author: WICKER, J.

text:
    Raul-Alejandro RAMOS v. Ebony D. Wright ALEXANDER and Frank "Nitti" Alexander
    NO. 18-CA-355
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    PLAINTIFF/APPELLANT, RAUL-ALEJANDRO RAMOS In Proper Person
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WICKER, J.

Appellant, Raul Alejandro Ramos, seeks review of the April 11, 2018 judgment from the Twenty-Ninth Judicial District Court denying his motion for default judgment and dismissing with prejudice claims raised in his Petition to Stop the Extortion and Fraud . The trial court denied Appellant's motion for default judgment and dismissed his petition citing his failure to address any evidence in support of any of his claims made in his petition. For the following reasons, we vacate the trial court's judgment dismissing Appellant's petition and remand this matter for further proceedings.

FACTS

This matter arises out of a child support obligation imposed upon Appellant in support of his minor female child with whom he avers Appellees have prevented him from interacting.

On March 30, 2017, Appellant filed a Petition to Stop the Extortion and Fraud with the Twenty-Ninth Judicial District Court. Defendants/Appellees, Ms. Ebony Wright Alexander (Ms. Wright) and Mr. Frank "Nitti" Alexander, failed to answer Appellant's petition; thus, Appellant filed a Motion on the Pleadings on July 31, 2017. The trial court issued an order denying Appellant's motion on August 3, 2017. In its denial, the trial court suggested that Appellant seek legal counsel or self-remedy errors contained in his motion. The trial court further encouraged Appellant to review the Louisiana Code of Civil Procedure's provisions concerning service of process.

On August 21, 2017, Appellant submitted a Request of Service with the St. Charles Parish Clerk of Court upon Appellees. On November 9, 2017, Appellant re-filed his Motion on the Pleadings with the trial court, which set a hearing to show cause for January 22, 2018. On the 19th of January, Ms. Wright submitted a handwritten letter to the trial court requesting a continuance due to work hardship. Appellant objected to the continuance at the January 22nd hearing, and the court proceeded with the hearing on Appellant's motion. In a judgment rendered January 23, 2018, the trial court denied Appellant's motion for judgment on the pleadings, citing Appellees' failure to provide an answer to Appellant's petition as a barrier to Appellant's ability to pursue a motion for judgment on the pleadings. Through its written Reasons for Judgment , the trial court informed Appellant that the only viable recourse available to him was a Preliminary Default and default judgment.

Appellant filed a Motion for Preliminary Default Judgment which was filed stamped by the Clerk's office on March 6, 2018. However, on February 23, 2018, the trial court entered a preliminary default in favor of Appellant and scheduled a hearing to show cause for April 6, 2018. Three days prior to the scheduled April 6th hearing, Appellee, Ms. Wright, submitted a second, hand-written letter to the court requesting a continuance. The court denied Ms. Wright's request and on April 6, 2018, the trial court allowed Appellant to present evidence in support of his Petition to Stop the Extortion and Fraud . On April 11, 2018, the trial court issued both a judgment and its written Reasons for Judgment as to Appellant's Petition to Stop the Extortion and Fraud . Within its reasons, the trial court outlined seven areas in which it believed Appellant sought relief and addressed each area in turn.

After its review of the record, the trial court held that Appellant failed to meet his burden of proof on every claim for relief; therefore, the court denied his Motion for Preliminary Default Judgment and dismissed his petition with prejudice and at his cost.

DISCUSSION

Default Judgment

This case is before us on review of the trial court's denial of Appellant's motion for default judgment and dismissal of Appellant's Petition to Stop the Extortion and Fraud with prejudice upon finding that Appellant failed to establish a prima facie case to support his request for a judgment of default. An appellate court's review of a judgment of default is generally governed by the manifest error standard of review. Arias v. Stolthaven New Orleans, L.L.C. , 08-1111 (La. 5/5/09), 9 So.3d 815, 818.

Articles 1701 and 1702 of the Louisiana Code of Civil Procedure sets forth the procedure for obtaining a judgment of default. A judgment of default may be entered against a properly served defendant who fails to answer or file other pleadings within the time prescribed by law or the court. La. C.C.P. art. 1701. A judgment of default is sometimes referred to as a "preliminary default." ASI Fed. Credit Union v. Leotran Armored Sec., LLC , 18-341 (La. App. 5 Cir. 11/07/18), 259 So.3d 1141, 2018 WL 5813588, 2018 La. App. LEXIS 2209, citing Arias , 9 So.3d at 819.

In order to confirm a preliminary default, proof of the demand "sufficient to establish a prima facie case" must be admitted on the record. La. C.C.P. art. 1702(A). A prima facie case must be established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Apex Realty, LLC v. Vidrine's of Gonzales, LLC , 12-530 (La. App. 5 Cir. 3/13/13), 112 So.3d 301. The proof of the demand required by the Code of Civil Procedure is dependent upon the nature of the obligation (i.e., whether it is conventional or delictual). La. C.C.P. art. 1702(B). When a demand is based on a delictual obligation, as in the present case, plaintiff's testimony may be supplemented with corroborating evidence such as affidavits and exhibits. La. C.C.P. art. 1702(B)(2) ; Arias , 9 So.3d at 822 n. 11.

Thus, to seek the confirmation of a judgment of default, "the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits." Arias , 9 So.3d at 820. The standard of review for a trial court's evidentiary ruling is abuse of discretion, meaning the trial court's ruling will not be disturbed unless it is clearly erroneous. Gorman v. Miller , 12-0412 (La. App. 1 Cir. 11/13/13), 136 So.3d 834, 840.

After an in-depth review of the record, we find that the trial court did not abuse its discretion in finding that Appellant failed to meet his burden of proving a prima facie case against defendants. Specifically, the trial court found that Appellant failed to submit any tangible, documented evidence during the April 6th hearing to corroborate his testimony and the allegations made in his petition. For example, Appellant alleges in his petition that he made several attempts to contact the daughter he shares with Ms. Wright but was prevented from speaking with her because of the actions of the Appellees; yet, Appellant failed to produce phone logs evidencing his attempts to contact his daughter and his subsequent discussions with Appellee, Mr. Frank Alexander. Further, Appellant failed to produce any affidavits from individuals who may have witnessed the threats and harassment he alleges he endured from Appellees. Finally, Appellant failed to produce documentation evidencing Appellees' use of Appellant's daughter, and his desire to interact with her, as a means to obtain money from him. Therefore, the trial court did not abuse its discretion in denying Appellant's motion for preliminary default. However, for the reasons discussed below, we find that the trial court erred in dismissing Appellant's Petition to Stop the Extortion and Fraud with prejudice.

Dismissal of Appellant's Petition

A trial court may not dismiss a lawsuit with prejudice at a hearing to confirm a default judgment. Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co. , 10-0626 (La. App. 4 Cir. 10/20/10), 51 So.3d 129 ; Band v. First Bankcard Ctr. , 94-3062 (La. 2/9/95), 650 So.2d 738 (per curiam) (the reversal of a default judgment does not result in a dismissal, with prejudice, of plaintiff's claims).

In cases in which the trial court has improperly dismissed a petition with prejudice, the appellate court has consistently remanded the matter for further proceedings. See Evans v. Jolly , 17-159 (La. App. 5 Cir. 10/25/17), 229 So.3d 650 (vacated the default judgment and remanded the matter for further proceedings); Griffin v. Pecanland Mall Assoc. Ltd ., 535 So.2d 770 (La. App. 2nd Cir. 1988) ; Saacks v. Target Corp. , 10-819 (La. App. 5 Cir. 1/25/11), 56 So.3d 450 ; Louisiana NBOA Constr. & Self Insurers Co. v. Liu , 30,041 (La. App. 2 Cir. 12/10/97), 707 So.2d 1002, 1003 (upholding the city court's ruling that plaintiff presented insufficient evidence to establish its claim, but reversing the judgment dismissing the suit for the unsuccessful confirmation of default and remanding the matter for further proceedings); Gorman v. Miller , 12-0412 (La. App. 1 Cir. 11/13/13), 136 So.3d 834, 839 (reversed a trial court's judgment dismissing plaintiff's suit with prejudice finding a trial court is unable to dismiss a plaintiff's suit on its own motion when the plaintiff fails to present sufficient evidence to confirm a preliminary default judgment and no party present at the confirmation hearing moves for a dismissal of the plaintiff's suit).

The Louisiana Code of Civil Procedure distinguishes a judgment of default from a judgment of dismissal in that a judgment of default is against the defendant, see La. C.C.P. arts.731-743, and the judgment of dismissal is against the plaintiff, see La. C.C.P. arts. 681 - 700 ; see also Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co. , 10-0626 (La. App. 4 Cir. 10/20/10), 51 So.3d 129, 135. The Code further sets forth the grounds for voluntary and involuntary dismissal of a demand. In article 1671 of the Louisiana Code of Civil Procedure, a plaintiff is allowed to dismiss his or her own demand without prejudice when he or she has paid costs associated with his or her claim and the defendant has not yet appeared. This is referred to as a voluntary dismissal. However, an involuntary dismissal may occur at the application of any party or by the court, on its own motion. See La. C.C.P. art. 1672. The court's ability to dismiss a demand on its own motion is limited to the failure of all parties to appear on the day set for trial. Id. Even in this instance, the court is only permitted to dismiss the action without prejudice. Id.

The Fourth Circuit in Dahan provides an adequate summary of this position as it states:

Because there is no other party present at the confirmation hearing to move for dismissal, a trial court is effectively prevented from dismissing a plaintiff's case on the court's own motion at the close of the plaintiff's evidence at a confirmation hearing. Therefore, the trial court's rendering on its own motion a judgment of dismissal against the plaintiffs at the conclusion of the conclusion of their evidence is error.
* * *
If a trial court is not convinced that a plaintiff has made a prima facie case at the confirmation of the judgment of default hearing, it should refuse to confirm the default judgment, but not dismiss the case.

51 So.3d at 136.

In the present matter, we find that the trial court was correct in holding that Appellant had not produced sufficient, tangible evidence to meet his prima facie burden satisfying his claim for a default judgment. However, we find that the trial court erred when it dismissed, with prejudice, "any and all claims brought" by Appellant against Appellees. In doing so, the trial court dismissed Appellant's demand based on his failure to produce sufficient evidence to warrant a default judgment during a hearing to show cause; thus exceeding his authority to dismiss the lawsuit as this right has been reserved by the legislature for parties who appear before the court. Therefore, we affirm the trial court's denial of the motion for default, but reverse the judgment of the trial court in so far as it dismissed Appellant's petition with prejudice.

DECREE

The trial court's judgment denying the motion for default is affirmed, and dismissing the petition with prejudice is reversed, and the matter is remanded to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      Ms. Wright is the biological mother of the minor child.

      In its January 23, 2018 written Reasons for Judgment , the trial court took judicial notice that the proper title of Appellant's Motion on the Pleadings is Motion for Judgment on the Pleadings .

      We take judicial notice that Appellant submitted his Motion for Preliminary Default Judgment to the trial court prior to February 22, 2018. The Deputy Clerk's signature on his motion establishes that a response to Appellant's motion had not yet been filed by Appellees as of 1:00 p.m. on that date. On February 23, 2018, the trial judge granted and entered Appellant's motion, as evidenced by the trial court's record cover. The parish clerk then time stamped and dated Appellant's motion for March 6, 2018, one day after the trial judge signed the order attached to Appellant's motion.

      Ms. Wright failed to appear for the April 6, 2018 hearing.

      The trial court looked to the prayer for relief in paragraph 43 of Mr. Ramos' petition and summarized his petition in the following manner:
      In a nutshell, said paragraph 43 shows that plaintiff seems to be seeking the following:
      1) Return of all monies previously paid by him to Ms. Ebony Wright Alexander for child support;
      2) The claim for all arrears in outstanding child support and future child support payments be "vacated";
      3) Plaintiff's child support obligation be "dropped";
      4) Plaintiff's driver's license be reinstated;
      5) That the minor child at issue herein be declared to be a child of the union between defendants, and that plaintiff be released from said parentage;
      6) Damages for the loss of plaintiff's child, for the pain and suffering claimed to be caused to plaintiff by defendants' actions;
      7) To be left alone.

      Article 1671 provides:
      A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

      Article 1672 provides:
      A. (1) A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.
      (2) The court, on its own motion, may dismiss an action without prejudice when all the parties thereto fail to appear on the day set for trial; however, when a case has been dismissed pursuant to this provision and it is claimed that there is a pending settlement, either party may reinstate the suit within sixty days of receipt of the notice of dismissal, and any cause of action which had not prescribed when the case was originally filed shall be fully reinstated as though the case had never been dismissed.
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
      C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    Richard PALMER v. UV INSURANCE RISK RETENTION GROUP, INC., UV Logistics, LLC, and Michael Lewis Smith
    Jeannie Breaux v. UV Insurance Risk Retention Group, Inc., UV Logistics, LLC, and Michael Lewis Smith
    NO. 18-CA-404 NO. 18-CA-404 C/W 18-CA-405
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD PALMER, Donald J. Cazayoux, Jr., J. Lane Ewing, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL LEWIS SMITH, UV LOGISTICS, LLC, AND UV INSURANCE RISK RETENTION GROUP, INC., Bryan D. Scofield, James T. Rivera
    COUNSEL FOR DEFENDANT/APPELLEE, AMERICAN ZURICH INSURANCE COMPANY, Michael D. Peytavin
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

In this personal injury action, plaintiff appeals the trial court's judgment, rendered in accordance with the jury's verdict, dismissing his claims against all defendants with prejudice. For the following reasons, we affirm.

STATEMENT OF THE CASE

This case arises from a motor vehicle accident that occurred in St. James Parish on November 24, 2014. According to plaintiff, Richard Palmer, he was traveling eastbound on LA-70 over the Sunshine Bridge when traffic congestion caused him to come to a stop. Suddenly, a pickup truck driven by defendant, Michael Smith, struck the vehicle behind Mr. Palmer, which in turn struck Mr. Palmer's vehicle. At the time of the accident, Mr. Smith was working for UV Logistics, L.L.C. ("UV Logistics"), which was insured by UV Insurance Risk Retention Group, Inc. ("UV Insurance") and American Zurich Insurance Company ("AZIC").

On November 5, 2015, Mr. Palmer filed this lawsuit against Mr. Smith, UV Logistics, and UV Insurance, asserting that he sustained serious back, leg, and hip injuries as a result of this accident. On January 23, 2017, Mr. Palmer filed a First Supplemental and Amending Petition adding AZIC as a defendant.

On January 26, 2017, Mr. Smith and UV Logistics filed a "Stipulation of Liability" into the record, indicating that they accepted full responsibility and liability for the motor vehicle accident that occurred on November 24, 2014. Mr. Smith and UV Logistics indicated that they would continue to contest all other issues, such as whether Mr. Palmer sustained any injuries as a result of the accident.

This matter proceeded to a jury trial, which began on November 14, 2017, and concluded on November 17, 2017. At the conclusion of trial, the jury returned a verdict in favor of defendants, finding that Mr. Palmer did not meet his burden of proving that he was injured as a result of the November 24, 2014, motor vehicle accident. On December 20, 2017, the trial judge signed a judgment in accordance with the jury's verdict, dismissing Mr. Palmer's claims against all defendants with prejudice. Mr. Palmer appeals.

LAW AND DISCUSSION

On appeal, Mr. Palmer argues that he did not receive a fair and impartial trial. He sets forth five assignments of error, claiming that the trial court's judgment rendered in accordance with the jury's verdict should be overturned.

In his first assignment of error, Mr. Palmer argues that the trial court abused its discretion by failing to strike four prospective jurors for cause. He argues that the four prospective jurors, Charles Core, Guy Schexnayder, Chad Bourgeois, and Jordan O'Bryant, all indicated that they were opposed to lawsuits for personal injuries, three of them indicated that they would not be able to apply the preponderance of the evidence standard to the facts of this case, and two of them acknowledged that they would have difficulty being fair. Mr. Palmer contends the responses of these prospective jurors, when viewed in context of the overall voir dire examination, were disqualifying, and his challenges for cause should have been granted. We note that none of these four prospective jurors was seated on the jury, as plaintiff used peremptory challenges to strike them.

Defendants respond that the challenges for cause were properly denied. They contend that plaintiff's counsel purposefully attempted to put a different standard of proof than a preponderance of the evidence in the prospective jurors' minds. They argue that the responses from prospective jurors of which plaintiff now complains were the result of plaintiff's counsel's continued questioning about how they felt about the preponderance of the evidence standard. Defendants assert that plaintiff's counsel insinuated that the prospective jurors had the option of applying a different standard of review than the standard instructed by the court.

La. C.C.P. art. 1765(2) provides that a juror may be challenged for cause when he "has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial." A trial judge is vested with broad discretion in ruling on challenges for cause, and the appellate court should not disturb its ruling unless the voir dire as a whole indicates an abuse of discretion. Riddle v. Bickford , 00-2408 (La. 5/15/01), 785 So.2d 795, 801 ; Simms v. Progressive Ins. Co. , 38,804 (La. App. 2 Cir. 9/29/04), 883 So.2d 473, 479, writ denied , 04-2871 (La. 1/28/05), 893 So.2d 78.

If a prospective juror is able to state to the trial court's reasonable satisfaction that he could render an impartial verdict according to the law and evidence, a challenge for cause to that juror is properly denied. Scott v. American Tobacco Company , 01-2498 (La. 9/25/01), 795 So.2d 1176, 1182. However, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment accordingly may be reasonably implied. Id. , citing State v. Hallal , 557 So.2d 1388, 1390 (La. 1990). A prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and the denial of such a challenge is not an abuse of discretion, if after further questioning the prospective juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. State v. Castillo , 13-552 (La. App. 5 Cir. 10/29/14), 167 So.3d 624, 639, writs denied , 14-587 (La. 11/7/14), 152 So.3d 172 and 14-2567 (La. 9/18/15), 178 So.3d 145.

Shortly after questioning of the prospective jurors began, the trial judge stated:

At the conclusion of the evidence, I will instruct you on the law applicable to this case. You must apply the law as I instruct you to the facts as you find them.

The trial judge then asked:

Will you follow the law as I give it to you? Does anyone here think they cannot follow the law once I give the instructions?

The transcript reflects that none of the prospective jurors indicated that he or she could not follow the law as instructed.

Later, during his questioning of prospective jurors in the first panel, plaintiff's counsel noted that the burden of proof in criminal cases is "beyond a reasonable doubt" and asked how the prospective jurors felt about the burden of proof in this civil matter being "only more probably than not" and "if we're right 51 percent on a particular issue, then we are supposed to win on that issue." After questioning individual jurors regarding how they felt about this standard, at a bench conference, counsel for AZIC complained that he believed plaintiff's counsel was "putting in the jurors' minds a different standard of proof" and asking them if they would prefer "beyond a reasonable doubt." The trial court then stated to the jury:

And, ladies and gentlemen, I'm going to go ahead and instruct you at this time. [Plaintiff's counsel] has asked you a few questions about the burden of proof. At the conclusion of this trial, I will give you an instruction as to what the law is that you must follow. The question is, 'Are you able to follow the law as I give it to you?' Even though your personal preferences may be different, do you believe that you can follow the law?
Is there anyone here that feels like your feelings are so strong that you would not follow the law as I give it to you? Okay. All right. Thank you.

The record does not reflect that any prospective juror indicated that he could not follow the law as instructed.

With regard to prospective juror Guy Schexnayder, plaintiff argues that he should have been excused for cause, because he stated that he would need a "90 percent" level of proof. The record reflects that Mr. Schexnayder was asked how he felt about the standard of proof being "only more probably than not," and he initially replied that he did not know. When asked if he believed any lawsuits are legitimate, Mr. Schexnayder replied, "it all depends." When plaintiff's counsel questioned him further, Mr. Schexnayder stated that it was "not in [his] build" to file a lawsuit. In response to plaintiff's counsel's questioning regarding the standard of proof, Mr. Schexnayder at one point agreed with counsel that he would need "90 percent." However, Mr. Schexnayder also replied, "it depends," when plaintiff's counsel asked, "[i]f we prove 51 percent...you probably wouldn't be able to do that?" When the trial court asked if they could follow the law as provided to them by the trial court, "[e]ven though [their] personal preferences may be different," Mr. Schexnayder and the other prospective jurors did not indicate that they could not follow the law as instructed.

Our review of all of Mr. Schexnayder's responses during voir dire shows that while Mr. Schexnayder may prefer a higher standard of proof, he agreed that he would be able to follow the law as instructed by the trial court. Accordingly, based on his responses as a whole, we cannot say the trial court abused its broad discretion in denying this challenge for cause.

With regard to prospective juror Charles Core, Mr. Palmer asserts that the trial court should have granted his challenge for cause, because while he expressly acknowledged that he would follow the law, he could not reconcile the fact that Mr. Palmer would not be held to a higher standard of proof, such as beyond a reasonable doubt.

Mr. Core indicated that he was in the insurance industry for over twenty years. When asked by plaintiff's counsel whether he felt that there were a lot of frivolous lawsuits, Mr. Core agreed and added that they "hurt the legitimate ones." While Mr. Core also expressed some skepticism about rear-end collisions with little property damage, he indicated that each case should be reviewed individually. Mr. Core stated that he had never been on a jury before and he had just assumed that a case had to be proven beyond a reasonable doubt. He also stated that it would be hard to make a decision "on 51 percent proof" and agreed that he would need greater than 51 percent. However, the trial court asked the prospective jurors if they could follow the law as given by the trial court and the panel agreed. In response to further questioning by plaintiff's counsel, Mr. Core indicated that it would be tough, but he would "follow the law, of course, and [he] could make a decision." He also stated, "I'd have to see the facts of the case."

Mr. Core's responses suggest that while he believes there are many frivolous lawsuits, he also believes there are legitimate ones and that the facts of each case must be considered individually. Considering Mr. Core's responses during voir dire questioning as a whole, we cannot say that the trial court abused its broad discretion by denying the challenge for cause as to Mr. Core.

With regard to prospective juror Chad Bourgeois, plaintiff argues that he should have been excused for cause because he viewed this personal injury case in a negative light from the beginning and he indicated that Mr. Palmer would have to prove his case by more than 51 percent. In response to questioning by plaintiff's counsel, Mr. Bourgeois indicated that he believes there are many frivolous lawsuits. He stated that he did not know if he could personally file a civil lawsuit for injuries even if he was paralyzed. When asked by plaintiff's counsel about the standard of proof, Mr. Bourgeois said, "It's either 'yes' or 'no,' " and "You've got to be totally convinced in my mind." However, it was shortly after this exchange that the trial court explained to the prospective jurors that the court would instruct the jurors as to the law they must follow, and asked if anyone's feelings were so strong that he could not follow that law as given to the jury. As with the other prospective jurors, Mr. Bourgeois did not indicate that he could not follow the law as instructed. Considering all of Mr. Bourgeois' responses during voir dire , we find no abuse of the trial court's discretion in denying this challenge for cause as to Mr. Bourgeois.

Finally, with regard to prospective juror Jordan O'Bryant, during questioning by plaintiff's counsel, he indicated that a fraudulent lawsuit had been filed against him. However, he also acknowledged that he agreed "with legitimate ones." He also stated that it was "not in [his] upbringing" to file a lawsuit and that it would be "hard to agree with." However, in response to plaintiff's counsel's question as to whether he could "go with" plaintiff if he believed what plaintiff alleged was more probable than not, he replied, "Yeah." Based on our review of Mr. O'Bryant's voir dire responses, the trial court did not abuse its discretion by denying the challenge for cause as to Mr. O'Bryant.

The trial court is afforded broad discretion in ruling on challenges for cause, because the trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the prospective jurors, which are not apparent at the appellate level when reviewing the record. Castillo , 167 So.3d at 639-640. Considering our review of the entire voir dire proceedings and all of the responses of these prospective jurors, we cannot say that the trial court abused its discretion in denying these challenges for cause. Although some prospective jurors' responses evidenced a preference for a higher burden of proof, in response to plaintiff's counsel's questions regarding how they felt about the burden of proof, each one of them acknowledged that they could follow the law as provided by the trial court. This assignment of error is without merit.

In his second assignment of error, Mr. Palmer asserts that the trial court erred by allowing testimony from Mr. Palmer's former wife for the sole purpose of impeachment and because it was protected by the spousal confidential communications privilege. Defendants respond that they did not introduce the statements at issue at trial and further, even if they had, the statements were not confidential communications.

Prior to trial, defense counsel took a recorded statement from Mr. Palmer's former wife, Brenda Palmer, in which she stated that Mr. Palmer complained about hip and back pain "all the time" when they were together, which was prior to the accident at issue. Ms. Palmer later recanted via email and in her deposition, asserting that her statement that Mr. Palmer complained of back pain during their marriage was untrue.

Mr. Palmer filed a motion in limine seeking to exclude or limit testimony, evidence and/or argument at trial concerning statements of Ms. Palmer on the grounds that they were being offered for impeachment purposes and that they were confidential communications during their marriage which are privileged under La. C.E. art. 504(B). The trial court denied plaintiff's motion.

At trial, defense counsel did not call Ms. Palmer as a witness or introduce her statement or her deposition into evidence. However, Mr. Palmer contends that he was prejudiced because defense counsel mentioned Ms. Palmer's statement during opening statements.

Although plaintiff complains that defense counsel told the jury about Ms. Palmer's statement, without mentioning it was recanted, the record shows that it was actually plaintiff's counsel who initially mentioned Ms. Palmer's statement. During his opening statement, plaintiff's counsel stated:

...so, what were his preexisting issues? Mr. Palmer will tell you that he had hip pain prior to the wreck. When he would work, his hip would bother him, and it happened occasionally. You'll hear from his wife who says that he had hip pain. You'll also hear from his wife on a prior statement that she gave before the deposition where she says he had hip and back pain. She recanted that. She tried to do that before taking the deposition. She is going to testify at a trial deposition, so ya'll are going to have to say, "Well how much is she telling the truth? Was she lying?" You know, that's going to be up to ya'll.

Thereafter, during defense counsel's opening statement, he stated that Mr. Palmer indicated during his deposition that he had no back or hip pain prior to the accident. He then said:

So, I think I asked [an associate] in our firm, to take the statement of Mr. Palmer's ex-wife. "Ms. Palmer, did he ever have back pain, hip pain before this accident?" "Yes, he complained about it," quote, "all the time." "How many times a week?" "At least three." "Ms.
Palmer, are you sure about that?" "Yeah."

Prior to opening statements, the trial court gave some instructions to the jury, including:

The arguments that the lawyers will make to you in opening and closing statements are not evidence. Your decision on the facts must be based on the testimony and the evidence that you hear and see.
and
We are now ready for the lawyers to make opening statements. Remember that the statements the lawyers make now, as well as their closing arguments, are not evidence....

The trial court clearly explained to the jury that its decision had to be based on the testimony and evidence, not the arguments of counsel in opening statements. Further, plaintiff's counsel first mentioned Ms. Palmer's statement and indicated that she had recanted it. Defense counsel thereafter noted in his opening statement that Ms. Palmer had stated that Mr. Palmer had hip and back pain "all the time" before the accident. Considering the trial court's instructions, the fact that Ms. Palmer did not testify at trial and her statement and deposition were not introduced or admitted, and the fact that plaintiff's counsel mentioned Ms. Palmer's statement in his opening statements, we find no merit to plaintiff's argument that he suffered prejudice when defense counsel mentioned Ms. Palmer's statement in his opening statement. Accordingly, we find no error by the trial court on this issue, and this assignment of error is without merit.

In his third assignment of error, Mr. Palmer argues that the trial court erred by allowing improper and irrelevant character evidence regarding his treating neurosurgeon, Dr. Anthony Ioppolo. He claims that this evidence was offered solely to impugn Dr. Ioppolo's character which is not allowed under La. C.E. art. 608. Defendants respond that such evidence was relevant and properly admitted under La. C.E. art. 607 to show bias or prejudice.

During cross-examination of Dr. Ioppolo, defense counsel asked if he was a member of the American Association of Neurological Surgeons ("AANS"), and Dr. Ioppolo responded affirmatively. Defense counsel then asked if the AANS had ever conducted a hearing and concluded that Dr. Ioppolo demonstrated a lack of adequate subject matter knowledge. Before defense counsel finished his question, plaintiff's counsel objected, arguing that any such finding would be irrelevant and prejudicial, and a bench conference ensued. During the conference, defense counsel stated that in a prior case, the AANS concluded that Dr. Ioppolo "[d]emonstrated a lack of adequate subject matter knowledge and acted as a [sic] advocate for the plaintiff and the plaintiff attorney rather than an unbiased witness, and in doing so he violated...the board's rules." Dr. Ioppolo was questioned outside the presence of the jury regarding this matter, explaining that he had testified in a medical malpractice trial fourteen years ago and the defense attorney subsequently filed a complaint about him to the AANS. After considering the arguments of counsel, the trial court indicated that it would allow questions regarding the recommendations of AANS to show that it is a pattern, but that the jurors should be informed how long ago this occurred.

When the jury returned, in response to defense counsel's questioning, Dr. Ioppolo admitted that he had testified in a medical malpractice case in Florida which resulted in a complaint being brought against him by the AANS in 2003. Dr. Ioppolo also agreed that the AANS rendered a conclusion that:

Dr. Ioppolo demonstrated a lack of adequate subject matter knowledge, acted as an advocate for the plaintiff and the plaintiff attorney rather than an unbiased witness, and in doing so, he violated AANS expert witness guidelines and the physician statement on testimony in professional liability cases.

Dr. Ioppolo added, however, that "there's more to the story than that" and offered additional information including that he was never sanctioned by the AANS.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." La. C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403.

The trial court is vested with wide discretion in determining the relevancy of evidence, and its ruling will not be disturbed on appeal absent an abuse of that discretion. Hooker v. Super Products Corp. , 98-1107 (La. App. 5 Cir. 6/30/99), 751 So.2d 889, 909, writ denied , 99-2947 (La. 12/17/99), 751 So.2d 884. Likewise, the trial court's assessment of the probative value of evidence is afforded great weight and will not be disturbed in the absence of a clear abuse of discretion. Green v. Claiborne Elec. Co-op, Inc. , 28,408 (La. App. 2 Cir. 6/26/96), 677 So.2d 635, 639.

La. C.E. art. 607(A) provides that the credibility of a witness may be attacked by any party. La. C.E. art. 607(D)(1) provides that extrinsic evidence to show a witness' bias, interest, or corruption is admissible to attack the credibility of the witness. This Court has stated that witness bias is certainly a factor that may be considered by the jury in determining the weight to be given to testimony. See Gunn v. Robertson , 01-347 (La. App. 5 Cir. 11/14/01), 801 So.2d 555, 566, writs denied , 02-170 and 02-176 (La. 3/22/02), 811 So.2d 942.

On appeal, a reviewing court must consider whether the contested ruling was erroneous and whether the error affected a substantial right of the party. La. C.E. art. 103 ; Terry v. Simmons , 51,200 (La. App. 2 Cir. 2/15/17), 215 So.3d 410, 427. If not, reversal is not warranted. Id. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. Id.

At trial, Dr. Ioppolo testified regarding Mr. Palmer's injuries and related Mr. Palmer's disc herniation at L5 to the accident in this case. Defendants sought to discredit his opinion by eliciting testimony to show that Dr. Ioppolo is biased toward plaintiffs. He testified, without objection, that 60-70 percent of his income comes "from lawyers" or as "part of the litigation system." The trial court then allowed defense counsel to question Dr. Ioppolo regarding the AANS conclusion. Based on our review, we find no abuse of the trial court's discretion in allowing testimony regarding the AANS's conclusion that he previously acted as an advocate for the plaintiff in a medical malpractice case, in violation of AANS expert witness guidelines. This evidence could have properly been considered by the jury when determining the weight to be given to Dr. Ioppolo's testimony.

Even if we were to agree with plaintiff that the AANS's finding from approximately 14 years ago was not relevant, we cannot see that any such error affected a substantial right of Mr. Palmer. The testimony regarding Dr. Ioppolo's percentage of income arising from litigation was already admitted, suggesting that he had a bias or interest in plaintiff cases. Further, the record does not show that allowing this testimony had a substantial effect on the outcome of the case when compared to the totality of the record. This assignment of error is without merit.

In his fourth assignment of error, Mr. Palmer contends that the trial court erred by allowing impeachment evidence at trial that had previously been deemed inadmissible. Prior to trial, Mr. Palmer filed a motion in limine seeking to exclude, among other things, any testimony or evidence of his prior arrests and/or criminal convictions. Defendants agreed that Mr. Palmer's prior criminal conviction from 1993, for which he served a 17-year sentence in prison, was not admissible and did not oppose the motion in limine as to this issue. The trial court granted plaintiff's motion in limine as to "[a]ny arrests, indictments, prosecutions, or convictions of a crime more than ten (10) years ago."

During direct examination at trial, Mr. Palmer stated that he loved to work and had been working all of his life. He expressed that he wanted to get up and go places, be independent, and be his "old self again," but at times he would get up in the morning and not be able to move or would have to "wait a while to move."

After direct examination and before defense counsel questioned Mr. Palmer on cross-examination, due to Mr. Palmer's testimony that he worked all of his life, defendants' counsel requested that he be allowed to question Mr. Palmer about the 17-year period during which he did not earn any wages, without eliciting the reasons why he did not work. Plaintiff's counsel objected, arguing that such questioning was prejudicial and that Mr. Palmer did work during the 17 years he was incarcerated, even though he did not earn money for his work.

The trial court granted defendants' request and overruled plaintiff's objection, finding that Mr. Palmer's statement that he worked hard all of his life "does open the door" for defense counsel to question his lack of earned wages for 17 years.

Defense counsel asked Mr. Palmer:

You testified to the jury that you loved working and you worked hard all your life. Isn't it true that between 1993 and 2009, when you were 26 until you were 43, you had no reported income?

Mr. Palmer responded:

Right.

On appeal, Mr. Palmer argues that allowing defendants to present to the jury that he had no income for 17 years was inviting the jury to deduce that he was incarcerated during that time, and this evidence had already been deemed inadmissible.

The determination of the scope of cross-examination is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Chi. Prop. Interests, L.L.C. v. Broussard , 15-299 (La. App. 4 Cir. 10/21/15), 177 So.3d 1074, 1083, writ denied , 15-2117 (La. 1/25/16), 185 So.3d 748. In this case, before questioning Mr. Palmer about his lack of reported income, defense counsel verified with the trial court that the question was permissible. The trial court considered Mr. Palmer's statement on direct that he worked all of his life and found that it "opened the door" for the question to be asked. We find no abuse of the trial court's discretion in this determination. Further, we note that while Mr. Palmer surmises that the jury would have deduced that he was incarcerated during the period in question, there was no mention of Mr. Palmer's prior arrest, conviction, or his 17-year sentence at trial, which were excluded via the trial court's ruling on his motion in limine. This assignment of error is without merit.

In his fifth and final assignment of error, Mr. Palmer argues that the trial court erred by excluding a witness from testifying as a sanction for the alleged violation of the court's sequestration order. We disagree.

La. C.E. art. 615(A) provides:

As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.

At the beginning of trial, the trial court granted defendants' motion to sequester the witnesses. Later during the proceedings, Mr. Palmer called his aunt, Terry Glasper, to the stand, and defense counsel objected. Defense counsel stated that when he went to lunch, he saw Mr. Palmer talking to Ms. Glasper in the hall and he informed plaintiff's counsel. Defense counsel expressed concern that Mr. Palmer may have been talking to Ms. Glasper about what she should say in court later that day.

Outside of the jury's presence, the trial court called Ms. Glasper to the stand and questioned her in order to determine if the sequestration order had been violated. Ms. Glasper initially stated that she had not had any conversations with Mr. Palmer since the trial began, but then admitted that she had "briefly" conversed with him that day. When asked what the discussion was about, she stated, "Well, I drove in, and we had to pick him up from the hotel-hotel and just came here." She stated that their discussion was just "about the ride that [she] had coming here." The trial court then asked Ms. Glasper if she had talked to Mr. Palmer at the courthouse that day, and Ms. Glasper said, "no." When asked again if she had a conversation with Mr. Palmer, Ms. Glasper replied, "[N]ot a conversation, no," but she then admitted they had spoken briefly in the hall. Ms. Glasper stated that they had just talked "about being here," and she denied that they discussed anything about what had been said during the trial or what her upcoming testimony would be.

The trial court indicated that, based on the questioning of Ms. Glasper, it was concerned about her credibility due to her reluctance to disclose that she spoke with Mr. Palmer. Defense counsel orally moved for the trial court to exclude Ms. Glasper from testifying in this matter due to the violation, or potential violation, of the sequestration order. The trial court granted defendants' motion to preclude her testimony.

On appeal, Mr. Palmer argues that the trial court abused its discretion by finding a violation of the sequestration order, where there was no evidence of the nature of the conversation and no one testified that they were talking about the case. He argues that exclusion of witnesses is disfavored and that the circumstances in this case do not warrant disqualification of a witness, which is the most drastic remedy for violation of a sequestration order. He argues that Ms. Glasper was the only witness who would corroborate Mr. Palmer's claim that he was in pain after the accident, even though he did not seek medical treatment until three weeks later.

The purpose of the sequestration article is to prevent witnesses from being influenced by the testimony of earlier witnesses, and to strengthen the role of cross-examination in developing the facts. Johnson v. E.I. DuPont deNemours & Co. , 08-628 (La. App. 5 Cir. 1/13/09), 7 So.3d 734, 741. The trial court has the power to require that the proceedings be conducted with dignity in an orderly and expeditious manner, and to control the proceedings so that justice is done. Id. ; La. C.C.P. art. 1631(A).

La. C.E. art. 615(C) provides:

A court may impose appropriate sanctions for violations of its exclusion order including contempt, appropriate instructions to the jury, or when such sanctions are insufficient, disqualification of the witness."

Disqualification of a witness is a drastic remedy, but this sanction has been specifically approved when the sequestration violation was committed with the consent, connivance, procurement or knowledge of the party calling the witness. State v. Trahan , 576 So.2d 1 (La. 1990) ; Briscoe v. Briscoe , 25,955 (La. App. 2 Cir. 8/17/94), 641 So.2d 999, 1005. The particular sanction imposed for a sequestration violation rests within the sound discretion of the trial court. Id. ; Henry v. Sullivan , 16-564 (La. App. 1 Cir. 7/12/17), 223 So.3d 1263, 1270.

Mr. Palmer surely knew of the sequestration violation, as it occurred when Ms. Glasper was speaking to the plaintiff himself. Considering these circumstances and that Ms. Glasper was less than forthcoming when questioned, we find no abuse of discretion in the trial court's finding that the sequestration order was violated or its ruling precluding Ms. Glasper from testifying in this case. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court judgment rendered in accordance with the jury's verdict, dismissing plaintiff's claims with prejudice.

AFFIRMED

      Jeannie Breaux was the driver of the car that was struck by Mr. Smith's vehicle, causing her vehicle to strike Mr. Palmer's vehicle. Ms. Breaux filed suit against the same defendants as those named in Mr. Palmer's lawsuit. However, the parties filed a "Joint Motion to Dismiss with Prejudice," and Ms. Breaux's claims were dismissed with prejudice on March 22, 2017.

      The record reflects that plaintiff's counsel used all of his peremptory challenges during jury selection.

      Criminal jurisprudence on challenges for cause may be considered in civil cases. Wyatt v. Hendrix , 43,559 (La. App. 2 Cir. 11/5/08), 998 So.2d 233, 240.

      Due to this finding, we pretermit discussion of whether Mr. Palmer's alleged prior back pain complaints were even "confidential communications" during the marriage that were subject to the spousal communications privilege set forth in La. C.E. art. 504(B).


author: CHAISSON, J.

text:
    STATE of Louisiana v. Corey FLAG AKA Co
    NO. 18-KA-70
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Thomas J. Butler, Douglas W. Freese, Rachel L. Africk, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, COREY FLAG, Mary Constance Hanes, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

Defendant, Corey Flag, appeals eight felony convictions and sentences. On appeal, he contends that the evidence was insufficient to support his convictions as the State failed to negate any reasonable probability of misidentification, and that the trial court abused its discretion in allowing the admission of other crimes evidence pursuant to La. C.E. art. 404(B). For the reasons that follow, we find no merit to defendant's arguments, and accordingly, we affirm his convictions and sentences.

PROCEDURAL HISTORY

On May 5, 2016, the Jefferson Parish Grand Jury returned an indictment charging defendant and his co-defendant, Emmett Garrison, IV, with the second degree murder of Bruce Lutcher, in violation of La. R.S. 14:30.1. Defendant was also charged with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. At his arraignment, defendant pled not guilty.

On September 1, 2016, defendant and co-defendant Garrison were charged in a superseding ten-count indictment. Defendant was charged in eight of the ten counts as follows: count one : second degree murder of Bruce Lutcher on or about November 23, 2015, in violation of La. R.S. 14:30.1 ; count two : conspiracy to commit armed robbery on or between November 23, 2015, and December 11, 2015, in violation of La. R.S. 14:26 and 14:64 ; count three : attempted armed robbery with a firearm of Franklin Diaz on December 11, 2015, in violation of La. R.S. 14:27 and 14:64.3 ; count four : illegal use of a weapon while attempting to commit an armed robbery on December 11, 2015, in violation of La. R.S. 14:94(F) ; count five : attempted armed robbery with a firearm of Fausto Alvarez on December 11, 2015, in violation of La. R.S. 14:27 and 14:64.3 ; count seven : armed robbery with a firearm of Jose Galeas on December 11, 2015, in violation of La. R.S. 14:64.3 ; count nine : possession of a firearm by a convicted felon on or between November 23, 2015, and December 11, 2015, in violation of La. R.S. 14:95.1 ; and count ten : illegal use of a weapon on December 9, 2015, in violation of La. R.S. 14:94(A)(B). On September 2, 2016, defendant pled not guilty to the superseding indictment.

On September 5, 2017, trial commenced before a twelve-person jury. At the conclusion of the four-day trial on September 8, 2017, the jury returned a verdict of guilty as charged on all eight counts.

On September 14, 2017, the trial court heard and denied defendant's motion for new trial. After defendant waived sentencing delays, the trial court sentenced him to consecutive terms of imprisonment as follows: count one : life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; count two : twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; counts three and five : twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively for a total of thirty years imprisonment on each count; count four : ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; count seven : forty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years at hard labor "without benefits" for a total of fifty years imprisonment; count nine : twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and count ten : two years imprisonment at hard labor.

Defendant now appeals.

FACTS

Second degree murder of Bruce Lutcher on November 23, 2015 (count one)

On November 23, 2015, Bruce Lutcher was shot and killed outside his apartment on Ute Street in Harvey, Louisiana. At trial, Cassandra Gilds, the victim's girlfriend, testified as to the circumstances surrounding the shooting. According to Ms. Gilds, on November 23, 2015, at about 9:40 p.m., Mr. Lutcher received a phone call and left the apartment they shared. Ms. Gilds was aware that Mr. Lutcher sold drugs and testified that it was not unusual for him to be gone for a few minutes at a time. On that particular night, Ms. Gilds became concerned when Mr. Lutcher did not return after some time had passed. She tried to call his cell phone using a blocked number, but Mr. Lutcher did not answer. Ms. Gilds then asked her friend, Shantrell Johnson, to call his number, and once again, Mr. Lutcher did not answer.

About three minutes later, Ms. Gilds heard the doorbell to her apartment ring twice. Thinking it odd that Mr. Lutcher would ring the doorbell, Ms. Gilds went to the door and listened. She heard footsteps on the stairs as well as a voice that she did not recognize. Ms. Gilds then heard Mr. Lutcher say, "[n]o, come on, son, no. No, bra." Thereafter, she heard multiple gunshots followed by "scratching noises." Afraid the perpetrators were going to come after her and her children, Ms. Gilds remained inside the apartment and called 9-1-1. While waiting for the police, Ms. Gilds eventually opened the apartment door and saw Mr. Lutcher at the bottom of the stairwell on his knees with his head against the wall. Mr. Lutcher was unresponsive, and his wallet and cell phone were missing.

Detective Rhonda Goff of the Jefferson Parish Sheriff's Office, the lead investigator in the shooting, arrived at the scene and supervised the collection of evidence and the taking of photographs. At trial, Detective Goff indicated that it was common knowledge that Mr. Lutcher sold marijuana and further stated that a large amount of marijuana had been found near the scene. No firearms were ever recovered in connection with the investigation into the homicide of Mr. Lutcher; however, ballistics material including projectiles and casings were recovered on the scene.

Detective Goff observed that Mr. Lutcher's pockets had been turned inside out and that there was a bottle of Visine and the victim's keys on the ground, leading her to believe that Mr. Lutcher had been the victim of a robbery. Mr. Lutcher's wallet and cell phone were never recovered. However, Detective Goff stated that upon listening to Mr. Lutcher's voicemail recording obtained from Ms. Johnson's phone, she concluded that Mr. Lutcher's cell phone was taken during the robbery. Further, Detective Goff testified that she heard running sounds and the voices of three individuals on the voicemail recording, leading her to believe that there was a minimum of two suspects.

About two days after the shooting, Detective Goff spoke with a woman named Ms. Davis who lived nearby and claimed to have witnessed the shooting. According to Detective Goff, Ms. Davis told her that she saw the victim and a man wearing a black hoodie on the night of the murder, which Detective Goff found to be inconsistent with the information gained from the voicemail recording obtained from Ms. Johnson's cell phone. Detective Goff further testified once defendant and co-defendant Garrison were developed as suspects, she did not return to Ms. Davis with a photographic lineup because the woman had mental problems and was not a reliable witness.

Marcques Joseph testified that he knew Mr. Lutcher from the neighborhood, and that on the night Mr. Lutcher was murdered, he observed defendant and co-defendant Garrison walking up the street with guns in their hands towards Mr. Lutcher. Mr. Joseph went inside and a few minutes later came back outside and saw that the police were at Mr. Lutcher's apartment building. Mr. Joseph positively identified both defendant and co-defendant Garrison in photographic lineups.

Mr. Joseph further testified that sometime after the shooting of Mr. Lutcher, he had a conversation with defendant and co-defendant Garrison during which one of them told him the shooting was "his work." At first, Mr. Joseph stated that co-defendant Garrison was the one who told him about the murder being "his work." However, after he was reminded of his statement to Detective Goff, he insisted it was defendant who said it was "his work."

Drive-by shooting incident on Julie Street on December 9, 2015 (count ten)

On December 9, 2015, a drive-by shooting occurred on Julie Street in Marrero. Deputy Ryan Singleton of the Jefferson Parish Sheriff's Office Crime Scene Division arrived at the scene and collected evidence, which included six casings. According to Deputy Singleton, one of the casings was fired from a Winchester .380 auto-caliber firearm, and the remainder of the casings were fired from a 9 mm firearm. After ballistics testing, it was discovered that the 9 mm shell casings from the drive-by shooting and the murder of Mr. Lutcher were fired from the same gun.

Once Detective Goff became aware of this connection, she spoke to Curvin Nash, one of the individuals present at the scene of the drive-by shooting. According to Detective Goff, Mr. Nash identified defendant and co-defendant Garrison in photographic lineups as the two individuals who shot at him. However, at trial, Mr. Nash recanted his prior statements and maintained that he lied when he told Detective Goff that defendant and co-defendant Garrison were the shooters. Mr. Nash asserted that Detective Goff picked out the men for him and bribed him, informing him that he would get out of jail if he selected their photographs. At trial, Mr. Nash testified that he could not identify the individuals who shot at him because he was unable to see inside their vehicle. He further stated that he was "working off his charges" at the time he made the identifications.

Attempted armed robbery of Franklin Diaz and illegal discharge of a firearm on December 11, 2015 (counts three and four)

On December 11, 2015, at approximately 5:30 p.m., Franklin Diaz was in the parking lot outside of his apartment talking on his cell phone and smoking a cigarette when two black men approached him. According to Mr. Diaz, who testified at trial through a Spanish-speaking interpreter, the taller of the two men pulled out a gun and demanded his money while the shorter one stood behind the other acting as a "lookout." Mr. Diaz refused to comply with their demand and ran away, at which point the tall man with the gun shot at him.

Mr. Diaz was subsequently shown photographic lineups and identified defendant as the tall assailant with the gun and co-defendant Garrison as the lookout. Mr. Diaz also identified both defendant and co-defendant as the perpetrators in open court.

Attempted armed robbery of Fausto Alvarez on December 11, 2015 (count five)

On December 11, 2015, Fausto Alvarez went to pick up a friend at an apartment complex in Terrytown. According to Mr. Alvarez, who also testified at trial through a Spanish-speaking interpreter, he got out of his car and went to his brother's car, which was parked in the same parking lot, to retrieve his toolbox. While at his brother's car, he was approached by two black men who told him it was a "hold-up." The shorter of the two men pointed a gun at Mr. Alvarez while the taller man reached into his pockets. After finding nothing of value, the taller man hit Mr. Alvarez in the neck and the shorter man with the gun shot Mr. Alvarez in the stomach. The two men then fled.

Mr. Alvarez testified that he was taken to the hospital where he remained for nineteen days, and that as a result of being shot, he is confined to a wheelchair and will never walk again. Mr. Alvarez was unable to identify his assailants from the photographs presented to him by the police. However, Mr. Alvarez made an in-court identification of defendant as the man who searched and hit him based on seeing him in person in the courtroom. Mr. Alvarez further noted that defendant looked different than he did at the time of the attempted armed robbery because his hair at the time of the trial was short.

Armed robbery of Jose Galeas on December 11, 2015 (count seven)

On the evening of December 11, 2015, Jose Galeas was robbed at gunpoint by two black men as he returned home from work to his apartment on Abbey Road. At trial, Mr. Galeas, who also had the assistance of a Spanish-speaking interpreter, testified that he first observed the men as they drove into the parking lot of his apartment complex. As Mr. Galeas was opening his apartment door, the two men, one short and one tall, told him not to move. The shorter man pointed a gun at Mr. Galeas' head while the taller man, who had "braids" and wore a black jacket, searched him and took his wallet containing $430.00. After his assailants left, Mr. Galeas attempted to write down their license plate number, but the men, who were still in the apartment complex, observed him. Mr. Galeas explained that the shorter of the two told him not to look at them and then fired four shots at him.

A few weeks after the armed robbery, Mr. Galeas was shown photographic lineups from which he was able to identify defendant as the taller of the assailants.

December 22, 2015 shooting incident (admitted at trial pursuant to La. C.E. art. 404(B) )

On December 22, 2015, fifteen-year-old Sharamie Joseph was shot and killed as she was sitting on a sofa in her cousin's apartment. According to the testimony at trial, Romalis Levier, who was present on the scene of the December 9, 2015 drive-by shooting, went to Walter Wilson's apartment, which defendant and co-defendant frequented, and shot co-defendant Garrison in the stomach. During the course of the shoot-out, Ms. Joseph, who was visiting her family in the next-door apartment, was killed by a stray bullet. During his trial testimony, Marcques Joseph explained that after his cousin was shot, he went outside and saw co-defendant Garrison running through the parking lot holding his stomach and observed Mr. Levier's car speeding away from the scene.

According to Detective Goff, after co-defendant Garrison was shot, he went back to his home where an ambulance was called. His home was searched, and no guns were found. Detective Goff testified that co-defendant Garrison would have had sufficient opportunity to dispose of a weapon between the time he was shot and his arrival home.

Investigation of the December 11, 2015 armed robbery and attempted armed robberies

At trial, Sergeant Wayne Rumore and Sergeant Joseph Waguespack of the Jefferson Parish Sheriff's Office testified regarding their investigation of the December 11, 2015 incidents. According to Sergeant Rumore, the first incident, the attempted armed robbery of Mr. Diaz, occurred on East Monterey Court in Gretna at approximately 5:30-5:40 p.m. Upon his arrival, Sergeant Rumore met with Mr. Diaz who described the first assailant as a black male, 5'10? to 6'0? tall, thin build, dreadlock hair style, wearing a white shirt and black pants, and in possession of a black semi-automatic pistol. Mr. Diaz described the second assailant as a younger, shorter black male, thin build, with short hair. Sergeant Rumore testified that there were two 9 mm casings found at the scene.

While at the Monterey Court scene, Sergeant Rumore received a phone call around 6:00 p.m. regarding a second attempted armed robbery and shooting at Faith Place, and he sent Sergeant Waguespack to that scene. Upon his arrival, Sergeant Waguespack assisted Detective Daniel Lincoln in the recovery of evidence from the scene, which included six 9 mm casings. Sergeant Waguespack was unable to speak to Mr. Alvarez that evening because he was in surgery.

Sergeant Rumore then received another phone call a short time later, around 6:20-6:30 p.m., about a third armed robbery incident on Abbey Road, approximately three or four miles away. Sergeant Rumore left the Monterey Court scene and proceeded to the scene at Abbey Road where four 9 mm casings had been recovered. He stated that the victim, Mr. Galeas, informed him that the perpetrators were black males, one short and one tall, and that the shorter black male was in possession of a semi-automatic handgun. Mr. Galeas further advised Sergeant Rumore that the taller male was wearing a black shirt and had a "twist" hairstyle.

Sergeant Rumore testified that he believed the three incidents were related because they each involved two black perpetrators, one short and one tall, and Hispanic victims. Additionally, Sergeant Waguespack identified a map containing the locations of the three crime scenes and noted the three locations were only two or three miles apart and could be reached rather quickly from the main roads.

Sergeant Waguespack testified that co-defendant Garrison was eventually developed as a suspect in the armed robbery and attempted armed robberies after he was advised by a homicide investigator that Garrison was involved in a homicide incident on December 22, 2015. Sergeant Waguespack explained that Garrison was found to be associated with a 9 mm handgun used in the December 22, 2015 shooting incident, and the casings from that shooting matched the casings found at each of the three robbery scenes and were determined to have been fired from the same weapon. Following this development, photographic lineups containing co-defendant Garrison were shown to the three victims. Mr. Diaz was the only victim who positively identified Garrison as one of the perpetrators.

Sergeant Waguespack also testified that defendant was developed as a suspect based on a December 9, 2015 drive-by shooting incident involving Curvin Nash. When Sergeant Waguespack showed photographic lineups containing defendant's photograph to the three victims, Mr. Diaz and Mr. Galeas identified defendant. Also, Sergeant Waguespack explained that another reason defendant was developed as a suspect was his connection to a shooting incident on December 7, 2015, at the RaceTrac on Manhattan Boulevard. While no suspects were identified in that shooting incident, defendant was field-interviewed during the investigation due to his close proximity to the scene. Ballistics casings recovered from the scene of the RaceTrac shooting matched those casings recovered from the scenes of the armed robbery and attempted armed robberies on December 11, 2015.

Ballistics Evidence

Jene Rauch of the Jefferson Parish Crime Laboratory testified as an expert in firearms and toolmark examination, shooting incident reconstruction, and crime scene investigation. Ms. Rauch analyzed materials collected from the November 23, 2015 homicide of Mr. Lutcher, the December 7, 2015 shooting at RaceTrac, the December 9, 2015 drive-by shooting involving Mr. Nash, the three December 11, 2015 armed robbery and attempted armed robberies, and the December 22, 2015 shooting incident, in which Ms. Joseph was killed and co-defendant Garrison was wounded.

Based on her analysis of the ballistics material, Ms. Rauch concluded that the 9 mm casings recovered from the homicide of Mr. Lutcher were fired from the same 9 mm handgun as the casings found at the scene of the drive-by shooting involving Mr. Nash on December 9, 2015. Ms. Rauch further concluded that the ballistics material recovered from the RaceTrac shooting on December 7, 2015, and the armed robbery and attempted armed robberies on December 11, 2015, were all fired from the same 9 mm handgun that fired the ballistics material recovered from the December 22, 2015 shooting incident involving the wounding of co-defendant Garrison.

Possession of a firearm by a convicted felon (count nine)

The State and defense stipulated that defendant had a prior conviction for possession of cocaine, a felony violation of La. R.S. 40:967(C), from March 17, 2011, in Jefferson Parish.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him on all counts. He specifically maintains that the State failed to negate any reasonable probability of misidentification.

In reviewing the sufficiency of the 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. Baham , 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied , 15-40 (La. 3/24/16), 190 So.3d 1189.

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 , 169 So.3d at 566.

It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442, 443. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley , 03-384 (La. App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied , 03-2745 (La. 2/13/04), 867 So.2d 688. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Joseph , 16-349 (La. App. 5 Cir. 12/14/16), 208 So.3d 1036, 1043, writ denied , 17-77 (La. 4/7/17), 218 So.3d 109.

In the present case, defendant was convicted of one count of second degree murder, one count of conspiracy to commit armed robbery, two counts of attempted armed robbery with a firearm, two counts of illegal use of weapons, one count of armed robbery with a firearm, and one count of possession of a firearm by a convicted felon. In challenging the sufficiency of the evidence used to convict him of these offenses, defendant does not contest the sufficiency of the essential statutory elements; rather, he challenges his identity as the perpetrator and asserts that the State failed to negate any reasonable probability of misidentification.

Second degree murder of Bruce Lutcher on November 23, 2015 (count one); illegal discharge of a firearm on December 9, 2015 (count ten); possession of a firearm by a convicted felon (count nine)

On appeal, defendant contends that the State failed to present the testimony of a single eyewitness to the murder of Mr. Lutcher. He further asserts that because Curvin Nash recanted his statement accusing defendant and co-defendant Garrison of committing the drive-by shooting on December 9, 2015, the casings found at the scene of the drive-by shooting cannot be used as evidence to link them to the Lutcher murder. Additionally, he maintains that Marcques Joseph's testimony is insufficient to support his murder conviction, noting that Mr. Joseph did not witness the shooting and that he changed his testimony about who told him the murder was "his work." Next, defendant asserts that because Mr. Nash recanted his prior statement made to Detective Goff, there is insufficient evidence to support his conviction for illegal discharge of a firearm and possession of a firearm on December 9, 2015. For the reasons that follow, we find no merit to these arguments.

On November 23, 2015, at approximately 9:40 p.m., Mr. Lutcher received a phone call and left the apartment that he shared with his girlfriend, Ms. Gilds. When Mr. Lutcher did not return within a short period of time, Ms. Gilds became concerned and tried to call him. When Mr. Lutcher did not answer, Ms. Gilds asked a friend, Shantrell Johnson, to call him, but once again, he did not answer. Mr. Lutcher eventually returned Ms. Johnson's call, and when Ms. Johnson did not answer, a voicemail message was recorded. Shortly thereafter, Ms. Gilds heard her doorbell ring and then heard footsteps on the stairs and multiple gunshots. Ms. Gilds called 9-1-1, and while waiting for police to arrive, she opened the door and observed Mr. Lutcher unresponsive at the bottom of the stairs.

When Detective Goff arrived on the scene, she observed that Mr. Lutcher's pockets had been turned inside out and that his wallet and cell phone were missing, causing her to conclude that Mr. Lutcher had been the victim of a robbery. Although no suspects were immediately developed, after listening to the voicemail recording made from Mr. Lutcher's cell phone at 11:42 p.m., the time of the shooting, Detective Goff came to the conclusion that a minimum of two suspects were involved.

During the course of her investigation into this murder, Detective Goff was informed that the 9 mm shell casings from a drive-by shooting on December 9, 2015, and the murder of Mr. Lutcher were fired from the same gun. Thereafter, Detective Goff interviewed Curvin Nash, one of the individuals present at the scene of the drive-by shooting. According to Detective Goff, Mr. Nash identified defendant and co-defendant in photographic lineups as the individuals who shot at him.

The jury also heard testimony from Mr. Joseph that on the night Mr. Lutcher was murdered, he saw defendant and co-defendant Garrison walking up the street with guns in their hands, towards Mr. Lutcher. Further, Mr. Joseph testified that during the course of a conversation, defendant advised him that the murder was "his work." In addition to this testimony, the jury also heard that less than an hour before he was murdered, Mr. Lutcher received phone calls from a number found to be associated with defendant. Additionally, less than twenty minutes after Mr. Lutcher's murder, outgoing calls were placed to defendant's girlfriend by the same phone known to be associated with defendant.

In contrast to this testimony, the jury heard about Mr. Nash's recantation of his statements accusing defendant and co-defendant Garrison of shooting at him on December 9, 2015. The jury also heard that Mr. Joseph did not witness the November 23, 2015 shooting of Mr. Lutcher, that he changed his testimony about who told him the murder was "his work," and that he did not speak to police about what he had observed until his interview with Detective Goff, which was subsequent to his cousin's murder on December 22, 2015. Additionally, the jury heard about the existence of a potential witness, Ms. Davis, who allegedly observed the victim and one perpetrator on the night of Mr. Lutcher's murder and was further made aware that the police did not contact this witness for possible identification of the perpetrator.

The jury heard this conflicting testimony and obviously chose to accept the testimony pointing to defendant as one of the perpetrators. As previously noted, the trier of fact can accept or reject, in whole or in part, the testimony of any witness. It is not the appellate court's function to re-evaluate the credibility of witnesses or reweigh the evidence. State v. Bradley , 858 So.2d at 84.

Based on the evidence presented at trial, we find that the State negated any reasonable probability of misidentification and that any rational trier of fact could have found that the State proved beyond a reasonable doubt that defendant was guilty of the offenses occurring on November 23, 2015, and December 9, 2015.

Armed robbery of Jose Galeas and attempted armed robberies of Franklin Diaz and Fausto Alvarez (counts three, five, and seven); conspiracy to commit armed robbery (count two); felon in possession of a firearm (count nine); and illegal discharge of firearm while attempting to commit an armed robbery (count four), on December 11, 2015

With regard to these offenses, defendant contends the identifications made by Franklin Diaz, Fausto Alvarez, and Jose Galeas concerning the incidents on December 11, 2015, are unreliable, noting that the victims could not have gotten a good look at the perpetrators. Further, defendant asserts that because the State failed to negate any reasonable probability of misidentification, the evidence was insufficient to support his convictions for armed robbery, attempted armed robbery, conspiracy to commit armed robbery, illegal discharge of a weapon, and possession of a weapon by a felon on that date.

On December 11, 2015, three armed or attempted armed robberies of Hispanic men occurred within a span of one hour on the west bank of Jefferson Parish. Each of the three victims testified at trial. The first victim, Franklin Diaz, testified that he was robbed at gunpoint by two black men. He testified that one of the assailants was tall and the other was short. Both in photographic lineups and at trial, Mr. Diaz positively identified defendant as the tall assailant who pointed a gun at him and demanded his money and co-defendant Garrison as the short assailant who served as the "lookout."

The second victim, Fausto Alvarez, testified similarly to Mr. Diaz, describing the two assailants who approached him as two black men, one short and one tall. Mr. Alvarez further testified that when he was unable to provide the assailants with any money, the shorter of the two shot him in the stomach before fleeing. While Mr. Alvarez was unable to identify his assailants from photographic lineups, he did make an in-court identification of defendant as one of the men who attempted to rob him.

Finally, the third victim, Jose Galeas, testified that he was robbed at gunpoint by two black men, one short and one tall. He recalled that the shorter of the two assailants pointed a gun at him while the taller man, whom he later identified from a photographic lineup as defendant, took his wallet containing over $400.00. Both Mr. Diaz and Mr. Galeas further described defendant as having dreadlocks at the time the crimes were committed. In addition, casings collected from each of the crime scenes were determined to have been fired from the same weapon.

Based on this testimony, we find that the State negated any reasonable probability of misidentification in connection with the December 11, 2015 offenses. As noted by the State, any issues relating to the reliability of the identifications were presented to the jury, who made a credibility determination in favor of the State's witnesses. Since it is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence, we find that any rational trier of fact could have found that the State proved beyond a reasonable doubt that defendant was guilty of the December 11, 2015 offenses.

Accordingly, the arguments raised by defendant relating to the sufficiency of the evidence are without merit.

ADMISSION OF OTHER CRIMES EVIDENCE

In his second assignment of error, defendant argues that the trial court abused its discretion in granting the State's motion to introduce evidence of other crimes pursuant to La. C.E. art. 404(B). Specifically, defendant challenges the trial court's admission of evidence relating to a shooting incident on December 22, 2015, in which a teenage girl, Sharamie Joseph, was shot and killed by a stray bullet and co-defendant Garrison was shot and wounded.

La. C.E. art. 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), certain requirements must be met. First, pursuant to State v. Prieur , 277 So.2d 126 (La. 1973), the State must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. State v. Le , 13-314 (La. App. 5 Cir. 12/12/13), 131 So.3d 306, 317. Additionally, one of the factors listed in La. C. E. art. 404(B) must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible. State v. Jackson , 625 So.2d 146, 149 (La. 1993). Further, the State must prove that the defendant committed the other acts by a preponderance of the evidence. Huddleston v. United States , 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988) ; State v. Hernandez , 98-448 (La. App. 5 Cir. 5/19/99), 735 So.2d 888, 898-99, writ denied , 99-1688 (La. 11/12/99), 750 So.2d 194. Finally, the probative value of the extraneous evidence must outweigh its prejudicial effect. State v. Page , 08-531 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, 451, writ denied , 09-2684 (La. 6/4/10), 38 So.3d 299.

The burden is on the defendant to show that he was prejudiced by the admission of other crimes evidence. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La. C.E. art. 404(B)(1) will not be disturbed. State v. Le , 131 So.3d at 317.

In the present case, prior to trial, the State filed a notice of intent to use evidence of other bad acts pursuant to La. C.E. art. 404(B), seeking to introduce evidence of a shooting incident that occurred on December 22, 2015, which resulted in the death of a teenage girl and the wounding of co-defendant Garrison. It was the State's contention that co-defendant Garrison was a participant in the December 22, 2015 shooting during which the same firearm utilized by defendant and co-defendant Garrison in the December 11, 2015 armed robbery and attempted armed robberies was used. Because ballistics testing revealed that the same gun was used on both dates, the State intended to introduce evidence of the December 22, 2015 incident to establish "the defendants' identities as the perpetrators" of the crimes committed on December 11, 2015, "their opportunity to commit the charged offenses, the absence of any mistake or accident in their discharge of the firearms in each of the three December 11, 2015 robbery incidents, and the specific intent to kill a victim left paralyzed during one of the December 11, 2015 robbery incidents."

After a hearing on January 23, 2017, the trial court ruled that the December 22, 2015 shooting incident was admissible under La. C.E. art. 404(B) because "the defendants are, in fact, identified, it is the exact same weapon, it shows lack of mistake, lack of knowledge, system and intent." Defendant now challenges the trial court's admission of this evidence on two grounds.

First, defendant contends that this evidence was improperly admitted at trial because the State failed to prove by a preponderance of the evidence that co-defendant Garrison was the person who fired one of the two weapons used during the December 22, 2015 shooting incident. We find this assertion to be without merit.

At trial, the State presented the testimony of Detective Goff and Sergeant Waguespack regarding the retaliatory shooting that occurred on December 22, 2015, at the apartment complex frequented by defendant and co-defendant Garrison. According to the testimony, on that day, Mr. Levier, who was present at the December 9, 2015 drive-by shooting, drove to the apartment complex where defendant was staying and shot co-defendant Garrison in the stomach. During this shooting incident, a teenage girl sitting in the adjoining apartment was shot and killed by a stray bullet. Witness Marcques Joseph testified that after the shooting, he observed co-defendant Garrison running through the parking lot while Mr. Levier's car sped away from the scene. By stipulation of the parties, co-defendant Garrison's father confirmed that on December 22, 2015, his son was shot by Mr. Levier.

At trial, the State presented the expert testimony of Jene Rauch who performed a crime scene reconstruction of the December 22, 2015 shooting and established that there were two shooters on the scene that evening. She explained that Ms. Joseph was shot and killed inside her apartment by a stray bullet fired from the street by someone using a .22 caliber weapon. Ms. Rauch further concluded there to be a second mobile shooter on the scene who fired .38 caliber ammunition from a 9 mm handgun toward the street from inside the stairwell of the apartment complex. The twenty-two casings found inside the stairwell and on the sidewalk near the apartment were fired from the same weapon that discharged the casings recovered at the scene of the armed robbery and attempted armed robberies on December 11, 2015. While no weapons were recovered, Detective Goff opined there to be sufficient distance between the location where co-defendant Garrison was shot and co-defendant's residence that if co-defendant Garrison had departed the scene of the shooting in possession of a firearm, he would have had sufficient opportunity to dispose of the weapon before reaching his residence.

In the present case, while primarily circumstantial in nature, the evidence presented by the State was sufficient to prove by a preponderance of the evidence that co-defendant Garrison was the second mobile shooter who fired shots back at Mr. Levier on December 22, 2015.

Second, defendant argues that the evidence of the December 22, 2015 shooting incident was more prejudicial than probative, and therefore, the trial court erred in allowing the admission of evidence regarding this unrelated shooting at trial. We likewise find no merit to this argument. In the present case, the evidence of the December 22, 2015 shooting incident was highly probative of identity. Further, as previously noted, the burden is on defendant to show that he was prejudiced by the admission of this evidence. State v. Le , 131 So.3d at 317. Defendant has failed in meeting that burden. In fact, as discussed in footnote thirteen of this opinion, there was no evidence presented to the jury that defendant was present at or participated in the December 22, 2015 shooting. Additionally, regardless of whether or not this evidence was properly admitted, after this evidence was presented by the State, defendant was able to utilize this evidence to establish a motive for Mr. Joseph's damaging testimony in this case regarding the murder of Mr. Lutcher.

Further, this Court, in State v. Fair , 15-434 (La. App. 5 Cir. 12/23/15), 182 So.3d 1238, writ denied , 16-0185 (La. 2/3/17), 215 So.3d 688, when faced with arguments similar to those raised herein, found that the trial court properly allowed the admission of the other crimes evidence. In Fair , the defendant, who was on trial for murder, argued on appeal that the trial court erred in allowing the State to present evidence of a previous unrelated shooting in which defendant was the victim. As in this case, the defendant in Fair argued that the State failed to prove that he committed the other crimes, wrongs, or acts, and further argued that the evidence was more prejudicial than probative. This Court found no abuse of discretion in the trial court's admission of evidence of the previous shooting, noting that the defendant was shot during the prior incident while standing on the porch where the casings, which matched those related to the homicide, were recovered. This Court further noted that the investigation into the unrelated shooting incident revealed two sets of spent casings, which was consistent with two weapons being fired during the incident, thereby concluding that the State proved by a preponderance of the evidence that the defendant committed the other act. This Court also rejected the defendant's argument that the other crimes evidence was more prejudicial than probative, finding the matching casings to be highly probative of identity.

Based on the foregoing, we find no abuse of discretion in the trial court's admission of the December 22, 2015 shooting incident. Nevertheless, even if improperly admitted, the erroneous admission of other crimes evidence is subject to harmless error analysis. The test for determining if an error was harmless is whether the verdict actually rendered in the trial was surely unattributable to the error. State v. Joseph , 208 So.3d at 1047-48.

In the instant case, even without the admission of the December 22, 2015 shooting incident, the evidence presented by the State was sufficient to prove defendant's guilt as to the armed robbery and attempted armed robberies on December 11, 2015. As previously discussed in the first assignment of error, the victims of the armed robbery and attempted armed robberies positively identified defendant as one of the two assailants who robbed or attempted to rob them on the evening of December 11, 2015. Given these positive identifications, the guilty verdicts concerning the armed robbery and attempted armed robberies were surely unattributable to any alleged error in admitting the shooting incident from December 22, 2015.

In light of the foregoing, we find no merit to the arguments advanced by defendant in this assigned error.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent, according 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. 5th Cir. 1990). Our review of the record reveals no errors that warrant corrective action.

Accordingly, for the reasons set forth herein, we affirm defendant's convictions and sentences.

AFFIRMED

      Co-defendant Garrison was charged along with defendant in counts one, two, three, five, seven, and ten and alone in count six (attempted second degree murder of Fausto Alvarez, in violation of La. R.S. 14:27 and 14:30.1 ) and count eight (illegal use of a weapon while committing an armed robbery, in violation of La. R.S. 14:94(F) ). Although the two defendants were tried together, this appeal relates only to Corey Flag.

      Mr. Lutcher eventually returned Ms. Johnson's phone call, and when Ms. Johnson did not answer, a voicemail message was recorded.

      At trial, Dr. Dana Troxclair, an expert forensic pathologist, testified that Mr. Lutcher died from multiple gunshot wounds, some of which were sustained while Mr. Lutcher had his hands up in a defensive position.

      At trial, David Cox of the Jefferson Parish Sheriff's Office DNA Laboratory testified that both defendant and co-defendant Garrison were excluded as contributors to the DNA mixtures found on the cuttings taken from Mr. Lutcher's pockets.

      Ms. Davis' first name was not provided at trial.

      Mr. Joseph is the cousin of Sharamie Joseph, who was killed by a stray bullet in a shooting incident that occurred on December 22, 2015. Evidence regarding this shooting is the subject of Assignment of Error Number Two.

      At trial, Detective Goff denied making any deals with Mr. Nash in exchange for his identifications, but she acknowledged that she was aware that he was trying to cooperate with the Narcotics Division to "work off his charges." She maintained that she did not tell Mr. Nash who to identify in the lineups.

      The State and defense stipulated that if co-defendant Garrison's father were to testify, he would state that on the night of December 22, 2015, his son came into their house with a gunshot wound and told him he had been shot by Mr. Levier.

      Although evidence concerning the December 7, 2015 incident at the RaceTrac had previously been ruled inadmissible under La. C.E. art. 404(B), the trial court permitted the State to question Sergeant Waguespack concerning the incident on the ground that defense counsel "opened the door to it."

      Because defendant does not raise any arguments relating to the sufficiency of the evidence with respect to the statutory elements, we need not address the evidence as it relates to each essential element. See State v. Nelson , 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 500, writ denied , 15-685 (La. 2/26/16), 187 So.3d 468. Nevertheless, a review of the record under State v. Raymo , 419 So.2d 858, 861 (La. 1982), reflects that the State presented sufficient evidence under the Jackson standard to establish the essential statutory elements of the crimes for which defendant was convicted.

      Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. 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. State v. Ray , 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied , 13-1115 (La. 10/25/13), 124 So.3d 1096.

      The ballistics material from both the December 11, 2015 and December 22, 2015 incidents also matched the casings found at a shooting incident on December 7, 2015, where defendant was field-interviewed due to his close proximity to the scene of the shooting.

      In our opinion, we addressed and found no merit to defendant's specific argument that the State failed to prove that co-defendant Garrison was one of the shooters in the December 22, 2015 incident. However, with regard to defendant Flag, we note that there was no evidence presented to suggest that he participated in or was present at the December 22, 2015 incident. Therefore, we do not necessarily agree that this issue, as it pertains to this defendant, was one of the improper admission of other crimes evidence. Regardless, the evidence of the December 22, 2015 shooting was relevant to show the progression of the investigation in this case as well as the connection of the firearm to the December 11, 2015 crimes, in which defendant was positively identified as one of the perpetrators. Thus, the evidence was properly admitted, as to this defendant, pursuant to La. C.E. arts. 401 -403.