968. However, an impermissible reference to another crime deliberately elicited of a witness by the prosecutor is imputable to the State and mandates a mistrial under La. Code Crim. P. art. 770. State v. Lawson, 2018-0382 (La. App. 1st Cir. 11/8/18), 2018 WL 5876815 *11 (unpublished). Because a mistrial is a drastic remedy that should be granted only when a defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial, "mere possibility of prejudice is not sufficient." State v. Caminita, 2016-0121 (La. App. 1st Cir. 9/16/16), 203 So.3d 1100, 1106, writ denied, 2016-2045 (La. 9/6/17), 224 So.3d 988. A reviewing court should not reverse a defendant's conviction and sentence unless the error has affected the substantial rights of the accused. See La. Code Crim. P. art. 921. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal without finding an abuse of that discretion. State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 933, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Pierre, 2012-0125 (La. App. 1st Cir. 9/21/12), 111 So.3d 64, 68, writ denied, 2012-2227 (La. 4/1/13), 110 So.3d 139 : see also La. Code Crim. P. art. 770(2). However, when counsel "opens the door" to the complained-of subject matter, "the other party can then explore the subject fully." State v. Hunt, 310 So.2d 563, 568 (La. 1975). Prior notice of intent to disclose other bad acts is not required when the door has been so opened. State v. Marcotte, 2001-1586 (La. App. 3rd Cir. 5/15/02), 817 So.2d 1245, 1253.

During cross-examination, defense counsel asked Trp. Miller if he had planned on purchasing any more drugs from defendant, to which Miller responded that he had. When asked if he made any more purchases, Trp. Miller responded that he could not make any more purchases because defendant was incarcerated. Defense counsel made no objection. Later, while on redirect examination, Trp. Miller, in response to the State's questions, revealed that the narcotics investigation stopped because defendant was arrested for something else and was incarcerated in the St. Tammany Parish Jail. At that point, defense counsel objected and moved for mistrial. The trial court found defense counsel had "opened the door" by asking why the investigation had stopped, thereby revealing defendant's unrelated incarceration. The trial court did note, however, that the door was "not opened to every other witness."

Here, it is uncontested that defense counsel asked Trp. Miller why no more undercover narcotics purchases were made in the instant investigation. Thus, Trp. Miller's original answer was not elicited by the State. The subsequent State questioning fell within the ambit of redirect examination to clarify, and respond to, points made during cross-examination by defense counsel.

Moreover, even had defense counsel not "opened the door" to further testimony regarding defendant's custody status at the time of his arrest on the instant charges, that reference alone was not sufficient to warrant a mistrial. See State v. Stevens, 2013-1162 (La. App. 3rd Cir. 6/18/14), 140 So.3d 1267, 1282 writ denied, 2014-1530 (La. 12/8/14), 156 So.3d 42 ; cf. State v. Hayes, 2010-685 (La. App. 5th Cir. 5/24/11), 70 So.3d 27, 40, writ denied, 2011-1370 (La. 2/3/12), 79 So.3d 1024.

The trial court in the instant case did not abuse its considerable discretion in finding that defendant opened the door to Trp. Miller's testimony about why the investigation ended, giving the State an opportunity to prompt more testimony regarding the procedural details of why the investigation ended when it did. This claim is without merit.

ASSIGNMENT OF ERROR # 2: CONFRONTATION ERROR

In his second assignment of error, defendant contends that the trial court erred in denying his pre-trial motions attempting to exclude evidence consisting of the confidential source reading on the surveillance recording text messages alleged to have come from defendant. With the confidential source unavailable at trial to cross-examine, defendant asserts his right to confrontation of witnesses was abridged by the trial court's ruling at the pre-trial hearing. At the hearing, the State argued that the statements by the confidential source were not made in anticipation of using them at a subsequent prosecution, and alternatively that they were being introduced for context, not for their actual content, and were consequently not hearsay. The trial court ultimately found the statements were neither testimonial, nor hearsay, but instead the confidential source's "words under surveillance."

The Sixth and Fourteenth Amendments to the United States Constitution and Article 1, § 16 of the Louisiana Constitution guarantee a criminal defendant the meaningful opportunity to present a complete defense. State v. Dressner, 2008-1366 (La. 7/6/10), 45 So.3d 127, 137, cert. denied, 562 U.S. 1271, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011) ; State v. Stokes, 2014-1562 (La. App. 1st Cir. 6/17/15), 175 So.3d 419, 423. The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." Out-of-court statements that are testimonial are barred under the Confrontation Clause, unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witnesses. Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004) ; State v. Tsolainos, 2007-2443 (La. App. 1st Cir. 10/10/08), 997 So.2d 46, 48 (per curiam), writ denied, 2008-2653 (La. 10/9/09), 19 So.3d 6. The Crawford court drew a distinction between testimonial and nontestimonial statements and confined its holding to testimonial evidence. Crawford, 541 U.S. at 61-68, 124 S.Ct. at 1370-74. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006) ; State v. Hayes, 2016-0441 (La. App. 1st Cir. 9/19/16), 204 So.3d 201, 208, writ denied sub nom., State v. Hazes, 2016-1886 (La. 9/6/17), 224 So.3d 979.

As an initial matter, it is uncontested that the confidential source was unavailable at trial, and in fact remained unidentified. Thus, the dispositive question becomes whether her statements were testimonial or nontestimonial. Here, there is nothing in the record suggesting whether or not the confidential source knew she was being recorded. That being the case, giving defendant the benefit of assuming the confidential informant was so aware, the statements she was making to Trp. Gilberti could reasonably be presumed to constitute evidence that would be used against defendant in a later prosecution. In addition to addressing operational security concerns, the recording was intended by the LSP to serve that purpose, as demonstrated by its very existence. Moreover, the recording was used by the State at trial in its case-in-chief. Notwithstanding the fact defendant arguably confirmed at least some of the text messages came from him, because the messages themselves were not presented at trial, their introduction by the State through the confidential source rendered them testimonial out-of-court statements inadmissible under the Confrontation Clause. Cf. State v. Lang, 2013-0021 (La. App. 5th Cir. 10/9/13), 128 So.3d 330, writ denied, 2013-2614 (La. 5/2/14), 138 So.3d 1244.

Therefore, the next consideration is what impact the erroneous admission of these statements had on the result of defendant's trial. Mistaken application of the rule of Crawford is subject to harmless-error analysis. See State v. Cunningham, 2004-2200 (La. 6/13/05), 903 So.2d 1110, 1119 ; State v. Queen, 2009-1373 (La. App. 1st Cir. 2/12/10), 2010 WL 532337 *2 (unpublished), writ denied, 2010-0625 (La. 10/29/10), 48 So.3d 1098. Here, the Crawford confrontation violation was harmless. During the November 19, 2015 transaction, the confidential informant gave defendant the money in exchange for drugs received immediately in front of Trp. Gilberti. Trp. Gilberti personally took the drugs from defendant's hand after giving him money during the December 1, 2015 transaction. Trp. Gilberti made an in-court identification of defendant as the person who sold her the drugs leading to the instant four counts. Many of the statements were relative to the fact that the deal had allegedly been set up long before but was frustrating the buyers when it was so delayed in its completion. With the confidential source's statements aside, there was more than adequate evidence for a jury to find beyond a reasonable doubt that defendant committed all four counts of distribution of narcotics. Thus, the guilty verdict rendered was surely unattributable to the error. See La. Code Crim. P. art. 921 ; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) ; State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Troquille, 2007-1486 (La. App. 1st Cir. 6/6/08), 2008 WL 2332234 *5 (unpublished), writ denied. 2008-2186 (La. 4/24/09), 7 So.3d 1197. This claim is without merit.

ASSIGNMENT OF ERROR # 3: IMPROPER CLOSING ARGUMENT

Defendant argues in his final assignment of error that the trial court erred in not granting his Motion for New Trial when the State made an improper closing argument. The State counters the statement made during closing argument was not a "personal attack" as characterized by defendant, but instead a permissible characterization of defense counsel's role.

During the State's closing argument, after discussing defense counsel's arguments made over the course of the trial, the State concluded, "[s]peaking of jobs, I think we all know what Mr. Champagne's job is. And that's to try to walk his client out of the door." Defense counsel objected and, according to appellate counsel, later based his vaguely worded Motion for New Trial on, inter alia, the utterance. Defendant's entire argument on the matter is that the "improper argument of the [S]tate should have resulted in a mistrial."

Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. Further, the State's rebuttal shall be confined to answering the argument of the defendant. See La. Code Crim. P. art. 774. Prosecutors are allowed wide latitude in choosing closing argument tactics. See State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 614, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007) ; State v. Patton, 2010-1841 (La. App. 1st Cir. 6/10/11), 68 So.3d 1209, 1221. The trial judge has broad discretion in controlling the scope of closing argument. State v. Mitchell, 2016-0834 (La. App. 1st Cir. 9/21/17), 231 So.3d 710, 719, writ denied, 2017-1890 (La. 8/31/18), 251 So.3d 410. Even if the prosecutor exceeds these bounds, a reviewing court will not reverse a conviction if not "thoroughly convinced" that the argument influenced the jury and contributed to the verdict. See State v. Prestridge, 399 So.2d 564, 579 (La. 1981). Credit must be given to the "good sense and fair-mindedness of the jurors who heard the evidence" at trial. State v. Mills, 2013-0573 (La. App. 1st Cir. 8/27/14), 153 So.3d 481, 496, writ denied, 2014-2027 (La. 5/22/15), 170 So.3d 982, writ denied sub nom., State ex rel. Mills v. State, 2014-2269 (La. 9/18/15), 178 So.3d 139.

Defendant provides nothing to support a finding of error in the exercise of the trial court's discretion. While inappropriate, the State's argument was directed at defense counsel's trial strategy and did little to prejudice defendant given the evidence properly admitted at trial. This claim is without merit.

PATENT ERROR

Pursuant to La. Code Crim. P. art. 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found one patent sentencing error.

In State v. Augustine, 555 So.2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court indicated that a failure to observe the twenty-four hour delay provided in La. Code Crim. P. art. 873 will be considered harmless error where a defendant could not show that he suffered prejudice from the violation. See State v. White, 404 So.2d 1202, 1204-05 (La. 1981). In Augustine, the Supreme Court concluded that prejudice would not be found if a defendant had not challenged the sentence imposed and the violation of the twenty-four hour delay was merely noted on patent error review. Augustine, 555 So.2d at 1334. In the instant case, defendant has not challenged his sentence on appeal. Under these circumstances, this patent sentencing error is harmless. Accordingly, any error in the trial court's failure to observe the twenty-four hour delay is harmless beyond a reasonable doubt and does not require a remand for resentencing. Cf. State v. Magee, 2017-1217 (La. App. 1st Cir. 2/27/18), 243 So.3d 151, 165.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCES AFFIRMED.

      During the recording of the Sonic Drive-in transaction, Trp. Gilberti can be heard telling the confidential source that they were "still rolling," likely a reference to the contemporaneous recording.


source: Caselaw Access Project

author: McCLENDON, J.

license: Public Domain

text:
    STATE of Louisiana v. Scott Alan BARR
    2018 KA 1111
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Warren L. Montgomery, District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Covington, Louisiana, Counsel for Appellee, State of Louisiana
    Mary C. Hanes, New Orleans, Louisiana, Counsel for Defendant/Appellant, Scott Alan Barr
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

Defendant, Scott Alan Barr, was charged by bill of information on counts one and two with sexual battery of a victim under the age of thirteen, violations of LSA-R.S. 14:43.1C(2), and he entered a plea of not guilty. After a trial by jury, defendant was found guilty of the responsive offense of sexual battery, as to each count. Defendant was sentenced on each count to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served concurrently. Defendant now appeals, assigning error to the trial court's denial of his motion for a mistrial. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On July 22, 2016, the St. Tammany Parish Sheriff's Office received a report of sexual abuse of a child, C.S. (the victim), and deputies responded to Ochsner Medical Center in Slidell. The case was assigned to Detective Carli Messina. Previous thereto, in 2014, when the victim was three years old, she and her mother, E.B., moved in with E.B.'s mother and stepfather. At the time, defendant, E.B.'s stepbrother, also lived there. According to E.B.'s trial testimony, her mother would routinely babysit the victim while E.B. was at work. E.B. further testified that the victim had a close relationship with defendant, whom she called "Uncle Ottie," "Uncle Scottie," and/or "Uncle Scott." E.B. stated that the victim would sometimes watch television and/or eat snacks in defendant's room and confirmed that they would be in the room alone at times.

Around October of 2015, E.B. observed the victim as she touched herself in an unusual manner. Specifically, E.B. testified that the victim began "tugging on her nonnie" while they were in E.B.'s bedroom. As defendant walked past E.B.'s bedroom, the victim stated, "Uncle Ottie, come play with my nonnie again." In explaining why she did not contact the police at the time, E.B. stated that the victim was very young and that she was not sure if the victim knew what she was saying. However, the victim's statement did influence E.B. to move to a different address in order to get the victim out of the residence with defendant. On July 21, 2016, when the victim had just turned five years old, the victim told E.B. that her nonnie was hurting. When E.B. questioned her in regard to the pain, the victim stated that she had been rubbing her nonnie too hard. E.B. told the victim that she was not supposed to touch her nonnie, and at that point, the victim asked, "[I]f I can't do it, how come my Uncle Ottie can[?]" She added, "Uncle Ottie touches my nonnie." The next morning, E.B. questioned the victim and she confirmed that defendant was the only person who ever touched her nonnie. E.B. contacted the victim's pediatrician, who instructed her to take the victim to Ochsner Medical Center.

On July 27, 2016, the victim was interviewed at the CAC Hope House. During the interview, the victim stated that defendant, "Uncle Scott," pulled down her pants and touched the inside of her "nonnie" with his finger. When asked to describe how that made her feel, the victim stated that it felt like a bear was biting her nonnie, adding that it hurt. The victim further stated that defendant pulled down his clothes and made her touch "his," adding that when she did so "it really gets redder [sic]." She stated that defendant made her touch it with her hand only. The victim further stated that this happened a lot of times and that each time, it occurred in defendant's bedroom. The victim was six years old when the trial took place. When asked if she remembered telling her parents about "a bad touch," the victim stated, "That was a really long time ago." When questioned as to who she previously indicated gave her a "bad touch," the victim gave responses such as "I can't remember," and "I don't know." The victim confirmed that the topic made her feel "scared," and responded "Yes," when asked, "Do you think that man's scary?"

FBI Special Agent Todd Schliem testified that he interviewed defendant after the St. Tammany Parish District Attorney's Office informed him that defendant requested to be interviewed. After Agent Todd informed defendant of his Miranda warnings, he proceeded with the unrecorded interview. Agent Todd questioned defendant regarding his interaction with the victim, and defendant stated that while he had not spent a substantial amount of time alone with the victim, she would sometimes come into his bedroom to watch Netflix. Defendant talked about an incident in which the victim was dancing while watching a movie, became overheated, and began to take off her clothes. Defendant stated that the incident made him feel uncomfortable. Defendant also recalled an occasion when the victim was three or four years old and asked defendant something to the effect of, "Do you want to play with my nonnie?" Defendant stated that he later realized that the victim was referring to her genitals. Defendant confirmed that the victim asked the question in the presence of other individuals.

When defendant was asked if there was any time that he may have touched the victim's genitals, defendant stated that he was unsure or did not recall. He added that he may have inadvertently touched the victim while picking her up to either sit her on his arm or straddle her on his shoulders. Defendant further stated that he was unsure or could not recall whether the victim had ever touched his penis, stating that the victim may have inadvertently done so while hugging his leg. Agent Schlem further testified that defendant noted that the victim would sometimes get under the covers with him and he would rub her back. Defendant denied ever touching the victim in a sexual manner or that she ever touched him in a sexual manner. When defendant testified at trial, he confirmed that he was interviewed by Agent Schlem. He further confirmed that he would lay in bed with the victim at times, stating that this would only happen in E.B.'s bed. He repeatedly denied committing the offenses charged in this case, stating in part, "I did not. I'm afraid that someone did, but it wasn't me."

DENIAL OF MOTIONS FOR A MISTRIAL

In the sole assignment of error, defendant contends that the trial court abused its discretion in denying his motions for a mistrial after a State witness, Detective Messina, twice commented on his post-Miranda silence. Defendant argues that an admonishment would not have been sufficient to cure the prejudice. Defendant further argues that the prosecutor had no reason to ask Detective Messina if she spoke to defendant after he arrived at the St. Tammany Parish jail. He claims that the prosecutor deliberately solicited the testimony in question in an attempt to ascribe a guilty meaning to defendant's post- Miranda silence and to exploit his failure to claim his innocence. Defendant contends that subsequently, on cross-examination, Detective Messina unresponsively commented that defendant did not provide a statement to the investigators. Defendant argues that as an experienced officer, Detective Messina should have known better than to make such a comment at trial. He argues that the detective's comments on his post- Miranda silence were devastating to the defense. Contending that the trial consisted of his word against the child accuser's word and that there was no physical evidence against him, he contends that the comments contributed to the guilty verdicts.

Louisiana Code of Criminal Procedure article 770, with its mandatory mistrial provisions, does not apply to references to a defendant's post-arrest silence by the prosecutor or by witnesses, but only applies to references to a defendant's failure to testify at trial. State v. Kersey , 406 So.2d 555, 560, n.2 (La. 1981) ; State v. Colarte , 96-0670 (La.App. 1 Cir. 12/20/96), 688 So.2d 587, 593, writ denied, 97-1015 (La. 10/3/97), 701 So.2d 197. Louisiana Code of Criminal Procedure article 771 is the applicable provision concerning the proper remedy where references are made to a defendant's post-arrest silence. State v. Law , 15-0210 (La.App. 1 Cir. 2/24/16), 189 So.3d 1164, 1176, writ denied, 16-0926 (La. 4/24/17), 220 So.3d 740.

The Louisiana Supreme Court has indicated that under LSA-C.Cr.P. art. 771, when the prosecutor or a witness makes a reference to a defendant's post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. In such cases where the court is satisfied that an admonition is not sufficient to assure a defendant a fair trial, upon motion of the defendant, the court may grant a mistrial. State v. Kersey , 406 So.2d at 560. Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Articles 770 or 771. LSA-C.Cr.P. art. 775. Mistrial is a drastic remedy which is warranted only if substantial prejudice results that would deprive the defendant of a fair trial, and the ruling of the trial court will not be disturbed absent an abuse of discretion. Law , 189 So.3d at 1176. The trial judge is given wide discretion to determine whether a fair trial is impossible, or if an admonition is adequate to assure a fair trial. State v. Belgard , 410 So.2d 720, 724 (La. 1982) ; State v. Flowers , 16-0130 (La.App. 1 Cir. 9/19/16), 204 So.3d 271, 284, writ denied, 16-1871 (La. 9/6/17), 224 So.3d 983.

The ruling by the United States Supreme Court in Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), precludes the State from impeaching a defendant's testimony at trial with evidence that he remained silent immediately after his arrest and after receiving the warnings required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The decision in Doyle rests on the premise that Miranda warnings render the subsequent silence of a defendant "insolubly ambiguous[,]" and thereby make later use of that silence to impeach his or her exculpatory testimony at trial fundamentally unfair. Doyle , 426 U.S. at 617-18, 96 S.Ct. at 2244-45.

A brief reference to post-arrest silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted, the proof of guilt is strong, and the State made no use of the silence for impeachment. Further, the State is allowed reference to the defendant's post-arrest silence when the line of questioning is an attempt to summarize the extent of the police investigation and is not designed to exploit the defendant's failure to claim his innocence after his arrest in an effort to impeach his testimony or attack his defense. Law , 189 So.3d at 1177-78.

Herein, on direct examination Detective Messina testified that after a warrant for defendant's arrest was issued, defendant had to be extradited to St. Tammany Parish from Tennessee, where he relocated to live with his mother. The following colloquy then took place:

Q. What, if anything, did you do when you found out that Scott Barr had arrived back in St. Tammany Parish Jail?
A. So the first thing I did was, obviously, go in and book him on the warrant that we had for him. After the booking process, myself and another detective, Detective Hugh Davis, asked Mr. Barr if he'd like to accompany us back to the office to discuss the case.
At that time, he indicated he did wish to accompany us back to the office, which is about a three minute drive from the jail.
Q. So you go in to speak with the defendant, and before speaking with him, did you provide his Miranda warnings?
A. Yes, ma'am. I read him his Miranda rights. He signed the form indicating that he understood. Then I read him his waiver of rights where he then indicated that he did not wish to provide any type of statement.

After the above line of questioning, defense counsel approached the bench and moved for a mistrial. The trial court noted that a mistrial would not be mandatory under the Code of Criminal Procedure and asked defense counsel if he wanted an admonition. Defense counsel declined the offer for an admonition. As defendant notes, the motion was re-urged when, on cross-examination, Detective Messina was asked whether the victim's mother ever stated that defendant owed her money and replied, "No, sir, and Mr. Barr didn't provide a statement, so I had no knowledge of anything." Defense counsel confirmed that he was again declining an admonition, and the trial court noted that its ruling denying the motion would stand, but that it would warn the witness and the State against any further such remarks regarding defendant's post-arrest silence.

In his appeal brief herein, defendant cites State v. Patterson , 12-0464 (La. 7/2/12), 92 So.3d 338 (per curiam), wherein the defendant was charged with aggravated battery, and a jury found him guilty of second degree battery. It was a case that "essentially pitted the victim's word against defendant's with little or no corroboration on either side." Id. The Louisiana Supreme Court agreed with the court of appeal that in its entirety, the prosecutor's cross-examination of the defendant, while used for impeachment, violated Doyle by focusing on his post-arrest as well as his pre-arrest failure to provide the police with the exculpatory account he offered jurors at trial. However, the court of appeal affirmed the defendant's conviction and sentence. The supreme court reversed, finding that the Doyle violation in Patterson was not harmless, because it did not find the defendant's exculpatory account so implausible that the State carried its burden of proving that the Doyle violation did not contribute to the jury's verdict.

We find that the instant case is distinguishable from Patterson . Herein, the State, in cross-examining defendant, did not stress defendant's invocation of his right to remain silent, did not inquire about defendant's failure to respond to police questioning, and did not ask if defendant provided a statement. There is no indication in the record that the State used defendant's silence, at the time of arrest and after receiving Miranda warnings, for impeachment. Compare Doyle , 426 U.S. at 617-19, 96 S.Ct. at 2244-45. The detective's brief references to the post-arrest silence of defendant did not result in such substantial prejudice to him that he was deprived of any reasonable expectation of a fair trial. At most, the defense would have been entitled to an admonition, but the defense declined an admonition. Article 771 mandates a request for an admonishment. State v. Pooler , 96-1794 (La.App. 1 Cir. 5/9/97), 696 So.2d 22, 48, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288. Herein, there was no abuse of discretion in the denial of the motion for a mistrial based on references to post-arrest silence. Considering the record as a whole, we find that the references at issue were minimal, and the trial as a whole was conducted fairly. Considering the foregoing, the sole assignment of error is without merit.

CONCLUSION

For the foregoing reasons, defendant's assignment of error lacks merit. Accordingly, defendant's convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      The date of birth of the victim, C.S., is June 5, 2011, and the offense was alleged to have been committed between June 5, 2015, and July 22, 2016, when the victim was between four and five years old. Herein, we reference the child victim and her immediate family members by initials only. See LSA-R.S. 46:1844W.

      E.B. testified that "nonnie" was the word that she taught the victim to use when referencing her vaginal area.

      The victim's stepfather, B.B., and a family friend who was living in the residence at the time, Russell Johnson, testified that they were present on this occasion, and testified consistent with E.B., as to the victim's statement.

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

      Defendant argues that DNA evidence pointed to B.B. as the offender. Doris Hoffpauir, an expert in DNA analysis, testified the sperm fraction from a stain (located in the right-hip, non-crotch area) on the panties worn by the victim at the time of the disclosure produced a profile consistent with B.B.'s DNA profile. The epithelial fraction from the stain produced a profile consistent with a mixture of three contributors, consisting of one male, likely B.B., and two biologically related females, though statistical interpretation could not be performed. As Hoffpauir testified, the stain was invisible to the naked eye and consisted of transferred DNA, which could have been transferred during laundering. Hoffpauir further testified that generally in sexual abuse cases, semen-stained underwear would consist of multiple stains, including the crotch area, and smearing. E.B. testified that she routinely mixed the victim's clothing with other laundry. She retrieved the panties from a pile of laundry after being told to gather the items that the victim was wearing at the time of her disclosure. The victim did not make any accusations against B.B., only defendant.

      Louisiana Code of Criminal Procedure article 771 provides, in pertinent part:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      * * *
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.


text:
    Jacobee LEE v. LOUISIANA BOARD OF TRUSTEES FOR STATE COLLEGES, and Grambling State University
    2017 CA 1432
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 13, 2019
    Jeffrey Mitchell, Monica C. Sanchez, Hugo L. Chanez, Metairie, Louisiana, Counsel for Third-Party Plaintiff/Appellant, Jacobee Lee
    Brandon J. Decuir, Linda L. Clark, Baton Rouge, LA, Counsel for Defendants/Appellees, The Board of Supervisors for the University of Louisiana System and Grambling State University
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

In this personal injury case, the plaintiff appeals a trial court judgment that denied his request for judgment on an offer of judgment. For the following reasons, we affirm.

RELEVANT FACTS AND PROCEDURAL HISTORY

The plaintiff, Jacobee Lee, graduated from high school in Shreveport in 2009 and accepted a full basketball scholarship to Grambling State University (GSU) beginning in the fall semester of 2009. On August 14, 2009, Jacobee suffered a heatstroke following a mandatory four-mile outdoor disciplinary run called the Tiger Mix around the campus at GSU. The Tiger Mix was part of an unauthorized basketball team practice at the university. After completing the run, Jacobee made it back to the gym, but shortly thereafter lost consciousness. He was hospitalized for two days, after which he was discharged with diagnoses of heat exhaustion and mild rhabdomyolysis, which is the breaking down of skeletal muscle that can be caused by extreme physical activity. Since the Tiger Mix, Jacobee has suffered elevated creatine phosphokinase (CPK) levels and has been diagnosed with depression, anxiety, and post-traumatic stress disorder (PTSD).

On August 6, 2010, Jacobee filed a Petition for Damages against the Board of Supervisors for the University of Louisiana System and GSU (collectively Grambling) for the personal injuries he suffered as a result of the run. Prior to trial, on June 17, 2015, Jacobee served on Grambling an offer of judgment pursuant to Louisiana Code of Civil Procedure Article 970, wherein he offered to settle the matter for a lump sum payment of $ 2,000,000.00, exclusive of interest, costs, and attorney fees. Grambling did not accept the offer of judgment.

On March 23, 2016, following a seven-day trial, the jury held in favor of Jacobee, finding Grambling at fault for his injuries. The jury also awarded Jacobee $ 2,529,229.00 in damages, as follows:

Past and Future Physical Pain and Suffering $ 200,000.00 Past and Future Mental Pain and Suffering $1,000,000.00 Past Medical Expenses $ 15,229.00 Future Medical Expenses $ 24,000.00 Past Lost Wages $ 90,000.00 Loss of Earning Capacity $ 600,000.00 Loss of Enjoyment of Life $ 600,000.00 _____________ Total $2,529,229.00

Jacobee filed a proposed judgment on April 1, 2016. Additionally, on April 4, 2016, he filed a Motion for Judgment on Offer of Judgment and to Tax Costs. On April 4, 2016, Grambling submitted its own proposed judgment. The matters were heard by the trial court on June 14, 2016, and taken under advisement. On September 16, 2016, the trial court denied Jacobee's motion for judgment on offer of judgment and ruled on the motion to tax costs. The trial court also ruled that the judgment on the merits was subject to the State's $ 500,000.00 limitation on general damages. The trial court signed a judgment on February 13, 2017, denying Jacobee's motion for judgment on offer of judgment. On February 13, 2017, the trial court also signed a judgment awarding Jacobee past and future physical and mental pain and suffering, loss of earning capacity and loss of enjoyment of life in the amount of $ 500,000.00; awarding past medical expenses in the amount of $ 15,229.00; awarding past lost wages in the amount of $ 90,000.00; capping future medical expenses at $ 24,000.00, payable through the Future Medical Care Fund; and awarding expert cost and deposition cost in the amount of $ 29,998.50, in addition to all costs of court and legal interest, for a total amount of $ 659,227.50. Additionally, the trial court signed a final judgment on February 13, 2017, in accordance with its rulings.

Thereafter, Jacobee appealed. In his sole assignment of error, Jacobee asserts that the trial court erred when it denied his request for judgment pursuant to a valid offer of judgment pursuant to LSA-C.C.P. art. 970.

DISCUSSION

Louisiana Code of Civil Procedure Article 970 provides, in pertinent part:

A. At any time more than twenty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them. The offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule ....
B. An offer of judgment not accepted shall be deemed withdrawn and evidence of an offer of judgment shall not be admissible except in a proceeding to determine costs pursuant to this Article.
C. If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror's costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.
* * *
E. For purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained, which judgment shall take into account any additur or remittitur, the final judgment obtained shall not include any amounts attributable to costs, interest, or attorney fees, or to any other amount which may be awarded pursuant to statute or rule, unless such amount was expressly included in the offer.

Article 970 essentially provides that costs shall be awarded to an offeror whose pre-trial offer is rejected and later exceeded, after trial, by a judgment at least twenty-five percent greater than the offer. Held v. Aubert, 02-1486 (La.App. 1 Cir. 5/9/03), 845 So.2d 625, 636. Article 970 is punitive in nature and its function is to compensate the rejected offeror who is forced to incur greater trial litigation costs that could have been avoided if the offeree had not acted unreasonably in rejecting the offer. Id. ; Suprun v. Louisiana Farm Bureau Mut. Ins. Co., 09-1555 (La.App. 1 Cir. 4/30/10), 40 So.3d 261, 266.

Further, statutes that authorize the imposition of a penalty are to be strictly construed. Suprun, 40 So.3d at 266 ; Held, 845 So.2d at 637. A motion for judgment on an offer of judgment is an ancillary claim, though dependent on the original demands; and it is not ripe for adjudication before rendition of judgment disposing of the principal suit. Edwards v. Daugherty, 98-635 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, 351-52, writ denied. 99-2034 (La. 9/17/99), 747 So.2d 568.

In his appeal, Jacobee contends that because the jury awarded $ 2,529,229.00 in damages, the jury verdict obtained against Grambling was at least twenty-five percent greater than the offer of judgment of $ 2,000,000.00, and he is therefore entitled to an award of costs in the amount of $ 81,640.12 under LSA-C.C.P. art. 970. In contrast, Grambling maintains that the trial court correctly denied the motion for judgment on the offer of judgment, as the final judgment signed by the trial court, after the application of the cap on damages, failed to meet the requirements of Article 970.

The Board of Supervisors for the University of Louisiana System and Grambling State University are both constitutional and statutory state agencies of the State of Louisiana, subject to the Louisiana Governmental Claims Act, LSA-R.S. 13:5101 et seq. The Act limits a plaintiffs damages for personal injury at $ 500,000.00, exclusive of property damages, medical care and related benefits, loss of earnings, and loss of future earnings. LSA-R.S. 13:5106B.

In accordance with the Louisiana Governmental Claims Act, the trial court signed its final judgment on February 13, 2017, in the amount of $ 629,229.00. The trial court then determined that the final judgment did not meet the requirements of Article 970 and denied Jacobee's motion for judgment on the offer of judgment. Thereafter, the trial court cast Grambling with all costs of court, legal interest, and expert witness fees and deposition costs, for a total amount of $ 29,998.50 pursuant to LSA-C.C.P. art. 1920.

It is a fundamental principle of statutory interpretation that when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9 ; Caldwell v. Janssen Pharmaceutical, Inc., 12-2447 (La. 1/28/14), 144 So.3d 898, 907. The language of Article 970 is clear and must be construed according to its plain meaning. Held, 845 So.2d at 638 ; Edwards, 736 So.2d at 350. The article clearly and plainly refers to a "final judgment obtained against the defendant-offeree." See LSA-C.C.P. art. 970C. The judgment obtained in this matter is in the amount of $ 629,229.00, which obviously was not greater than Jacobee's offer of judgment. Also, Subsection E of Article 970 mandates that for the purposes of comparing the amount offered in the offer of judgment to the final judgment obtained, the "judgment shall consider any additur or remittitur."

Accordingly, we find no error in the trial court's denial of Jacobee's motion for judgment on offer of judgment and affirm the judgment of the trial court.

CONCLUSION

For the foregoing reasons, we affirm the February 13, 2017 judgment of the trial court that denied Plaintiff's Motion for Judgment on Offer of Judgment. Costs of this appeal are assessed to the plaintiff, Jacobee Lee.

AFFIRMED.

Welch J., concurs and assign reasons.

WELCH, J., concurs with reasons.

I respectfully concur with the majority opinion in this matter. While I do not agree, for the reasons set forth more fully in my dissent in the companion appeal, Lee v. Louisiana Board of Trustees for State Colleges, 2017-1431 (La. App. 1st Cir. 3/13/19), 275 So.3d 287 (Welch, J. dissenting), that the jury's award of $ 600,000.00 was subject to the State's limit of $ 500,000.00 for general damages, I find that the amount that the trial court's judgment should have awarded, i.e., $ 1,229,229.00 (plus the award of $ 29,998.50 for the cost of experts and depositions) fails to meet the requirements of La. C.C.P. art. 970. Therefore, the trial court correctly denied the plaintiff's motion for judgment on offer of judgment and its judgment should be affirmed. Thus, I respectfully concur.

      For a more complete recitation of the facts, see Lee v. Louisiana Board of Trustees for State Colleges, 2017 CA 1433, --- So.3d ----, also decided this date.

      The medical evidence shows that Jacobee suffered a heatstroke rather than heat exhaustion.

      CPKs are muscle enzymes. The level of these muscle enzymes rise as the muscle is destroyed. When Jacobee was admitted to the hospital after the Tiger Mix, his CPK level was 651. A normal CPK level is between 35 and the low 200s.

      In Jacobee's petition, the Board of Supervisors for the University of Louisiana System was incorrectly identified as the Louisiana Board of Trustees for State Colleges.

      In its judgment, the trial court found that past and future physical and mental pain and suffering, loss of earning capacity, and loss of enjoyment of life were all collectively subject to the State's $ 500,000.00 cap on general damages, pursuant to LSA-R.S. 13:5106. The State's limitation on general damages is the subject of the related case of Lee v. Louisiana Board of Trustees for State Colleges, 2017 CA 1431, 275 So.3d 287, also decided this date.

      The amount of $ 81,640.12 in costs requested by Jacobee included court costs for filing fees and jury costs, deposition fees, deposition transcript fees, expert fees, courier services, computer services, delivery expenses, research fees, and travel expenses.

      Louisiana Code of Civil Procedure Article 1920 provides:
      Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

      Although Jacobee cites to the Held case in support of his argument that the computation in an offer of judgment is calculated by comparing the offer of judgment to the jury award, the judgment signed by the trial court therein, unlike the present matter, was actually in conformity with the damages awarded by the jury. Therefore, we find Held to be distinguishable.

      Furthermore, even if we had accepted the $ 1,229,229.00 amount that Jacobee proposed be awarded, which included the $ 600,000.00 jury award for loss of future earnings, and which amount we concluded was subject to the State's limit of $ 500,000.00 for general damages in Lee v. Louisiana Board of Trustees for State Colleges, 2017 CA 1431, 275 So.3d 287, the $ 1,229,229.00 amount would still have failed to meet the requirements of Article 970.


author: WHIPPLE, C.J.

text:
    LAFOURCHE PARISH WATER DISTRICT NO. 1 v. DIGCO UTILITY CONSTRUCTION, L.P., and Auger Services, Inc.
    NUMBER 2018 CA 1112
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 13, 2019
    Christopher H. Riviere, William N. Abel, Todd M. Magee, George M. Riviere, Thibodaux, LA, Counsel for Plaintiff/Appellant, Lafourche Parish Water District No. 1
    Druit G. Gremillion, Jr., Douglas K. Williams, Alexandra E. Vozzella, Katherine M. Cook, Baton Rouge, LA, Counsel for Defendant/Appellee, Digco Utility Construction, LP
    Justin J. Marocco, Kevin O. Ainsworth, Baton Rouge, LA, Counsel for Defendant/Appellee, Auger Services, Inc.
    David J. Norman, Houma, LA, Counsel for Amicus Curiae, Consolidated Waterworks District No. 1 of Terrebonne Parish
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Plaintiff, Lafourche Parish Water District No. 1 ("LPWD"), appeals a judgment of the district court maintaining an exception of peremption filed by Digco Utility Construction, LP ("Digco"), dismissing all claims asserted by LPWD against Digco with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the pleadings filed herein, on May 22, 2006, LPWD entered into a contract with Digco to construct an eighteen-inch public water pipeline from the Leeville Booster Station to the Leeville Bridge. In order to complete the project, Digco utilized directional drilling to lay a water transmission line underground. A Certificate of Substantial Completion was filed in the Lafourche Parish mortgage and conveyance records on March 26, 2007, establishing that the project was substantially complete on January 31, 2007. The certificate was executed by A1 Badeaux of Badeaux Engineers Incorporated and "accepted" by Sidney Triche, the President of LP WD, on behalf of LPWD on February 15, 2007.

On September 5, 2014, Auger Services, Inc. ("Auger"), a subcontractor of Entergy, was driving steel caissons into the ground in connection with work performed on a project to install storm-hardened electric transmission lines to southern Lafourche Parish, when it encountered resistance at approximately forty feet below the surface, the source of which was later discovered to be contact with the water transmission line laid by Digco. Auger continued to drive the caisson into the underground water transmission line, causing it to rupture. After the waterline ruptured, water began to flow and wash out the surface of the ground within the vicinity of the construction, which required that LPWD take emergency actions to repair the water transmission line.

On August 27, 2015, LPWD filed a petition for damages and breach of contract against Digco and Auger, averring that Digco laid the waterline nearly thirty feet deeper than the plans and specifications required, outside of the existing eight-foot right of way, and without correctly marking the location of the waterline. LPWD sought damages for all costs associated with remedial work to repair and replace any and all damaged waterlines and valves.

Digco filed an exception of peremption, contending that LPWD's claims against it are perempted under the five-year peremptive period set forth in LSA-R.S. 38.-2189 and LSA-R.S. 9:2772. Following a trial on the exception, the district court signed a judgment on May 15, 2018, maintaining Digco's exception of peremption and dismissing all claims asserted by LPWD against Digco, with prejudice, at LPWD's costs.

LPWD now appeals, contending that the district court incorrectly found that LSA-R.S. 38:2189 contemplates a peremptive period, when "the clear expression of the legislature" sets forth a prescriptive period.

DISCUSSION

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. LSA-C.C. art. 3447. Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon expiration of the peremptive period. LSA-C.C. art. 3458. Peremption has been likened to prescription in that peremption is prescription that is not subject to renunciation, interruption , or suspension. See LSA-C.C. art. 3461 ; Bank v. Rayford, 2017-1244 (La. App. 1st Cir. 3/29/18), 247 So.3d 733, 735.

Peremption and prescription are properly raised by the peremptory exception, and the rules governing the burden of proof as to prescription also apply to peremption. See LSA-C.C.P. art. 927 ; Ouatrevingt v. State, ex rel. Landry, 2017-0884 (La. App. 1st Cir. 2/8/18), 242 So.3d 625, 632, writ denied, 2018-0391 (La. 4/27/18), 239 So.3d 837. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if the plaintiff's claim is perempted or prescribed on its face, the burden shifts to the plaintiff to show the action is not perempted or prescribed. See Prevo v. State, ex rel. Department of Public Safety and Corrections Division of Probation and Parole, 2015-0823 (La. 11/20/15), 187 So.3d 395, 398. Evidence may be introduced to support or controvert the exceptions of peremption and prescription. See LSA-C.C.P. art. 931.

Louisiana Revised Statute 38:2189, entitled "Prescription," provides that:

Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards or subdivisions shall prescribe 5 years from the substantial completion, as defined in R.S. 38:2241.1, or acceptance of such work, whichever occurs first, or of notice of default of the contractor unless otherwise limited in this Chapter. [Emphasis added.]

This statute was intended to apply to actions brought by the state (or its agencies, boards, or subdivisions) against the contractor on the contract or its surety in connection with public works let by the state or any of its agencies. State, ex rel. Division of Administration v. Mclnnis Brothers Construction, 97-0742 (La. 10/21/97), 701 So.2d 937, 945, citing Honeywell, Inc., v. Jimmie B. Guinn, Inc., 462 So.2d 145, 148 (La. 1985). In Mclnnis, the Supreme Court, after conducting an extensive and thorough analysis, determined that the five-year time limitation set forth in LSA-R.S. 38:2189 was peremptive - not prescriptive. See State, ex rel. Division of Administration v. Mclnnis Brothers Construction, 701 So.2d at 946-948. This holding has been consistently recognized and applied in the appellate circuit courts of this state. See Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107 (La. App. 1st Cir. 2/8/08), 984 So.2d 72, 85 ; Bossier Parish School Board v. LeBlan c, 45,632 (La. App. 2nd Cir. 9/22/10), 48 So.3d 355, 358, writ denied, 2010-2396 (La. 12/17/10), 51 So.3d 13 ; Plaquemines Parish Government v. Burk-Kleinpeter, Inc., 2015-1152 at p. 4 (La. App. 4th Cir. 3/9/16) (unpublished), 2016 WL 915393 ; Orleans Parish School Board v. Scheyd, Inc., 98-2989 (La. App. 4th Cir. 6/16/99), 737 So.2d 954, 957-958. writ denied, 99-2103 (La. 11/5/99), 750 So.2d 181 ; Law Enforcement District of Jefferson Parish v. Mapp Construction. LLC, 2016-220 (La. App. 5th Cir. 6/30/16), 196 So.3d 896, 900.

On appeal, LPWD contends that the legislature contemplated that the five-year period set forth in LSA-R.S. 38:2189 was prescriptive, and that "[j]urisprudence stating otherwise is largely based on unnecessary and misguided endeavors to uncover the legislature's intent, as well as purported 'public policy concerns' which seem to have been manifested solely by proclamation of the court, rather than that of the legislature." LPWD further contends that under the facts of this case, LPWD had no way of knowing or determining that the water transmission line in question actually deviated outside of its servitude, particularly when surface markers installed by Digco and/or its subcontractor gave LPWD every indication that the waterline was within LPWD's servitude. For these reasons, and citing equitable concerns, LPWD contends that the commencement of the running of the prescriptive period was suspended by the doctrine of contra non valentum until September 5, 2014, when the incident occurred.

In support of its argument, LPWD contends that in Mclnnis, the court "improperly classified" LSA-R.S. 38:2189 as peremptive, and that its reasoning for doing so is "misplaced." Instead, LPWD argued that we should apply the reasoning of Justice Lemmon in his dissenting opinion (that there is no legitimate public policy reason for imposing a peremptive period in actions against contractors in public works contracts, rather than the majority opinion of the Supreme Court.).

Pretermitting the LPWD's arguments on the merits of its claims against Digco, we conclude that as an intermediate appellate court, we are bound to follow decisions of the state Supreme Court. Pelican State Associates, Inc. v. Winder, 253 La. 697, 706, 219 So.2d 500, 503 (1969). In particular, when a question is not specifically regulated by statute and the Supreme Court has made the only available definitive ruling and the last expression of law as to the issue, we must follow those rulings. Oliver v. Magnolia Clinic, 2011-2132 (La. 3/13/12), 85 So.3d 39, 44 ; Cavalier v. State, ex rel. Department of Transportation and Development, 2008-0561, 2008-0562 (La. App. 1st Cir. 9/12/08), 994 So.2d 635, 641. Additionally, when a law has been interpreted by the Louisiana Supreme Court, and the legislature has not seen fit to change that law, it must be assumed that the legislature has adopted such interpretation. Matter of Carline Tank Services. Inc., 627 So.2d 669, 672 (La. App. 1st Cir. 1993) (on rehearing); see also St. Martin Land Co. v. Pinckney, 212 La. 605, 619-620, 33 So.2d 169, 173 (1947) ; Succession of Sciaccaluga, 177 La. 795, 798-799, 149 So. 458, 459 (1933).

In support of its exception of peremption, counsel for Digco introduced a copy of the petition for damages, a certified copy of the recorded certificate of completion, and the March 16, 2007 report from Badeaux Engineers. Thus, Digco contended that where the certificate of completion established that the project was substantially complete on January 31, 2007, LPWD's claims against Digco had expired before its petition was filed on August 27, 2015.

Where the Supreme Court has specifically instructed that the five-year time limitation period set forth in LSA-R.S. 38:2189 is peremptive, see State, ex rel. Division of Administration v. Mclnnis Brothers Construction, 701 So.2d at 946-948, because LPWD's suit was not filed within five years of either acceptance of the work or substantial completion, we find no error in the judgment of the district court maintaining Digco's exception of peremption.

CONCLUSION

For the above and foregoing reasons, the May 15, 2018 judgment of the district court is affirmed. Costs of this appeal in the amount of $ 1,982.03 are assessed to the plaintiff/appellant, Lafourche Parish Water District No. 1.

AFFIRMED.

      The contract was recorded in the mortgage and conveyance records of Lafourche Parish.

      A March 16, 2007 report from Badeaux Engineers Incorporated confirmed that the waterline was put into service on January 31, 2007.

      Notably, LSA-R.S. 38:2189 provides that any action against a contractor on a public works project let by the state or any of its agencies shall prescribe five years from substantial completion, as defined in LSA-R.S. 38:2241.1, or acceptance of such work, whichever occurs first.

      Louisiana Revised Statute 9:2772 provides a five-year peremptive period for all actions involving deficiencies in construction of immovables or improvements thereon.

      The judgment dismissing all claims against Digco is a final judgment for purposes of appeal. See LSA-C.C.P. art. 1915(A)(1).

      The following is a brief excerpt of the analysis and discussion set forth in Mclnnis:
      We turn now to the issue of whether La. R.S. 38:2189 is peremptive, and therefore not susceptible of suspension, interruption or renunciation for any reason, or prescriptive. We do so ever mindful of the earlier discussed jurisprudence of this court holding that peremption is a matter to be determined by legislative intent and public policy. Considering the plain, explicit language of the statute, the obvious purpose behind the statute, and the readily apparent public policy which mitigates against suspension, interruption or renunciation of that time limit and in favor of certainty in the termination of causes of action, we conclude that La. R.S. 38:2189 establishes a time limitation which is peremptive in nature.
      Looking to the language used in the statute, we note it specifically states that any action against the contractor on the contract or on the bond or against the surety on the bond having to do with the construction of any public work let by the state or any of its agencies, boards or subdivisions shall prescribe 5 years from the substantial completion or acceptance of such work, whichever occurs first, or from notice of default of the contractor. Both substantial completion and notice of acceptance are specific, well-understood occurrences and are discussed in the Public Works Act as defining, significant events of the construction process. See La. R.S. 38:2241.1. These words are clear and unambiguous, and reflect an intent by the legislature to set forth a precise period of time to govern the filing of suit by a state entity against a general contractor or its surety under the Public Works Act. Legislation should be interpreted in a manner to give it effect rather than to render it meaningless. If we found La. R.S. 38:2189 to be prescriptive and capable of being suspended or interrupted for any reason, then no claim would ever prescribe within five years from the specific dates of substantial completion or notice of acceptance. This would totally abrogate the application and effect of La. R.S. 38:2189 and render it meaningless. Certainly, the legislature could not have intended to engage in an act of futility.
      * * *
      For the aforementioned reasons, we conclude La. R.S. 38:2189 erects a peremptive time limitation on the State's ability to bring suits against the contractor or the surety on a public works contract. We can think of no way in which the legislature could have more explicitly stated that claims by the State against a general contractor arising out of a public works contract shall be brought only in this specific five year period and not thereafter without our having to conclude that it was necessary for the legislature to specifically state in the statute that it is peremptive and not susceptible of suspension, interruption or renunciation-something we expressly hold today is not necessary for us to conclude a statute is peremptive. The plain language of the statute, the fact that the statute would be meaningless if we allowed the time limitation thereunder to be suspended, interruption or renounced, the obvious legislative intent to create a time limitation for these types of contracts which would be shorter than that applicable to private works contracts, and the public policy underlying the statute which mitigates in favor of providing certainty and finality to these types of claims in order to reduce contract costs, all lead us to conclude La. R.S. 38:2189 is a statute of peremption.
      State, ex rel. Division of Administration v. Mclnnis Brothers Construction, 701 So.2d at 946-948 (emphasis added; citations and footnotes omitted).

      Contra non valentem is traditionally applied to suspend the running of liberative prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. State, ex rel. Division of Administration v. Mclnnis Brothers Construction, 701 So.2d at 940, citing Corsey v. State, through Department of Corrections, 375 So.2d 1319, 1321 (La. 1979). The doctrine of contra non valentum does not apply to a peremptive period. Contra non valentem has always been a judicially created equitable doctrine applied to ameliorate the harshness which would result from the strict application of prescription in certain situations. State, ex rel. Division of Administration v. Mclnnis Brothers Construction, 701 So.2d at 939-940.

      Of note, the version of LSA-R.S. 38:2189 analyzed in Mclinnis is the same version in effect herein.

      Considering our finding herein that the district court correctly determined that LPWD's claims against Digco were extinguished upon expiration of the five-year peremptive period set forth in LSA-R.S. 38:2189, we find it unnecessary to discuss the applicability of LSA-R.S. 9:2772.


author: PERRY, Judge.

text:
    STATE of Louisiana v. Daniel Heath KIGHT
    18-974
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Annette Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, Louisiana 70602-1747, (337) 436-2900, Counsel for Defendant/Appellant: Daniel Heath Kight
    John F. DeRosier, District Attorney, Charles Robinson, Assistant District Attorney, Shelley A. DeVille, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, Louisiana 70601, (337) 437-3400, Counsel for Appellee: State of Louisiana
    Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.
   PERRY, Judge.

Daniel Heath Kight ("Defendant") appeals his mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence for the second degree murder of David Scasino ("Scasino"). For reasons which follow, we affirm Defendant's sentence.

FACTS AND PROCEDURE

Scasino and Defendant, who were friends, had trailer homes next to each other in Vinton, Louisiana. On the morning of September 22, 2014, Scasino was found dead in his trailer home by Mark Kidder, a neighbor and friend. The Calcasieu Parish Coroner's report showed Scasino suffered multiple stab wounds and cuts to the head, neck, abdomen, back, buttocks, and both upper and lower extremities; his injuries led to the severing of both carotid arteries, a hole in his lung, and four holes in his liver. The Coroner also found Scasino's chest was cut open from the neck to his genitalia, and his testicles were removed and placed next to his body; these injuries were inflicted post-mortem.

The Vinton police arrested Defendant, and a grand jury indicted him with the second degree murder of Scasino. Between Defendant's arrest and his bench trial, on February 14, 2018, multiple sanity and competency panels examined Defendant; all concluded he was competent to proceed to trial and that he was sane at the time of the offense. Defendant entered a plea of not guilty and not guilty by reason of insanity and waived his right to a jury trial. After a four-day bench trial in which two psychiatrists and one psychologist, the former two for the State and the latter for Defendant, testified about Defendant's mental health history and the status of his sanity at the time of the murder, the trial judge found Defendant guilty as charged and rejected his plea of not guilty by reason of insanity.

On March 26, 2018, the trial judge, applying the mandatory sentencing provisions of La.R.S. 14:30.1(B), imposed a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. The sentencing colloquy is quoted below:

[I]t could be very problematic for Daniel to be in [the] regular population at Angola or ... probably a lot of other state facilities. Based on what I have heard up to this point, and based on the conviction I am sentencing him to life in prison without benefit of probation, parole or suspension of sentence .... However, I want it emphatically stated in the sentence that I am recommending that the state make every effort to place him in an appropriate facility based on his limitations and his medical condition. And I'll do whatever I can to make that happen.

Defendant now raises two assignments of error, namely: (1) The imposition of the mandatory life sentence without benefit of parole, probation, or suspension of sentence violates the Eighth Amendment of the U.S. Constitution and La.Const. art. 1, § 20, as it is nothing more than cruel and unusual punishment and, thus, excessive; and (2) Defendant received assistance of counsel below that guaranteed by the Sixth Amendment during the sentencing phase, as counsel failed in three instances: (a) counsel failed to argue and present evidence to establish that Defendant was "exceptional" and deserving of a downward departure from the mandatory life sentence at hard labor without benefit of parole, probation, or suspension of sentence due to the mitigating factors present in this case; (b) counsel failed to object to the excessiveness of the life sentence; and (c) counsel failed to file a motion to reconsider the sentence to preserve for appellate review the issue of whether Defendant was exceptional and deserving of a downward departure from the statutorily mandated sentence.

DISCUSSION

Defendant's assignments of error are interrelated. Therefore, we will address them together.

Defendant first contends that his statutorily mandated life sentence is excessive because of his alleged diminished culpability. Accordingly, he argues he should receive a downward departure from the single sentence the legislature mandated in La.R.S. 14:30.1(B). He further notes he would be precluded from advancing this argument because trial counsel failed to argue and present evidence at his sentencing hearing that he was deserving of a downward departure from the mandatory sentence, and he failed to object to his sentence and chose not to file a motion to reconsider sentence under La.Code Crim.P. art. 881.1. Thus, he argues these failures evidence trial counsel provided ineffective assistance during the sentencing phase, and this court should assess that claim.

In State v. Reed , 00-1537, pp. 21-22 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, 1274-75, writ denied , 02-1313 (La. 4/25/03), 842 So.2d 391, a case that addressed similar claims of ineffective assistance of counsel, we stated:

Defendant alleges that his life sentence, although statutorily mandated, is excessive under the circumstances of this case. Defendant argues in the alternative that there was no strategic reason for defense counsel to have ignored the requirements of La.Code Crim.P. art. 881.1 ; he, therefore, received ineffective assistance of counsel.
As noted, Defendant did not make or file a motion to reconsider his sentence. Pursuant to Article 881.1, Defendant had thirty days from the date of sentencing to make or file a motion to reconsider. Absent a timely motion, this court is precluded from a review of the sentence on appeal. State v. Joubert, 97-1093 (La.App. 3 Cir. 2/4/98)[,] 705 So.2d 1295, writ denied, 98-1525 (La. 10/30/98)[,] 723 So.2d 973.
However, inasmuch as Defendant raises allegations of ineffective assistance of counsel for failure to make or file a motion to reconsider his sentence, and the record before us enables us to do so, we will address this issue.
....
This court held in State v. Judge , 99-1109 (La.App. 3 Cir. 3/1/00)[,] 758 So.2d 313, [writ denied , 01-1094 (La. 3/28/02), 812 So.2d 641,] that there could be a basis for an ineffective assistance claim if a defendant can show a reasonable probability that, had counsel filed or made a motion to reconsider the sentence, the sentence would have been different.

The record before us is complete and allows us, as we did in Reed , to address the issue of trial counsel's ineffective assistance at the sentencing hearing. To prevail on his ineffective assistance of counsel claim, Defendant must show from the outset that his trial counsel's deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, in the present case, unless Defendant can show a downward departure from the mandatory life sentence for second degree murder was warranted, he cannot meet Strickland's prejudice test.

It is well-accepted that a trial court is required to impose sentences the legislature prescribed unless the sentences are unconstitutional. State v. Dorthey , 623 So.2d 1276 (La.1993). Under La.R.S. 14:30.1, second degree murder has only one possible constitutional sentence-mandatory life imprisonment without the benefit of probation, parole, or suspension of sentence.

In State v. Watson , 15-392, pp. 14-15 (La. App. 3 Cir. 10/7/15), 175 So.3d 1192, 1202, writ denied , 15-2046 (La. 11/7/16), 208 So.3d 897, this court stated:

Louisiana Revised Statutes 14:30.1 provides that the punishment for second degree murder is life imprisonment without the benefit of parole, probation, or suspension of sentence. Quoting State v. Williams , 445 So.2d 1264, 1269 (La.App. 3 Cir.), writ denied , 449 So.2d 1346 (La.1984), the State in the instant case noted that "[i]t is 'an exercise in futility' for a trial court to consider sentencing factors when imposing a mandatory sentence when the trial court [has] no discretion in sentencing a defendant." Moreover, while discussing the possibility of a downward departure from a mandatory life sentence for second degree murder, in State v. Runyon , 05-36, p. 33 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, 429-30, writ denied , 06-1348 (La. 9/1/06), 936 So.2d 207, and writ denied , 06-667 (La.11/17/06), 942 So.2d 526, this court noted:
Citing State v. Dorthey , 623 So.2d 1276 (La.1993), and State v. Sepulvado , 367 So.2d 762 (La.1979), [defendant] contends that his mandatory life sentence for a second-degree murder conviction is too severe and that he should either be resentenced or a more appropriate sentence should be imposed by this court.
In State v. Paddio , 02-722, pp. 16-17 (La.App. 3 Cir. 12/11/02), 832 So.2d 1120, 1131, writ denied , 03-402 (La. 2/13/04), 867 So.2d 682 (citations omitted), this court discussed the imposition of life sentences under La.R.S. 14:30.1, stating:
[A] court may depart from a minimum sentence only if it finds that there is clear and convincing evidence that rebuts the presumption of constitutionality. To rebut the presumption, a defendant must show, by clear and convincing evidence, that, "because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case."
Defendant ... set forth no mitigating reasons why his sentence is cruel, unusual, or too severe. He makes no attempt to set forth unusual circumstances that rebut the presumption of constitutionality; thus[,] he has failed to meet his burden of proof on this point. The gravity of the offense merits the punishment prescribed by the legislature, and Defendant ... makes no showing to the contrary.

See also State v. Ross , 03-564 (La.App. 3 Cir. 12/17/03), 861 So.2d 888, writ denied , 04-376 (La. 6/25/04), 876 So.2d 829.

Accordingly, it is incumbent upon Defendant to raise the question of whether the mandatory life sentence for the offense of second degree murder was inappropriate in his case. This, he did not do. There was no discussion at the sentencing hearing regarding such a concern, nor did Defendant raise it in a motion to reconsider the sentence.

In the present case, Defendant argues that trial counsel was required to explicitly argue for a downward departure at the sentencing hearing, see Watson , 175 So.3d at 1202, and that constituted the basis for his ineffective-assistance claim. There is no reason for a court deciding an ineffective assistance claim to address such component, if the defendant makes an insufficient showing of prejudice. Strickland , 466 U.S. at 697, 104 S.Ct. at 2069. "The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Id. Commenting on the assessment of prejudice from trial counsel's errors, the Strickland court noted:

[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given[ ] and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Id. , 466 U.S. at 695-96, 104 S.Ct. at 2069.

Defendant, who was thirty-four years of age when he murdered Scasino, presents a twofold argument to justify a downward departure from the mandated life sentence-his mental health and his mental functioning. To get a better perspective on Defendant's argument and assess the determination of prejudice, a review of the record is necessary to provide a picture of his mental health.

In that regard, it is unrefuted that Defendant showed no delusional episodes until he was involved in a 1998 car accident that profoundly affected him. At that time, he drove his automobile at an excessive speed, struck a tree, and was ejected through the rear window of the vehicle. He remained in a coma for approximately forty-five days; at that time his brain was full of fluid, and he almost severed his neck. After he regained consciousness, he was moved to a rehabilitation center, where he was still unable to sit up and eat. In time, he was able to sit in a wheelchair, and he eventually progressed to the point where he could ambulate with the help of canes and perform daily tasks. His parents, Cynthia Pierce and James Kight, testified Defendant was totally different after he suffered this traumatic brain injury. Eventually, Defendant was able to live alone, manage his own finances, and take care of himself.

Defendant's parents and various relatives described numerous delusions that he had commencing after his accident and continuing up to the time of Scasino's murder, almost sixteen years later. Among Defendant's delusions were the following: his assertion that he told the President of the United States where Saddam Hussain hid; he worked for the CIA and President, and they were going to get him out of jail; he worked for Cheryl Tiegs, and he was good friends with Oprah, Dr. Phil, and Reba McIntire; and he and his father could fly faster than the speed of light.

However, of the various delusions, the one that would play the most active part in Scasino's murder was Defendant's fixation on ninjas. According to Defendant, it was because he had a ninja that he was able to do the things outlined just above. He also feared that there existed "others" who would enter his house and talk to him. In one conversation with his mother, Defendant explained that he lined his apartment, and then later his trailer, with aluminum foil because these "other intruders" could take his camper and twist it back like a can opener. In another conversation with his father, he explained his foil-covered abode as being necessary because the ninjas were after him.

Defendant and Scasino were neighbors and friends who lived next to each other. On more than one occasion, without any factual basis, Defendant would call Scasino a child molester. On the day before the killing, a Vinton 9-1-1 operator received a telephone call from someone who identified himself as Daniel Kight. The caller reported that he heard noises coming from Scasino's trailer and asked that a Calcasieu Parish deputy be sent to remove a child from Scasino's trailer; the caller was concerned that Scasino was doing something to the little girl. In the course of the 9-1-1 call, the caller commented that if the police wanted to see the caller choke the life out of Scasino and rip his nuts off, they could ignore the call.

Randall Ravia ("Detective Ravia"), a detective with the Calcasieu Parish Sheriff's Office, responded to the 9-1-1 call. Detective Ravia testified he spoke with Defendant and Scasino, looked into Scasino's trailer, and found no children or evidence that children were present. Scasino told Detective Ravia that Defendant would often smoke weed, get mad at him, and all would be fine the next day. Detective Ravia further testified that he spoke with Defendant and told him that he found no children inside Scasino's trailer. Although Detective Ravia could not remember Defendant's mental state, he recalled that Defendant told him he had smoked marijuana before the police arrived. When his call sheet for services was shown to him at Defendant's trial, Detective Ravia testified that the code shown on the sheet, 103M, meant "possible mental subject."

Dr. Jerry Whiteman ("Dr. Whiteman"), an expert in psychology who testified as a defense witness, related a conversation in which Defendant described the killing to him. Defendant told Dr. Whiteman that he thought he was defending a little girl and explained that he cut Scasino from his neck to his genitalia to get the ninja out that was hiding inside him.

Two psychiatrists, Dr. Patrick Hayes and Dr. James Anderson, examined Defendant at length prior to trial, testified at various pre-trial hearings regarding Defendant's mental health, and testified again at Defendant's trial; all in all, during the course of more than three and one-half years, these two psychiatrists participated in four separate hearings regarding Defendant's mental state. Although both psychiatrists concluded Defendant knew right from wrong at the time of the murder, they both acknowledged Defendant's failure to take his prescriptive medication, coupled with his use of illegal drugs, exacerbated the delusions from which Defendant suffered. In fact, Dr. Hayes opined that Defendant would do fine if he properly took his prescriptive medications and if he lived in a controlled environment.

Dr. Hayes also addressed Defendant's intelligence; after reviewing various Wechsler test results, he noted Defendant's IQ was somewhere between seventy-five and eighty-two, a low average score. In addition, Dr. Whiteman, Defendant's expert, concluded that Defendant was delusional at the time of the murder but opined that Defendant's long-time substance abuse greatly contributed to his delusions and paranoia; he, too, administered a Wechsler test and determined Defendant's full-scale IQ was seventy-five.

Defendant's arguments are similar to the argument presented in State v. Little , 50,776 (La.App. 2 Cir. 8/10/16), 200 So.3d 400, writ denied , 16-1664 (La. 6/16/17), 219 So.3d 341, in which a defendant, who was twenty-two years of age, pled guilty to the second degree murder of a convenience store clerk during a robbery and sought a downward departure from the mandatory life sentence without benefits he received under La.R.S. 14:30.1.

In Little , 200 So.3d at 402, the defendant argued that he was only twenty-two years of age, a first felony offender, and mentally retarded, as his IQ "fell between 42 and 55 and allegedly equated to a mental age of nine years old." The second circuit, noted that "[a]lthough courts have the power to declare a mandatory minimum sentence excessive[,]" that "power should be exercised only in rare cases and only when the court is firmly convinced that the minimum sentence is excessive." Id. at 403. It further stated, "the defendant must clearly and convincingly show that he is 'exceptional' by proving that the imposed sentence is not meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case." Id. at 404. Ultimately, the second circuit denied the defendant's claim that he was entitled to a downward departure.

Likewise, this court addressed a similar claim in State v. Monceaux , 17-1052 (La.App. 3 Cir. 5/9/18) (unpublished opinion). In Monceaux , the defendant, who was nineteen years of age, claimed his limited education and intellectual functioning rendered him the equivalent of a juvenile; thus, he argued, he should not receive a mandatory life sentence without benefits for the aggravated rape of a boy who was seven years of age. As in Little , the defendant argued his youth and diminished mental capacity should entitle him to be treated like a juvenile for sentencing purposes. Finding the defendant's actions exhibited deliberate thought, this court found the defendant did not prove he deserved a downward departure from the mandatory sentence he received and, therefore, he failed to prove he suffered prejudice from trial counsel's failure to file a motion to reconsider sentence.

Finally, in State v. Thomas , 50,898 (La.App. 2 Cir. 11/16/16), 209 So.3d 234, the defendant argued that he should have received a downward departure from life imprisonment for aggravated rape. In that case, the defendant premised his argument, in part, on the medical findings that he was bipolar, schizophrenic, and off his psychiatric medication. Finding the defendant's mandatory minimum sentence justified, the second circuit viewed the brutality of the crime and the severity of the wounds he inflicted upon the victim.

In the present case, a day after telling a 9-1-1 dispatcher that he would kill Scasino and rip his genitalia off, Defendant stabbed his victim more than a dozen times, cut open his chest from the neck to the genitalia post-mortem, and gelded him. Considering the totality of the evidence presented to the trial court, including the four comprehensive hearings on Defendant's mental status, the details his family provided, and the brutality of Defendant's crime, we find Defendant did not prove this is one of those rare cases which deserves a downward departure from the mandatory sentence he received. Therefore, he fails to prove he suffered prejudice from trial counsel's failure to argue and present evidence at sentencing to establish a downward departure, to object to the sentence as excessive, and to file a motion to reconsider sentence. Thus, Defendant's claim of ineffective assistance of counsel likewise fails. Accordingly, Defendant's sentence is affirmed.

AFFIRMED.

      Defendant has not appealed the trial court's determination of his guilt or the rejection of his plea of not guilty by reason of insanity.

      Although the sentencing judge mentioned that it would be difficult if Defendant were placed in the regular population at Angola, he did not mention hard labor or the Department of Corrections when he imposed Defendant's sentence without benefit of probation, parole or suspension of sentence. Notwithstanding, the court minutes indicate Defendant's sentence was to be served in the Louisiana Department of Corrections, necessarily at hard labor.
      If a discrepancy exists between the commitment and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732 (La.1983). Louisiana Code of Criminal Procedure Article 879 requires a court to impose a determinate sentence. If there were some discretion allowed by the applicable sentencing statute, the failure to indicate whether the sentence was to be served at "hard labor" would be an impermissible indeterminate sentence. However, because Defendant herein was sentenced pursuant to La.R.S. 14:30.1 which requires a mandatory sentence of life imprisonment at hard labor, Defendant's sentence is determinate and the failure to state such is harmless error. See , State v. Porter , 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115.

      Defendant's mental status was the subject of pre-trial hearings before Judge Wyatt on December 14, 2014, December 16, 2015, and October 12, 2016. At the conclusion of each of those hearings, the trial court agreed with the psychiatric experts that Defendant was sane at the time of the offense and competent to stand trial. Defendant's four-day bench trial which began on February 14, 2018, also focused at great length on his mental health. After hearing from psychiatrists, psychologists, and lay witnesses, many of whom were related to him, the trial court rejected Defendant's plea of not guilty by reason of insanity.