author: JOHNSON, J.

text:
    STATE of Louisiana v. Viusqui J. PEREZ-ESPINOSA
    NO. 18-KA-576
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Anne M. Wallis, Kellie M. Rish, Richard L. Olivier, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, VIUSQUI J. PEREZ-ESPINOSA, Jane L. Beebe
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

Defendant/Appellant, Viusqui Perez-Espinosa, appeals his convictions and sentences for second degree murder and obstruction of justice from the 24th Judicial District Court, Division "K". For the following reasons, we vacate Defendant's sentences and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 4, 2017, a Jefferson Parish Grand Jury returned a true indictment charging Defendant with second degree murder in violation of La. R.S. 14:30.1 (count one) for the killing of Ives Alexis Portales-Lara and obstruction of justice in violation of La. R.S. 14:130.1 (count two). On May 8, 2017, Defendant pleaded not guilty at his arraignment. On January 23, 2018, the State filed a Notice of Intent to Introduce Evidence of Other Acts, which the trial court heard and granted on February 7, 2018. Meanwhile, on January 29, 2018, the trial court heard and denied motions to suppress statements and evidence.

The trial commenced against Defendant on March 19, 2018. At the conclusion of the trial, the 12-person jury returned verdicts of guilty as charged on March 26, 2018. On April 25, 2018, Defendant filed a written Motion for New Trial and for Post-Verdict Judgment of Acquittal and a written Motion for Appeal and Designation of Record.

On April 26, 2018, the date of sentencing, the trial court granted Defendant's Motion for Appeal and Designation of the Record. After granting the motion for appeal, the trial court heard and denied Defendant's Motion for New Trial and for Post-Verdict Judgment of Acquittal. Subsequent to a victim impact statement being read, the trial court sentenced Defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one and 40 years at hard labor on count two, with the sentences to be served consecutively. Defendant filed a motion to reconsider the sentences in open court, which the trial court denied. The instant appeal followed.

LAW AND ANALYSIS

On appeal, Defendant alleges the trial court erred in granting the State's motions to have other crimes evidence admitted against him, and the trial court imposed excessive consecutive sentences. However, there is an error patent in this matter that precludes review of Defendant's assignments of error.

In this case, as previously mentioned, Defendant was convicted on March 26, 2018. On April 25, 2018, Defendant filed a Motion for New Trial and for Post-Verdict Judgment of Acquittal and a written Motion for Appeal. The April 26, 2018 sentencing transcript reflects that the trial court granted Defendant's motion for appeal, denied the Motion for New Trial and for Post-Verdict Judgment Acquittal, and then imposed Defendant's sentence all on the same date and in the same proceeding. We find that, once the trial court granted the motion for appeal, it was without jurisdiction to rule on the Motion for New Trial and for Post-Verdict Judgment of Acquittal or to impose Defendant's sentences.

Pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant's motion for an appeal. State v. Lampkin , 12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 162, writ denied , 13-2303 (La. 5/23/14), 140 So.3d 717. A premature appeal need not always be dismissed when a sentence is imposed after the defendant's motion for appeal has been filed. State v. Johnson , 13-75 (La. App. 5 Cir. 10/9/13), 128 So.3d 325, 327. A defendant can appeal from a final judgment of conviction only when the sentence has been imposed. La. C.Cr.P. art. 912.

Generally, motions for new trial and for post-verdict judgment of acquittal must be filed and disposed of before sentencing. La. C.Cr.P. art. 853(A) ; La. C.Cr.P. art. 821(A). Once the trial court is divested of jurisdiction, it may take only certain specified actions, none of which include ruling on a motion for a new trial. La. C.Cr.P. art. 916 ; State v. Johnson , supra . Also in this case, the trial judge was without jurisdiction to rule upon the motion for post-verdict judgment of acquittal. See La. C.Cr.P. art. 821(A).

In this matter, Defendant argued in his timely filed Motion for New Trial and for Post-Verdict Judgment of Acquittal that he was never charged with the sexual assault of T.C., and thus, the introduction of the alleged sexual assault was prejudicial and warranted the granting of a new trial. This argument pertains to Defendant's argument regarding the admission of other crimes evidence in assignment of error number one. At the hearing on the motion for new trial, defense counsel rested on the written motion, and the State responded that this issue was heard during pre-trial matters and the incident was properly admitted into evidence. The trial judge asked if counsel had any rebuttal, and she indicated, "Nothing beyond what is in our motion. I mean, we noted our objection to the admission of the evidence regarding the sex-alleged sexual assaults." The second time the motion was heard, defense counsel additionally indicated that the evidence should not have been admitted, and a new trial was warranted.

In Johnson , this Court found that the trial court divested itself of jurisdiction by granting the defendant's motion for appeal and then denying the defendant's motion for new trial, the substance of which he raised on appeal. The trial court in that matter granted the motion for appeal on October 31, 2012, and denied the motion for new trial on November 8, 2012. After it denied the motion for new trial, the trial court sentenced the defendant. This Court found vacation of the sentences and a remand were proper for consideration of the defendant's motion for new trial. Id. at 329.

State v. Clark , 15-357 (La. App. 5 Cir. 11/19/15), 180 So.3d 602, 603, is also of relevance. In that matter, the defendant was convicted on January 30, 2015, and on February 11, 2015, filed a motion for post-verdict judgment of acquittal. The defendant also filed a motion for appeal that was granted on February 12, 2015. After the appeal was granted, the defendant filed a motion for new trial on April 2, 2015. On that same date, the trial court denied the motion for post-verdict judgment of acquittal and the motion for new trial. On April 14, 2015, the trial court sentenced the defendant. Id.

In Clark , this Court found that the record was clear that upon the granting of the defendant's motion for appeal on February 12, 2015, the trial court was divested of jurisdiction to subsequently sentence the defendant or to rule on his motions for post-verdict judgment of acquittal and new trial. Id. at 604. This Court acknowledged that, in some instances, appellate courts have considered such jurisdictional errors to be either "cured" or harmless and, in the interest of judicial economy, have ruled on the merits of the arguments presented in the defendants' appeals. However, it found that under the circumstances of that case, where some of the grounds raised in the post-trial motions are also raised by the defendant on appeal, it could not ignore the fact that the trial court lacked jurisdiction at the time it sentenced the defendant and ruled on his post-trial motions. Id.

See also State v. Daniels , 13-176 (La. App. 5 Cir. 10/9/13), 128 So.3d 349, 351, where this Court held that the trial court was without jurisdiction to entertain a timely motion for new trial based on La. C.Cr.P. art. 851(3), except upon remand of the case, when it had previously entered an order of appeal. This Court found that the motion for new trial was timely, and the denial of the motion for new trial was the sole issue on appeal. In Daniels , 128 So.3d at 350, the motion for appeal was granted on May 7, 2012, and the motion for new trial was denied on January 28, 2013.

In this matter, Defendant does not raise the denial of his motion for new trial on appeal. Defendant does not specifically assert in his appellate brief that the State did not charge him for the sexual assault, as he did in his post-trial motion. Nonetheless, Defendant's argument in his post-trial motion relates to assignment of error number one. Therefore, we find that the trial court was without jurisdiction to rule on Defendant's Motion for New Trial and for Post-Verdict Judgment of Acquittal, as it divested itself of jurisdiction upon the granting of Defendant's motion for appeal. Because the post-trial motion is related to assignment of error number one regarding other crimes evidence, we conclude that consideration of the assignment should be pretermitted.

Accordingly, we find that the trial court erred in denying Defendant's Motion for New Trial and for Post-Verdict Judgment of Acquittal because it did not have the jurisdiction at that time to render a ruling on the motion, and a remand is warranted to rule on the motion. We advise the trial court that if the motion is denied, it should resentence Defendant because the trial court was without jurisdiction to impose Defendant's sentences at the time it did so. See La. C.Cr.P. art. 916. Further, once Defendant has been resentenced, he has the right to appeal his convictions and sentences. In regard to assignment of error number two, because the trial court was without jurisdiction to impose Defendant's sentences after granting the motion for appeal, we also pretermit discussion of that assignment because it relates to his sentences.

DECREE

For the foregoing reasons, we vacate Defendant's sentences and remand the matter to the trial court for a ruling on Defendant's Motion for New Trial and for Post-Verdict Judgment of Acquittal.

SENTENCES VACATED; REMANDED

      After the motion to reconsider sentence was denied, defense counsel indicated that she believed there were some issues with the Spanish interpreter during sentencing. Out of an abundance of caution, the trial court swore in Maritza Colon, a trial interpreter, and re-granted the Motion for Appeal and Designation of Record and re-heard and again denied the Motion for New Trial and for Post-Verdict Judgment of Acquittal. Afterward, the court also re-imposed Defendant's sentences of life in prison at hard labor without the benefit of parole, probation, or suspension of sentence on count one and 40 years at hard labor on count two, to run consecutively, and again denied the motion for reconsideration of sentence. Under La. C.Cr.P. art. 916(3), a trial court retains jurisdiction to rule on a defendant's properly filed motion to reconsider sentence.

      This Court has routinely held that a trial court's failure to rule on the merits of a motion for new trial or post-verdict judgment of acquittal prior to sentencing constitutes an error patent on the face of the record, requiring that the sentence be vacated and the case be remanded for a ruling on the motion. See State v. Aguliar-Benitez , 16-336 (La. App. 5 Cir. 12/7/16), 206 So.3d 472, 473-74 and the cases cited therein. In this case, the motion was ruled on before Defendant's sentences were imposed; however, the timing of the ruling poses a problem.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Chamid J. DAVIS
    NO. 18-KA-485
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Juliet L. Clark, Terrytown
    COUNSEL FOR DEFENDANT/APPELLANT, CHAMID J. DAVIS, Davidson S. Ehle, III, Gretna
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   WICKER, J.

Defendant, Chamid Davis, appeals his conviction and sentence for second degree murder in violation of La. R.S. 14:30.1. For the following reasons, we affirm defendant's conviction and sentence.

STATEMENT OF THE CASE

On January 28, 2016, a Jefferson Parish Grand Jury returned an indictment charging defendant, Chamid J. Davis, with second degree murder in violation of La. R.S. 14:30.1. Defendant was arraigned and pled not guilty.

On May 1, 2017, the State filed a "Notice of Intent to Introduce Evidence" at trial under La. C.E. art. 404(B) to prove that defendant had access to one of the firearms used in the commission of the murder. Following a hearing, the trial court found the evidence relevant and admissible and granted the State's notice of intent.

The matter proceeded to trial, and on March 23, 2018, a twelve-person jury returned a verdict of guilty as charged. On March 29, 2018, defendant filed a "Motion for New Trial and for Post-Verdict Judgment of Acquittal," which the trial court denied. After defendant waived delays, the trial court sentenced defendant to life imprisonment at hard labor with the benefit of parole eligibility. On April 6, 2018, defendant filed a motion to reconsider sentence, which the trial court denied. This timely appeal follows.

FACTS

This case involves the October 19, 2015 murder of Kevin Thomas, Jr., who was fifteen years old at the time he was shot multiple times outside of his apartment building at 1001 Sycamore Drive in Westwego, Louisiana. Kevin's mother, Marilyn Jackson, testified that she was sitting on the sofa in her apartment when Kevin left the apartment at approximately 12:20 a.m. to go outside. She testified that minutes later, she heard "shots," so she went outside and saw Kevin running toward the apartment. She opened the apartment door to let him in, where he collapsed on the floor. Ms. Jackson called the police.

Officer Jessica Bergeron Wayner with the Westwego Police Department responded to the call and assessed Kevin until emergency medical services arrived. Officers canvassed the apartment building and the surrounding area searching for eyewitnesses to no avail. However, during their inspection of the perimeter of the apartment building, officers discovered a clear bag with green vegetable matter, fired cartridge casings, and projectile fragments, which officers collected as evidence. Officers also observed a trail of blood leading from the area where most of the casings and projectiles were found to the direction of Kevin's apartment.

Officers detected the smell of marijuana upon entering the apartment and subsequently obtained a search warrant. In Kevin's bedroom, officers located fifteen individual baggies containing green leafy vegetable matter and a digital scale. Officers also found a High Point .40 caliber pistol, which the police learned was stolen. The coroner investigation revealed a small pill bottle with a clear baggy of green vegetable matter hidden inside the underwear Kevin was wearing at the time of the murder. From their initial investigation, officers suspected that Kevin was a marijuana distributor.

During the search of the apartment, officers also found Kevin's cell phone, and his mother provided the password. Police discovered that at 12:20 a.m., immediately before the murder, Kevin received a text message from cell phone number (504) 509-XXXX, seemingly asking to purchase marijuana from Kevin. Investigating officers suspected the owner of the cell phone had lured Kevin outside with the intent to shoot him.

As part of the investigation, Detective Christopher Fisher requested an exigent circumstances records request of cell phone number (504) 509-XXXX from T-Mobile Cellular Telephone Company (T-Mobile), wherein he sought to obtain current subscriber information, call detail records with cell site, call records, and real-time location of the mobile device. Detective Fisher learned that the cell phone number that contacted Kevin shortly before he was murdered was registered to a Jessica Coleman, later adduced to be defendant's aunt, whom he lived with in Gretna. He also learned from review of the records that shortly after the murder, the cell phone number was disconnected and changed. With this information, on October 20, 2015, at approximately 5:03 p.m., Detective Fisher and other officers went to speak with Jessica Coleman, who confirmed that the cell phone number belonged to defendant.

At the time of the murder, Johnneika Honor, age sixteen, was defendant's girlfriend and also knew the victim, whose nickname she provided as "Little Kevin." She also knew co-defendant Hughes and how close Hughes and defendant were. On October 22, 2015, Detective Tyler Lopez and Sergeant Nocito interviewed Johnneika, initially as a witness, at the Westwego Police Department. She told the interviewing detectives that defendant was her boyfriend and provided both defendant's old and new cell phone numbers. She provided that she discovered on Instagram that Kevin was dead and heard at school that the person who set him up had called Kevin's phone that night. Johnneika told the detectives that defendant was at her house on the night of the murder from 10:00 p.m. to 3:00 a.m., and that he was picked up and dropped off in a black Charger. Because the officers suspected she was being dishonest, they asked Johnneika to fill out a waiver of rights form and give a statement. Both Johnneika and her legal guardian, Arnetta Harris, who was present, consented for police to search Johnneika's cell phone. On her phone, police saw text messages from the phone number that called Kevin moments before he was murdered. There was also a text message between defendant and Johnneika after the murder, where Johnneika told defendant that "Little Kevin nem dead," and defendant responded, "I know but delete that message don't even speak on that."

After detectives confronted her with the text messages, Johnneika told detectives that defendant and Kevin were "beefing" because Kevin broke into defendant's aunt's car and stole a gun. Eventually, Johnneika admitted that defendant confessed to her that he called Kevin from his phone on the night of the murder and pretended to be someone else and that he and Hughes shot Kevin in the back as he fled. She also stated that defendant and Hughes had come to her house after the murder that night in a large gray truck because Hughes was supposed to bring her a phone. Arnetta stated that she too saw a gray truck as she arrived home that night.

Johnneika further indicated during the interview that defendant had changed his cell phone number the morning after the murder occurred because he realized he made a mistake by calling Kevin from his phone. After the interview with Johnneika, Hughes and defendant were developed as suspects and arrest warrants issued. Defendant eventually turned himself in.

The cell phone extraction report from Johnneika's cell phone revealed additional text messages between Johnneika and defendant which were not on her phone at the time of the interview because they had been deleted. These text messages further confirmed that defendant had changed his number after the murder. When Johnneika texted defendant asking him why he changed his number and if it was because of "that stuff," defendant replied to stop texting "about that" and then called her.

There were also text messages between the two on October 21, 2015, indicating that they were arguing over defendant seeing other girls. Johnneika wrote for defendant to ask "one of them other hoes you fw to lie withcuu," and defendant responded "Know what f**k you son. I get jammed up ima just take my lick" and that he "shouldna trusted telling you that's where I f**ked up I think." There also existed text messages between Johnneika and Hughes wherein Johnneika wrote that another person was trying to take the credit for Kevin's murder, but she indicated that defendant had "said that's his work."

Johnneika's cell phone extraction also revealed that on October 20, 2015, at approximately 5:46 p.m., at which time the police were at defendant's aunt's home, Hughes texted Johnneika to call him as soon as possible and that it was important. Johnneika and Hughes spoke on the phone, and later, Johnneika texted Hughes: "Is he going to jail?" Hughes responded that he did not know but that "he gonna beat that charge, all they have is a phonecall ... Long as u stick ur part ... he straight!" Johnneika wrote to Hughes that she knew what to say. Detectives connected this message with Johnneika's attempt to lie about defendant's whereabouts on the night of the murder in her interview two days later.

The cell phone extraction report for Kevin's cell phone corroborated that defendant and Hughes had "beef" over Kevin allegedly stealing a gun out of defendant's aunt's car. On September 6, 2015, Kevin texted his friend that "Madge and them" had "beef" and for them to "[g]et ready to squeeze" because the "hammer's in they car." Lieutenant Eric Orlando with the Westwego Police Department explained that "hammer" is slang for a gun, and "squeeze" was a term for a theft. On September 8, 2015, Kevin received a text asking for a picture of the "Glock ... So I could see about the lick." Kevin responded to the text by sending a picture of a .10 mm Glock. A text message was also found on Kevin's phone from Hughes which read: "Came up on a 10 milly glissy tonight, huh," which Lieutenant Orlando explained was a slang term for a .10 mm Glock, and defendant also sent a text message to Kevin asking or indicating that Kevin "came up on a glissy 10 last night."

Jene Rauch, an expert in the field of firearm and tool-mark examination, performed ballistic analysis on the nine .9 mm fired cartridge casings, copper jackets, projectiles, and bullet fragments collected outside of Kevin's apartment by the crime scene technicians, as well as the two projectiles recovered from Kevin's body during the autopsy. She determined that the nine cartridge cases were fired from two separate firearms, but the two projectiles recovered from Kevin's body during the autopsy were fired from the same weapon.

An analysis of the national database revealed that the ballistics involved in the murder matched that of two firearms previously entered into the system. The ballistic analysis determined that a .9 mm Ruger had been fired at the scene of the murder, but the projectiles recovered from Kevin's body did not match the ballistics from the Ruger.

Rather, the projectiles found inside Kevin's body and the remaining casings found at the scene matched a .9 mm pistol. The database showed that the same weapon was used in an unrelated shooting on October 10, 2015, involving defendant's cousin, Daniel Bryant, on Frenchman Street, and a second unrelated shooting on October 16, 2015, on Frenchman and North Claiborne. Lieutenant Eric Orlando testified that it was common for guns to be disposed, traded, or sold after they are used in the commission of crimes. He theorized that the fact that defendant lived with his cousin, Daniel, provided defendant with direct access to the weapon close in time to the murder.

Detective Donald Zanotelli with the Jefferson Parish Sheriff's Office examined the cell site location information of defendant's and Hughes' cell phones by plotting the latitude and longitude locations of the cell phone towers their cell phones communicated with leading up to and during the time of the murder. He testified that the results indicate the whereabouts of a person's cell phone within a "cone" of approximately less than a mile and a half from the cell phone tower with which a cell phone was in communication. The results of his analysis showed that near midnight, Hughes' cell phone was near defendant's home, and then both cell phones seemed to go in the direction of Westwego. The records further revealed that at approximately 12:18 a.m., defendant's cell phone was in use and near Sycamore Drive where Kevin was murdered. On cross-examination, Detective Zanotelli clarified that the report tracks the location of mobile devices, and thus, he could not verify whether either Hughes or defendant actually possessed their cell phones at the time the movements were tracked.

At trial, the State asked Johnneika whether defendant admitted to her that he had lured Kevin outside under the pretense he was going to conduct a drug deal and then murdered him. The State also questioned her about whether defendant admitted to her that it was a bad idea for him to contact Kevin from his phone, which is why he decided to change his number. At trial, Johnneika testified that she could not remember or did not know and denied that defendant admitted to her that he killed Kevin.

The State published to the jury copies of Johnneika's grand jury testimony during which she stated that sometime after midnight on October 19, 2015, Hughes and defendant arrived at her house in a gray truck and that defendant told her that he and Hughes had shot at Kevin. She further stated that she knew that defendant was "beefing" with Kevin over Kevin stealing a gun from defendant's aunt's car. She testified that she later texted defendant that Kevin was dead, and that defendant responded that he already knew Kevin was dead and instructed her to delete the text message.

Johnneika further testified that defendant told her that he had called Kevin from his phone on the night of the murder pretending to contact him to purchase marijuana. Defendant admitted to Johnneika that calling Kevin was a mistake, and that he changed his phone number the day after the murder. She also stated that Hughes told her to lie about defendant's whereabouts on the night of the murder.

The State also published to the jury a document from a confidential meeting with Johnneika on April 24, 2017, at her house. On the document, Johnneika wrote that her statements to the grand jury were the truth and that she had been treated fairly and appropriately by the district attorney's office. It also stated that she was afraid to tell the truth in court because she feared someone would hurt her or her family. The piece of paper was signed by Johnneika, the State, and her legal guardian, Arnetta.

At trial, Arnetta could not remember whether she saw defendant and Hughes outside of her house after midnight following the murder, and she was treated as a hostile witness by the State. Arnetta maintained that she only saw a gray truck outside of her house on that night. Arnetta identified photographs of the truck she saw outside of her house, which was confirmed to be Hughes' uncle's truck.

The State also presented at trial the testimony of Lloyd Petit as other crimes evidence. He testified that on October 18, 2015, he reported that his firearm, a .9 mm Ruger, was missing from his home. He reported to the police that the last time he saw the gun was October 16, 2015, at approximately 7:00 p.m. in his bedroom where he hid it.

Mr. Petit recalled that on October 17th, he and his wife left their home at around 8:00 a.m. to go to work, and that he left his stepdaughter, Lamerika, and her younger sister at home. He noticed that when he arrived home that night around 10:00 p.m., his bed was made when it had not been made when he left for work that morning.

The following morning, his younger daughter told him that two males were inside the residence with Lamerika the prior day while he was at work. Mr. Petit spoke to Lamerika, who told her stepfather that a Joseph Sylvester, age fifteen, and a Charles Brown, age sixteen, came to the house that day. Mr. Petit searched the house and discovered that his gun was missing. Mr. Petit reported the gun stolen and provided the gun's serial number to police. The police subsequently determined that Mr. Petit's gun was one of the two firearms used in connection with Kevin's murder.

At trial, Lamerika testified that she gave false names to her stepfather and the police out of fear that she would be killed or hurt if she told the truth about who was at her house. She admitted that she was still afraid to testify, even two years after the murder, but felt like she was betrayed because she knew and cared for Kevin. At trial, Lamerika admitted that defendant and Hughes came over to her house on October 17, 2015, and that she believed that Hughes stole the gun. She explained that while defendant and Hughes were at the house, Lamerika and defendant stayed downstairs in the family room while Hughes and a friend of Lamerika's, Nadia Wilson, went upstairs.

DISCUSSION

On appeal, defendant contends that (1) the trial court erred in denying his motions for new trial and post-verdict judgment of aquittal, essentially challenging the sufficiency of the evidence presented against him at trial; (2) the trial court erred in granting the State's 404(B) motion to introduce evidence of his alleged involvement in the theft of Mr. Petit's stolen firearm; and (3) the admission of his cell phone records in this case pursuant to the State's subpoena duces tecum violates his constitutional right to privacy. We will address each assignment of error in turn.

In his first assignment of error, defendant argues that the trial court erred in denying his motions for new trial and post-verdict judgment of acquittal wherein he challenged the sufficiency of the evidence presented against him at trial.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. State v. Baham , 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied , 15-0740 (La. 3/24/16), 190 So.3d 1189.

Defendant was charged with second degree murder. Second degree murder is defined in La. R.S. 14:30.1 as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. State v. Lewis , 05-170 (La. App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied , 06-757 (La. 12/15/06), 944 So.2d 1277. Here, the written jury charges, signed by the trial judge, reflect that the jury was instructed that it could convict defendant under the theory that he had the specific intent to kill or inflict great bodily harm upon Kevin or because defendant was engaged in the commission or attempted commission of an armed robbery.

Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Nelson , 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 500, writ denied , 15-0685 (La. 2/26/16), 187 So.3d 468. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

On appeal, defendant does not challenge the essential statutory elements of the crime but, rather, he challenges the State's evidence presented to prove his identity as the perpetrator. Defendant contends that his cousin, Daniel Bryant, with whom he lived, should be considered the prime suspect in this case as he had access to both guns and defendant's cell phone as well as a motive for murdering Kevin. He contends it is just as likely that Hughes and Daniel were the shooters as Hughes had access to the .9 mm Ruger and Daniel to the unrecovered .9 mm. Defendant further contends that the cell site location information introduced at trial failed to prove that defendant had actual possession of his cell phone on the night of the murder and did not physically place defendant at the scene of the murder. Defendant also challenges the credibility of Johnneika due to her mental status and contradictory testimony and describes her as a "leaky vessel."

With respect to defendant's identification as the perpetrator, there were no eyewitnesses to the murder. Rather, Johnneika identified defendant as the perpetrator in her interview to police and in her grand jury testimony, not as an eyewitness to the murder, but because defendant confessed to her that he did it. Although defendant argues that Johnneika was a "leaky vessel" because she lied initially to the police and then maintained at trial that she could not remember what occurred, and that she was diagnosed as suicidal and with depression, the jury nonetheless considered these issues with regard to Johnneika's credibility. Further, the jury heard and considered Johnneika's contradictory trial testimony but also the fact that both she and Arnetta were afraid that if Johnneika told the truth someone would hurt them or their family.

Despite Johnneika's inconsistent statement at trial, the jury clearly believed her prior statements that defendant confessed to her that he lured Kevin outside by pretending to want to buy marijuana and then shot him in the back as he tried to run away. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Saulny , 16-734 (La. App. 5 Cir. 5/17/17), 220 So.3d 871, 876, writ denied , 17-1032 (La. 4/16/18), 240 So.3d 923 ; see also State v. Cowart , 01-1178 (La. App. 5 Cir. 3/26/02), 815 So.2d 275, writ denied , 02-1457 (La. 5/9/03), 843 So.2d 387.

Furthermore, Johnneika's identification of defendant was corroborated by direct evidence presented by the State that defendant's cell phone contacted Kevin's cell phone moments before the murder and then defendant changed his number the day following the murder. It was further supported by the cell phone records with cell site location information evidencing that defendant went to Hughes' house prior to the murder before they both went in the direction of Westwego, where the murder occurred, and further cell site location information placed defendant's cell phone in the area of the murder and showed his phone in use around the time it occurred. This was further corroborated by the testimony and evidence showing that defendant and Hughes were together in Hughes' uncle's gray truck on the night of the murder.

Although defendant argues that the State failed to prove that he retained physical possession of the cell phone, and asserts that Daniel Bryant could have been using the cell phone, the intimacy of the text messages between defendant and Johnneika after the murder, and the fact that Johnneika was still in communication with the new number after the murder, support the State's evidence that defendant had possession of his own cell phone and changed his number following the murder to conceal the fact that he had called Kevin. The text messages also appear to evidence defendant's guilty conscience as he indicated that he needed someone to talk to, his nervousness over communicating about the murder as he told Johnneika not to speak about the murder and to delete their text messages, and his regret over telling her he did it after the two had a romantic squabble. Evidence of flight, concealment, and attempt to avoid apprehension is relevant and admissible to prove consciousness of guilt from which the trier-of-fact may infer guilt. State v. Bellow , 08-259 (La. App. 5 Cir. 7/29/08), 993 So.2d 307, 316, writ denied , 08-2109 (La. 4/13/09), 5 So.3d 162.

The State also presented evidence to show that Johnneika was instructed by Hughes to lie about defendant's whereabouts on the night of the murder and Kevin's cell phone extraction report showed text messages between Kevin, Hughes, and defendant indicating they had "beef," which supported the State's theory as to defendant's motive. Defendant contended that Daniel was the true murderer and argued to the jury that Daniel had access to defendant's phone because the two lived together, had a motive as it was his mother's weapon that was stolen, and that at one point he had actually possessed and used the unrecovered .9 mm weapon. Yet, the jury chose not to believe this theory.

Thus, viewing the evidence in the light most favorable to the prosecution under the Jackson standard, we find that the State proved defendant committed the second degree murder of Kevin Thomas, Jr. beyond a reasonable doubt, and the trial court did not abuse its discretion in denying the motions for new trial and post-verdict judgment of acquittal.

In his second assignment of error, defendant asserts that the trial court erred in granting the State's motion to introduce evidence that he was present when Mr. Petit's .9 mm Ruger was stolen from his home. On May 1, 2017, the State filed a "Notice of Intent to Introduce Evidence" that defendant was present at the time a firearm-which officers determined was used in connection with Kevin's murder-was stolen, and thus, had access to the weapon. The State averred that the evidence was admissible for purposes of proving defendant's intent, opportunity, preparation, plan, and identity. In opposition to the motion, defendant argued that the evidence was highly prejudicial against defendant in light of the fact that he did not steal the weapon, and the prejudicial effect would outweigh any probative value. At the hearing on the State's motion, defendant indicated that he had no objection to Mr. Petit testifying that his weapon was stolen from his home or with the investigating officer testifying as to the investigation surrounding the stolen weapon, but only that he had an "issue" with the State presenting evidence to show that defendant stole the weapon. At the hearing, the trial court granted the State's motion, finding evidence that defendant was at Mr. Petit's home the day the weapon was stolen was probative and relevant.

At trial, the State presented ballistic evidence showing that Mr. Petit's .9 mm Ruger was used at the scene of the murder, although none of the shots fired from the .9 mm Ruger hit Kevin. Lamerika and Mr. Petit's testimony clearly established that on October 17, 2015, two days prior to the murder, defendant and Hughes were at Mr. Petit's house where the gun was located. At trial, Lamerika denied that defendant ever left her presence while he was in her home, while Hughes went upstairs, where the gun was kept, with her friend Nadia.

Upon our review of the record, we find that the other crimes evidence at issue was not of another crime or bad act committed by defendant, but rather that of a crime allegedly committed by Hughes. The evidence at issue revealed that defendant was with Hughes two days before the murder, allegedly resulting in Hughes' possession of one of the weapons used at the scene of the murder.

La. C.E. art. 404(B) provides that evidence that constitutes an integral part of the crime, formerly known as "res gestae," is admissible "...when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." State v. Scott, 15-1762 (La. 11/30/15), 184 So.3d 2, 7. A "close connexity" between the charged and uncharged conduct is required. In State v. Rhea , 03-1273 (La. App. 5 Cir. 2/23/04), 868 So.2d 863, 867, this Court recognized:

The test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State's case of narrative momentum and cohesiveness, "with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.

Id. (citing Colomb , 747 So.2d at 1076, quoting Old Chief v. United States , 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997) ).

Upon review of the record, we find that the evidence at issue was admissible as integral act evidence to "complete the story of the crime on trial by proving its immediate context of happenings near in time and place." See Charles, supra . The State presented evidence to show a connection between Hughes' alleged taking of the weapon and the use of that stolen weapon in the murder only two days later. Lamerika testified that defendant and Hughes came to her house on October 17, 2015, and Mr. Petit testified that the police came to his house on October 18, 2015, when he reported the firearm stolen. Kevin was murdered in the early hours of October 19, 2015.

Also, the State acknowledged at trial that both weapons used at the murder scene were not recovered from the searches of defendant's or Hughes' home and were also involved in other subsequent and unrelated criminal acts. Further, the State did not attempt to prove that defendant stole Mr. Petit's gun. However, it was integral for the State to demonstrate how one of the weapons used at the scene of the murder was obtained close in time to the murder by Hughes, defendant's close associate who the State alleged acted with defendant to kill Kevin. Accordingly, we find that trial judge did not abuse his discretion in granting the State's motion and this assignment of error is without merit.

In his final assignment of error, defendant asserts that his Fourth Amendment right to privacy was violated when the State introduced his cell phone records, which included cell site location information, at trial. Defendant contends that the evidence, which was obtained pursuant to a subpoena duces tecum issued by the State under 18 U.S.C. § 2703, rather than with a warrant, was obtained in contravention of the recent United State Supreme Court's decision in Carpenter v. United States , --- U.S. ----, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). In its appellee brief, the State responds that defendant failed to preserve this issue for review because a motion to suppress was never heard or ruled upon in this case and, further, because defendant failed to object to the introduction of the evidence at trial.

The record reflects that, on February 7, 2017, the State issued a "Motion for Issuance of Subpoena Duces Tecum pursuant to 18 U.S.C. § 2703," which the trial court granted, seeking all account information, cell site location information, and incoming and outgoing call information for the months of September and October, 2015, regarding cell phone number (504) 509-XXXX. Although the record reflects that defendant filed Omnibus Motions and Order for Pre-trial Motions, including a motion to suppress the evidence sought to be used against him, the omnibus motions were never heard. Generally, a defendant waives all pending motions by permitting trial to proceed without raising the issue that his pre-trial motions were neither heard nor ruled on. State v. Fletcher , 02-707 (La. App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied , 03-0409 (La. 10/10/03), 855 So.2d 334 ; see also La. C.Cr.P. art. 703(F). Furthermore, defense counsel did not object at trial to the introduction of the records containing the cell site location information. "An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence." La. C.Cr.P. art. 841(A). Therefore, defendant has not properly preserved this issue for review on appeal.

Nevertheless, even if considered, we find that exclusion of the evidence at issue would not be warranted in this case. On appeal, defendant relies on Carpenter v. United States , supra , in which the United States Supreme Court held that a warrant supported by probable cause is generally required before cell phone location records from a third-party provider can be acquired and that a showing under the Stored Communications Act fell "well short of the probable cause required for a warrant." Id. , 138 S.Ct. at 2221. Although Carpenter was decided subsequent to defendant's conviction and sentence, the United States Supreme Court has instructed that a new rule for the conduct of criminal prosecution is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final. Griffith v. Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). Therefore, the Carpenter holding applies retroactively to defendant's case as it is currently pending on direct review with this Court. Applying Carpenter to the facts of this case, it appears that the State did not comply with the Fourth Amendment in its reliance on an SCA court order to obtain defendant's cell site location information from a third-party provider.

However, exclusion of the evidence under such circumstances is not always appropriate. The exclusionary rule "is designed to deter police misconduct rather than to punish the errors of judges and magistrates." United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), the United States Supreme Court held that evidence obtained during a search conducted in objectively reasonable reliance on binding appellate precedent, which is subsequently overruled, is not subject to the exclusionary rule.

Here, the State relied upon the Stored Communications Act § 2703 to obtain defendant's cell site location information. That part of the SCA authorizes courts to order cell-phone providers to disclose non-content information if the State "offers specific and articulable facts showing that there are reasonable grounds to believe that ... the records or other information sought are relevant and material to an ongoing criminal investigation." See 18 U.S.C. § 2703(c)(1)(B) and 2703(d). Attached to the State's subpoena duces tecum was the affidavit for defendant's arrest warrant, certifying that defendant had contacted Kevin via text message just minutes before the murder occurred from his cell phone in order to meet with Kevin under pretense of a drug transaction. The trial court granted the order, and the subpoena duces tecum was issued to T-Mobile after the trial court found that the State had "offered specific and articulable facts showing there are reasonable grounds to believe that the information requested [was] relevant and material."

Upon our review of the record, we find that the officers acted in accordance with the SCA and established Louisiana jurisprudence prior to Carpenter's holding. See State v. Isaac , 17-87 (La. App. 5 Cir. 10/25/17), 229 So.3d 1030. Accordingly, we find exclusion of the evidence would not have been warranted under the facts of this case. This assignment is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent pursuant to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reflects that the trial judge failed to order that defendant's sentence of life imprisonment be served without the benefit of probation or suspension of sentence as mandated by La. R.S. 14:30.1. However, under La. R.S. 15:301.1, statutory restrictions on probation, parole, or suspension of sentence are self-activating. The Uniform Commitment Order (UCO) and the sentencing minute entry correctly reflect that defendant received a life sentence with parole eligibility, yet they fail to correctly reflect the restriction of the benefits of probation or suspension of sentence. Therefore, we remand this matter for the correction of the UCO and the sentencing minute entry for correction to reflect statutory restrictions on probation and suspension, and order the trial court to transmit the corrected versions to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B). See State v. Roland , 06-244 (La. 9/15/06), 937 So.2d 846 (per curiam); State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

Accordingly, for the foregoing reasons, defendant's conviction and sentence are affirmed.

AFFIRMED

      Donald Hughes was also named as a co-defendant in the bill of indictment but was tried separately from defendant.

      Defendant is a juvenile homicide offender and was sentenced in accordance with the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

      Ms. Jackson testified that Kevin's father found the cell phone in the grass outside of the apartment after the murder and brought it inside before police arrived.

      The record also indicates that defendant's nickname was "Madge," and Hughes' nickname was "Dulla."

      At the time the police executed a search warrant at Hughes' residence located at 2462 Oxford Place in Gretna, it was discovered that his uncle, who resided there, owned a silver 2014 GMC pickup truck which matched the description of the truck provided by Johnneika and Arnetta at the interview. Further, the automated license plate recognition database confirmed that the truck had been driven on the night of the murder.

      At the end of the interview, Johnneika was taken away by ambulance to Northlake Behavior Health System where she was committed for one week. Johnneika was diagnosed as suicidal and with depression.

      Detective Orlando explained a "lick" was a hit on someone or a theft.

      Officers collected one firearm, a .9 mm Ruger, on December 29, 2015, as evidence in an unrelated case. The gun was ultimately recovered in possession of someone who was never a suspect in Kevin's murder. It was also used in three unrelated incidents occurring on October 29, 2015, November 30, 2015, and December 1, 2015.

      The State presented the testimony of Tasha Harrison who provided that on October 10, 2015, she was sitting outside her house when Daniel, a/k/a Deezol, approached her and fired shots in the air. Tasha called out to Daniel that she knew it was him, and she also recognized his car. The police were called, and the shell casings were collected. Tasha also identified Daniel in court during trial as he was an inmate in Jefferson Parish and was brought in for her to identify him.

      Susan Johnson, the custodian of the T-Mobile phone records for (504) 509-XXXX, identified call detail records with cell site location information and indicated such records were kept in the normal course and scope of business. She further explained that the cell phone records contained the date and time text messages or calls were made and received as well as the latitude and longitude of the cell phone tower through which the cell phone was routed.

      Arnetta testified that she did not know what happened "seriously and it's jeopardizing my life and everything. I'm ready to get out of here. For real, I'm dyslexic and I have bad nerves. I'm serious. I'm diagnosed. I don't want to be in here, I don't. I don't know what happened that night. I'm ready to go." On cross-examination, defense counsel attempted to question Arnetta about a statement she made during the police interview wherein she said, "[i]f you live by a gun, you die by a gun." She responded "that's what's going on out there and that's why I'm up here right now scared for my life. They're killing grandchildren, killing kids and everything. They don't care about nobody out here. I'm ready to get from off the stand. You heard me? I'm ready for real."

      Detective Zanotelli's testimony corroborated that his analysis of the cell site location information from that evening revealed that Hughes and defendant's cell phones were around the area of Lamerika's house. However, Detective Zanotelli clarified that this same area also included defendant's home, and it could not be ascertained where exactly within the area defendant was located.


author: WILLIAMS, C.J.

text:
    LUV N' CARE, LTD., Plaintiff-Appellant v. JACKEL INTERNATIONAL LIMITED, Defendants-Appellees
    No. 52,615-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    NUBY LAW, By: Robert M. Chiaviello, Jr., Joe D. Guerriero, LISKOW & LEWIS, By: Shannon S. Holtzman, Carol W. Reisman, New Orleans, Counsel for Appellant
    HAYES, HARKEY, SMITH & CASIO, LLP, By: Thomas M. Hayes, III, Monroe, FISH & RICHARDSON P.C., By: John Goetz, Counsel for Appellees
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   WILLIAMS, C.J.

The plaintiff, Luv N' Care, Ltd. ("LNC"), appeals a judgment ordering LNC to pay an expert witness fee of $ 19,433.24 and attorney fees of $ 172,621.10 to the defendants, Jackel International Limited, Product Marketing Mayborn, Ltd., Mayborn Group Limited, Mayborn USA, Inc., Mayborn ANZ Pty, Ltd., and Jackel China, Ltd. The trial court ordered the payments after denying LNC's motion for contempt and LNC has not appealed the court's denial of the motion. For the following reasons, we amend the judgment and affirm as amended.

FACTS

This matter arises from a distribution agreement between LNC, which is a manufacturer of baby products, and the defendants (collectively "Mayborn"). In 2010, LNC filed a lawsuit alleging that Mayborn had breached the distribution contract by copying LNC products. After a trial in 2013, the jury found that Mayborn had breached its obligations under the contract. The trial court rendered judgment awarding damages to LNC for Mayborn's sale of seven particular cups which used a silicone compression valve. The trial court entered a permanent injunction prohibiting Mayborn from selling those cups and other products that are copies or "colorable imitations" of LNC's silicone compression valve.

In 2016, LNC filed a motion for contempt alleging that Mayborn had sold products in violation of the permanent injunction. After Mayborn filed a number of exceptions, urging vagueness, unauthorized use of summary proceedings and no cause of action, LNC amended its motion for contempt to identify Mayborn's "Tommee Tippee Sippee Trainer" with spout as the product that violated the injunction. The trial court sustained the exception of unauthorized use of summary procedure, dismissed LNC's damage claims and denied Mayborn's exception of no cause of action.

At the contempt hearing in October 2017, Mayborn presented the testimony of Dr. Kimberley Cameron, who was accepted as an expert in mechanical engineering. Dr. Cameron testified that the LNC products subject to the injunction contain a compression valve, which has a movable part that opens or closes when compressive force is applied. She stated that there is no similar compression valve in the Tommee Tippee Sippee cup, which does not have a part that is moved by compression. After the hearing, the trial court issued written reasons for judgment finding that the Mayborn cup did not contain or imitate LNC's compression valve and denying the motion for contempt. The trial court assessed costs against LNC, including reasonable expert witness fees. Mayborn then filed a motion for attorney fees under La. R.S. 13:4611 and to set the amount of expert witness fees.

At the hearing on the fee motion, Dr. Cameron testified about the work she had performed and identified the invoices of her firm. Additionally, Mayborn introduced into evidence the attorney affidavits as to the hourly rates charged and the time expended in defending the contempt motion. In oral reasons, the trial court found that the expert's fees were fairly reasonable and assessed the amount of $ 19,433.24 in expert witness fees. The trial court also found that LNC was liable for Mayborn's attorney fees because the statute provides that the court may award attorney fees to the prevailing party in a contempt proceeding. After further briefing, the trial court issued written reasons for judgment on attorney fees, finding that the court was not constrained by the rates charged by local attorneys in this type of "specialized" case, which involved the issue of whether Mayborn's product infringed on LNC's design. The trial court rendered judgment denying LNC's motion for contempt and ordering LNC to pay $ 19,433.24 in expert fees and $ 172,621.10 in attorney fees. LNC appeals the judgment. Mayborn answers the appeal seeking additional attorney fees for work on appeal.

DISCUSSION

LNC contends the trial court erred in awarding attorney fees to Mayborn. LNC argues that the award of attorney fees should be vacated because the statutory prerequisite for the imposition of attorney fees is that a person be adjudged guilty of a contempt of court.

The wilful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La. C.C.P. art. 224. The punishment that a court may impose on a person guilty of contempt is provided in R.S. 13:4611.

La. C.C.P. art. 227. Section 4611 provides in pertinent part:

(1) The supreme court, the courts of appeal [and] the district courts ... may punish a person adjudged guilty of a contempt of court therein as follows:
* * *
(b) For disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than six months, or both.
* * *
(g) The court may award attorney fees to the prevailing party in a contempt of court proceeding provided for in this Section.

The starting point in the interpretation of a statute is the language of the statute itself. Winn-Dixie La. v. Physicians Surgical Specialty Hosp. , 2013-2680 (La. 2/21/14), 156 So.3d 1129 ; Moreno v. Entergy Corp. , 2012-0097 (La. 12/4/12), 105 So.3d 40. Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3. The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the intent of the legislature in enacting the law. Moreno, supra . A statute providing for an award of attorney fees is penal in nature and must be strictly construed. Quinlan v. Sugar-Gold , 51,191 (La. App. 2 Cir. 4/5/17), 219 So.3d 1173.

In the present case, the trial court found that Mayborn's product did not violate the injunction and denied LNC's motion for contempt. After Mayborn filed a motion for attorney fees pursuant to Section 4611(1)(g), the trial court interpreted the provision as giving the court discretion to award attorney fees to either party who prevails in a contempt proceeding. LNC asserts in its appellate brief that Section 4611(1)(g) does not permit an award of attorney fees against a party who has not been adjudged guilty of contempt.

We note that paragraph (1) of Section 4611 provides that the courts may punish a person adjudged guilty of contempt and lists specific penalties for particular types of contempt. Section 4611(1)(b) provides that a person who disobeys a lawful permanent injunction may be fined $ 1,000. In addition to these specific punishments, the statute provides other measures that the court may impose in addressing contempt matters, such as Section 4611(1)(g), which is at issue in this case. Although Section 4611(1)(g) provides that the court may award attorney fees to the "prevailing party" in a contempt proceeding, LNC argues that such an award may only be assessed against a party guilty of contempt because subpart (g) follows the paragraph (1) language regarding punishment.

However, when considered in the context of the statute as a whole, Section 4611(1)(g) is a measure made available to the courts in addition to the specific penalties for contempt listed after paragraph (1). Applying the express language of Section 4611(1)(g), the law reasonably means that the courts may award attorney fees to the party who prevails in a contempt proceeding, whether that party is successful in proving or in defending the contempt allegation. In support of this interpretation, the language of Section 4611(1)(g) does not limit fee awards to a finding of contempt, in contrast to the language of La. R.S. 13:4611(1)(e)(iv), which expressly imposes attorney fees only upon the parent found in violation of the visitation order. Based upon our review of the statutory language, Section 4611(1)(g) gives the trial court authority to award attorney fees to the party who prevails in the contempt proceeding. Thus, this assignment of error lacks merit.

Award of Attorney Fees

LNC contends the trial court erred in applying an incorrect standard in determining that attorney fees were owed. Every pleading of a party represented by an attorney shall be signed by the attorney as certification that the pleading is warranted by existing law, is not presented for improper purposes and contains allegations supported by evidence. La. C.C.P. art. 863. If a party violates this article, the court shall impose a sanction which may include payment of the other party's reasonable attorney fees. La. C.C.P. art. 863(D).

Here, LNC argues in its brief that the trial court applied Article 863 in finding that an attorney fee award was appropriate in this case, but erred in failing to recognize that the article requires a finding of no justification for the legal claim asserted before attorney fees may be assessed. The record shows that the trial court weighed the evidence presented by the parties and determined that an award of attorney fees was appropriate in this situation where LNC filed a motion for contempt despite the lack of an independent expert witness who agreed with the opinion of LNC's owner that the Mayborn product violated the injunction. The trial court reasonably considered the responsibilities and burdens of the parties in the contempt proceeding in deciding to award attorney fees. Thus, LNC's contention that the trial court incorrectly applied Article 863 lacks merit.

Alternatively, LNC contends the attorney fee award is excessive. LNC argues that the amount of the award must be reduced because the trial court failed to consider relevant factors to determine the reasonableness of the attorney fees sought.

An award of attorney fees must be reasonable based upon the court's consideration of certain relevant factors. Riddle v. Premier Plaza of Monroe, LLC , 51,173 (La. App. 2 Cir. 2/15/17), 216 So.3d 170 ; Linoski v. Fleetwood Homes of Tx., # 12 , 38,338 (La. App. 2 Cir. 5/12/04), 873 So.2d 886. In determining the reasonableness of attorney fees, the factors to be considered include the extent and character of the work performed, the result obtained and the amount of money involved, the number of court appearances required, the difficulty of the legal issues, the fee customarily charged in the locality for similar services, the experience and skill of counsel and the court's own knowledge. Riddle, supra ; Linoski, supra . The trial court has much discretion in assessing an award of attorney fees. An attorney fee award will not be disturbed on appeal absent an abuse of discretion. Ryan v. Case New Holland, Inc. , 51,062 (La. App. 2 Cir. 12/22/16), 211 So.3d 611.

In the present case, the trial court considered the affidavits submitted by Mayborn's counsel regarding the rates charged and time expended in this contempt matter. LNC complains in its brief that Mayborn should have produced documentation in addition to the affidavits to establish that the time expended was necessary. However, this court has previously recognized that the district court may consider counsel affidavits in awarding reasonable attorney fees. See Bell Foundry Co. v. McCurry's Four Wheel Drive Ctr., Inc. , 46,553 (La. App. 2 Cir. 10/5/11), 75 So.3d 529 ; Jackson Square Towne House Home Assn, Inc. v. Hannigan , 38,239 (La. App. 2 Cir. 3/3/04), 867 So.2d 960 ; Walker, Tooke & Lyons, LLP v. Sapp , 37,966 (La. App. 2 Cir. 12/10/03), 862 So.2d 414. The affidavit of Mayborn's New York counsel, John Goetz, shows 204 hours of work and the affidavit of attorney Hayes shows 127.10 hours of work, for a total of 331.10 hours of work.

The record demonstrates that Mayborn's counsel filed multiple exceptions with supporting memoranda in response to LNC's original and amended contempt motions. Counsel also appeared in court at two hearings. In its written reasons concerning the award of attorney fees, the trial court stated that Mayborn's New York counsel possesses experience and knowledge regarding the issue of whether the subject product infringed on LNC's design in a manner prohibited by the injunction. Additionally, the trial court considered relevant factors in finding that the significant legal issues involved in this case, the extent of the legal work required and the competency of the attorneys supported the total number of hours expended as reflected in the affidavits of counsel. After reviewing the record, we cannot say the trial court erred in accepting as reasonable the total hours of work stated in the affidavits.

We note that the affidavits of counsel also include amounts designated as "costs," in the total amount of $ 9,836.10. However, no explanation regarding these expenses was presented in the affidavits or at the fee hearing. Based on this lack of information, we find that the trial court erred in including the amount of these costs in the award of attorney fees and we shall reduce the judgment accordingly.

LNC also contends the trial court erred in awarding the hourly rate charged by out-of-state counsel. LNC asserts the attorney fee award must be reduced.

Generally, in awarding attorney fees a reasonable hourly rate is calculated according to the prevailing market rates in the relevant community. McClain v. Lufkin Industries, Inc. , 649 F.3d 374 (5th Cir. 2011). In some circumstances, when fees are sought for an out-of-state specialist, the court must determine whether hiring the specialist was reasonable and whether the rates sought are reasonable for an attorney of his degree of skill and experience. McClain, supra . Where uncontroverted evidence demonstrates the reasonableness of hiring out-of-state counsel, the "home" rates of such counsel should be considered by the court in awarding attorney fees. McClain, supra .

After the fee hearing in this case, the trial court awarded the full hourly rate charged by Mayborn's out-of-state counsel. In its written reasons concerning attorney fees, the trial court found that the attorney fee award was not limited to the community rate because it was "undisputed" that no local attorneys practiced in the area of intellectual property litigation and that this case involved the related issue of whether Mayborn's product infringed on LNC's cup design. The record does not contain any affidavits showing that attorneys with such a specialty were available for this matter in the local community. Thus, there is no evidence to contradict a finding that Mayborn reasonably retained out-of-state counsel, whose experience and skill were noted by the trial court. Based upon this record, we cannot say the trial court abused its discretion in awarding the full hourly rate charged by Mayborn's out-of-state counsel. This assignment of error lacks merit.

Expert Witness Fee

LNC contends the trial court erred in awarding an excessive expert witness fee. LNC argues that the award must be reduced because the fee includes costs for work not done by the expert witness and material not placed into evidence.

Witnesses called to testify as experts shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La. R.S. 13:3666. Factors to be considered by the trial court in setting an expert witness fee include time spent in preparatory work for trial, the extent of the work performed, the time spent testifying and the knowledge and skill of the expert.

Boone v. Top Dollar Pawn Shop of Bossier, LLC , 50,493 (La. App. 2 Cir. 2/24/16), 188 So.3d 1093. Additional considerations include the helpfulness of the expert's report and testimony to the court and the complexity of the problem addressed by the expert. Boone, supra .

An expert witness is entitled to reasonable compensation for her court appearance and her preparatory work. The trial court is not required to set an expert witness fee at the amount charged by the expert. The trial court has great discretion in awarding expert witness fees. A trial court's assessment of costs will not be reversed on appeal absent an abuse of that discretion. Boone, supra .

In the present case, Dr. Cameron testified at the fee hearing that she charged $ 360 per hour for her time spent working on this case, as shown by the invoices issued by the consulting firm where she was employed. The invoices dated March and July 2017 list a total of 3 hours worked by Dr. Cameron. The September 2017 invoice lists a total of 5 hours designated as "prepare for trial" by Dr. Cameron. The final invoice, dated October 2017, lists a total of 29 hours of work by Dr. Cameron, including two separate entries of 8 hours each designated only as "prepare for trial," another 5 hours identified as "prepare for trial" and an additional 8 hours designated as "attend trial." The invoices also include numerous time entries for other employees of the consulting firm who performed work related to the case, but who did not testify as experts. Dr. Cameron stated that these persons performed work such as research or preparing and editing a video that simulated the operation of different valves. Dr. Cameron testified that a number of images taken from the video were introduced into evidence at the contempt hearing, but the video itself was not played in court.

The trial court found that the rate of $ 360 per hour charged by the expert and the total number of hours expended by the expert for preparing and testifying were reasonable. However, we note that the purpose of an expert witness fee is to fairly compensate the expert witness for her court appearance and her preparatory work. Thus, to the extent the invoices reflect charges for work done by persons other than Dr. Cameron, we find that the trial court abused its discretion in including those costs in the award of expert witness fees. Consequently, we shall amend the judgment to reduce the award of expert witness fees to the amount of $ 13,320, which reflects the 37 hours of time expended by Dr. Cameron.

Answer

Mayborn answers the appeal seeking additional attorney fees for work in defense of the appeal. The appellate court has discretion as to whether or not to award additional attorney fees for defending an appeal. Wilks v. Ramsey Auto Brokers, Inc. , 48,738 (La. App. 2 Cir. 1/15/14), 132 So.3d 1009. Considering that LNC was successful on appeal in having the awards of attorney fees and expert witness fees partially reduced, we decline to award Mayborn additional attorney fees for this appeal.

CONCLUSION

For the foregoing reasons, the trial court's judgment is hereby amended to award the reduced amount of $ 162,785 in attorney fees and to award the reduced amount of $ 13,320 in expert witness fees. The judgment is otherwise affirmed. Costs of this appeal are assessed to the appellant, Luv N' Care, LTD.

AMENDED AND AFFIRMED AS AMENDED.


author: BLEICH, J. (Pro Tempore )

text:
    SUCCESSION OF R.B. ELLIOTT
    No. 52,595-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    LINDA ELLIOTT MURPHY, PAULA MAE ELLIOTT, In Proper Person, Appellants
    H. LYNWOOD LAWRENCE, JR., Counsel for Appellee, Shu Holt Elliott
    Before WILLIAMS, GARRETT, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

Appellants, Linda Elliott Murphy and Paula Mae Elliott, have appealed from the trial court's judgment dismissing their petition to annul a will executed by their father, R.B. Elliott, based upon the court's finding that the May 20, 2015, will was valid under La. C.C. art. 1577. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

R.B. Elliott died on January 6, 2016, in Bossier City, Louisiana. On January 28, 2016, his surviving spouse, Shu Holt Elliott, filed a petition to probate a will executed by Mr. Elliott on May 20, 2015, and to be put in possession of the estate. On February 2, 2016, the will was admitted for probate and a judgment of possession was rendered by the trial court. On March 30, 2016, Mr. Elliott's daughters, Linda Elliott Murphy ("Linda") and Paula Mae Elliott ("Paula"), filed a petition to annul the probated testament, asserting that because Mr. Elliott was unable to read, the will was null because it failed to comply with the provisions of La. C.C. art. 1579.

Trial began on August 8, 2017, and concluded on December 18, 2017. The trial court rendered its "Judgment with Reasons" on January 23, 2018, upholding the validity of the May 20, 2015, will. The trial court specifically found that: Mr. Elliott was capable of reading the May 20, 2015, will he had Attorney Joey Greenwald prepare; the May 20, 2015, will met the form requirements of La. C.C. art. 1577, and thus was not required to meet the additional requirements of La. C.C. art. 1579 ; and, the May 20, 2015, will of Mr. Elliott was not the product of fraud, duress, or undue influence. It is from this judgment that Linda and Paula, Mr. Elliott's daughters, have appealed.

DISCUSSION

Appellants argue that the trial court erred in failing to find that they presented clear and convincing evidence of Mr. Elliott's legal blindness and inability to read the will without the use of magnification in addition to his eyeglasses. According to Appellants, because the will in this case was a notarial will under La. C.C. art. 1577, and Mr. Elliott was unable to read, the will's failure to comply with the additional requirements of La. C.C. art. 1579 makes the May 20, 2015, will a nullity.

According to Appellee, the argument made by Appellants that Mr. Elliott was unable to read the May 20, 2015, will is based "almost solely" on lay testimony.

Appellants have ignored the testimony of Dr. Wilson Baber, the sole expert witness in this case, who was the only person who could determine the ability (or lack thereof) of Mr. Elliott to read at the time of the will's execution.

Applicable Legal Principles

There are two forms for wills in Louisiana: olographic and notarial. La. C.C. art. 1577 prescribes the form requirements for the notarial testament:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence, the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of __________, _____."

La. C.C. art. 1579 provides additional requirements where the testator is unable to read, as follows, in pertinent part:

When a testator does not know how to read, or is physically impaired to the extent that he cannot read, whether or not he is able to sign his name, the procedure for execution of a notarial testament is as follows:
(1) The written testament must be read aloud in the presence of the testator, the notary, and two competent witnesses. The witnesses, and the notary if he is not the person who reads the testament aloud, must follow the reading on copies of the testament. After the reading, the testator must declare or signify to them that he heard the reading, and that the instrument is his testament. If he knows how, and is able to do so, the testator must sign his name at the end of the testament and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: "This testament has been read aloud in our presence and in the presence of the testator, such reading having been followed on copies of the testament by the witnesses [, and the notary if he is not the person who reads it aloud,] and in our presence the testator declared or signified that he heard the reading, and that the instrument is his testament, and that he signed his name at the end of the testament and on each other separate page; and in the presence of the testator and each other, we have subscribed our names this ___ day of __________, _____."

A notarial testament does not need to be proved. La. C.C.P. art. 2891 ; In re Succession of Lanasa , 06-561 (La. App. 5 Cir. 12/27/06), 948 So.2d 288. Upon production of the testament, the court shall order it filed and executed and this order shall have the effect of probate. Id. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1573 ; In re Succession of Lanasa, supra. In an action to annul a notarial testament, the plaintiff always has the burden of proving the invalidity of the testament. La. C.C.P. art. 2932(B).

A testator's ability to read is an element of testamentary capacity, not authenticity or formality. In re Succession of Lawler , 42,940 (La. App. 2 Cir. 3/26/08), 980 So.2d 214, writ denied , 08-1117 (La. 9/19/08), 992 So.2d 939 ; In re Succession of Lanasa , supra ; In re Succession of Young , 03-1233 (La. App. 3 Cir. 3/3/04), 867 So.2d 139 ; In re Succession of Graham , 01-676 (La. App. 5 Cir. 11/27/01), 803 So.2d 195. The capacity to make a will is tested at the time the will is made. La. C.C. art. 1471 ; Succession of Young , 96-1206 (La. App. 3 Cir. 3/5/97), 692 So.2d 1149. A party is presumed to have testamentary capacity, and the opponent must put forth clear and convincing evidence of incapacity in order to defeat this presumption. Succession of Lyons , 452 So.2d 1161 (La. 1984) ; Succession of Lawler, supra. ; Succession of Young, supra. Whether a testator has the ability to read is a question of fact. In re Succession of Lanasa, supra ; In re Succession of Graham, supra. Absent manifest error, the trial court's finding will not be overturned on appeal. Succession of Lawler, supra ; In re Succession of Young, supra.

The following is excerpted from the trial court's written reasons for judgment:

At issue in this matter is determination of the validity of the May 20, 2015 Last Will and Testament of R.B. Elliott ("Mr. Elliott"), either because it was not properly executed due to Mr. Elliott's alleged inability to read or because it was the product of undue influence. Mr. Elliott was the father of Paula Elliott ("Paula") and Linda Elliott ("Linda") from a previous marriage, and after remarrying their mother he then, on July 24, 2015, married Shu Holt. The parties have all been intertwined in each other's lives for quite some time.
Mr. Elliott and his first wife, Lieselotte ("Lita"), the mother of Paula and Linda, apparently attempted to resolve their community property issues and went so far as to remarry to address military retirement benefits. Lita passed away on April 24, 2015. Prior to Lita's death, Paula and Linda instituted an interdiction proceeding against Mr. Elliott.... The Court does not discount the significance of the fact that immediately following an attempted interdiction proceeding that Mr. Elliott had a new will drafted and signed within a month. The Court is satisfied that Mr. Elliott considered his obligations to his first wife and mother of his children (and therefore his children as well) to have been satisfied and that he reasonably decided to replace his prior will dated October 6, 2011. That testament named Lita as principal beneficiary with Linda and Paula as successor beneficiaries. The May 20, 2015 testament in question replaces Lita with Shu Holt, and leaves Linda and Paula and successor legatees. Following the death of Lita, the conclusion of the interdiction proceeding, and the drafting of his new will, Mr. Elliott married Shu Holt in July 2015, and Mr. Elliott passed away January 6, 2016.
The testimony adduced at trial indicates that Mr. Ellitott desired to direct his remaining separate property to Shu Holt (whom he married two months after execution of the testament in question). To accomplish that end, he utilized the same attorney, Joe Greenwald, who represented him during the interdiction proceeding. Mr. Greenwald testified at trial. In addition to Mr. Greenwald's testimony regarding Mr. Elliott and the process of preparing and executing the will, there was also introduced limited medical records of Mr. Elliott regarding his vision. No experts were called to testify at the trial but introduced as Joint Exhibit 1 was the deposition of Wilson Baber, M.D., who was agreed by counsel to be an expert in the field of Ophthalmology with a specialty in Vitreal retinal surgery.
Paula and Linda contend that Mr. Elliott's testament is a nullity because it fails to comply with stringent requirements of Louisiana Civil Code article 1579 for a last will and testament of a testator unable to read to be effective. Mr. Greenwald testified it was his practice to read the will aloud with every client. Regardless of whether Mr. Greenwald read the May 2015 will he prepared, it does not contain the required attestation clause confirming it was read aloud, as required by La. C.C. art. 1579. Therefore, if there was a requirement that Mr. Elliott's testament of May 20, 2015, comply with the requirements of La. C.C. art. 1579, it clearly does not. However, failing to meet the requirements this article is not fatal to the testament.
Based upon the pleadings and limited medical records introduced at trial, it would almost seem a foregone conclusion Mr. Elliott could not read, despite Mr. Greenwald's testimony about his numerous interactions with Mr. Elliott in his office and no appreciation of any such inability on his behalf. What is of particular significance in reaching a determination on this matter is the deposition testimony of the Ophthalmologist Dr. Baber, who treated Mr. Elliott for a number of years.
Of particular significance to the Court was depth of the discussion regarding "legally blind" and whether or not that meant Mr. Elliott was completely unable to read in 2015 when the will was prepared. It is worth noting that counsel for Plaintiffs points out that it was in 2008 that Mr. Elliott would have been "legally blind" but no mention has ever been made of the fact Mr. Elliott executed a prior will in favor of Lita with Paula and Linda as successor legatees in December 11, 2011, the very will they now seek to have revived with a declaration the 2015 will was a nullity.
Dr. Baber testified that the criteria for determination of legally blind [status] and its implications in driving vehicles and the like is not determinative of whether Mr. Elliott could read with some type of assistance. Prescription eyewear, a magnifying glass, and other tools are available to assist those with similar diagnosis (sic) as Mr. Elliott to read. When asked, Dr. Baber confirmed Mr. Elliott's signature on the testament in 2015 was similar to documents signed by Mr. Elliott over a decade earlier in Dr. Baber's office. When Dr. Baber was questioned by Mr. Cox and Mr. Lawrence as to [a] definitive statement on whether Mr. Elliott would not have been able to read the testament on the date he signed it, Dr. Baber could not offer an opinion. Dr. Baber also did not agree with conclusions reached by others regarding Mr. Elliott's abilities. As the treating physician and expert in the field of Ophthalmology, Dr. Baber's testimony was compelling. Dr, Baber's testimony could have been that based upon his treatment of Mr. Elliott not only did he meet the requirement of being "legally blind" but under no circumstances could he read a document. Dr. Baber's testimony was nothing close to such a declaration and he is deemed fully credible and capable of rendering and supporting his own conclusion and opinions, and did so.
There was no evidence or testimony that on May 20, 2015, during Mr. Elliott's visit to Mr. Greenwald's office that he was unable to read. [The will] did not have to be read in its entirety to him, but Mr. Greenwald's testimony is that it was, and it appears to the satisfaction of the court to be an accurate and legally effective expression of his last wishes.
Considering the evidence and testimony adduced, it is the opinion of the Court that Mr. Elliott was capable of reading the last will and testament he directed Mr. Greenwald to prepare, and further that the document meets the requirements of Louisiana Civil Code article 1577 as to form. As such, there is no requirement the instrument meet any additional requirements provided in La. C.C. art. 1579.

This case is similar to that of In re Succession of Young, supra. In that case, 867 So.2d at 141, the trial and appellate courts both noted that the testator's treating optometrist would not state that it was impossible for the testator to have read her will as written, explaining that she would have had to have some type of magnifier to do so. Specifically, the trial court observed, "I ... find that number one, [the testator] was able to read. She knew how to read. By the only expert testimony received, Dr. Christian stated that it was not impossible with magnification devices, television or otherwise that she could read." Id.

We have reviewed this record in its entirety and, while this is a very close case, we cannot say that the trial court's determination that Mr. Elliott could physically read at the time he executed his will is manifestly erroneous, keeping in mind that Appellants had the burden of establishing that he could not do so by clear and convincing evidence. The evidence presented by Appellants that contradicted the evidence presented by Shu Elliott did not meet this stringent burden. As noted in La. C.C. art. 1577, comment (f), article 1577does not require that the testator actually read the testament at the time of its execution . (Emphasis added).

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to Appellants, Linda Elliott Murphy and Paula Mae Elliott.

      Although not assigned by Appellants as error, we do not find that the trial court was clearly wrong in its finding of no undue influence.