author: JOHNSON, J.

text:
    STATE of Louisiana v. Ernest L. PAYNE, Jr.
    NO. 17-KA-553
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis, New Orleans, Rachel L. Africk, Seth W. Shute, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA,
    Bruce G. Whittaker, New Orleans, COUNSEL FOR DEFENDANT/APPELLANT, ERNEST L. PAYNE, JR.,
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   JOHNSON, J.

Defendant/Appellant, appeals his convictions and sentences for two counts of manslaughter from the 24th Judicial District Court, Division "J". For the following reasons, Defendant's convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

On April 11, 2013, a Jefferson Parish Grand Jury indicted Defendant, Ernest L. Payne, Jr., and co-defendant, Jordan T. Hicks, with two counts of second degree murder, violations of La. R.S. 14:30.1. Defendant pleaded not guilty to the charged offenses at his arraignment on May 29, 2013. Following numerous continuances, trial commenced before a 12-person jury as to both Defendant and co-defendant Hicks on May 16, 2017.

Among the witnesses who testified at trial, Deputy Christopher Lewis of the

Jefferson Parish Sheriff's Office stated that, on August 12, 2012, he was patrolling the area surrounding LaPalco Boulevard and Betty Street in Marrero, as a block party was occurring that evening. At some point that evening, he became aware of a shooting in the area that occurred near the intersection of Julie Street and Second Zion Avenue. As he approached the intersection, Deputy Lewis observed a car riddled with bullet holes with two subjects inside. Deputy Lewis found two black males in the vehicle, both suffering from apparent gunshot wounds. The male in the passenger's seat appeared to be deceased, but the male in the driver's seat was still semi-conscious. He observed that the driver was armed with an "AK-47," and the passenger was armed with a Glock pistol, with his finger still on the trigger. Deputy Lewis removed the firearms from the vehicle and secured the scene. He then called for back-up to assist him and also called EMS. The passenger of the vehicle, later identified as Delanta McCall, was declared dead on the scene; however, the driver of the vehicle, later identified as Martin Harry, was transported to the hospital but was later declared deceased. Deputy Lewis was advised by a witness that a white pick-up truck had sped away from the scene moments before he had arrived.

Kira Carter testified that she was living at 1634 Julie Street on August 12, 2012. On that evening, she was sitting outside on the front porch, with three of her friends, Conekia Phillips, Kevineka Clay, and Carrie Cosgrove, and their children, when the shooting occurred. Prior to the shooting, Ms. Carter had walked to her vehicle parked on the street to retrieve a diaper. As she was walking back to her porch, a man who had arrived in a white truck approached her on foot and attempted to speak with her, but she did not pay much attention to him. She also witnessed two vehicles pull up near the stop sign on the corner by her home. Ms. Carter heard the people in the two vehicles exchange words with the others on the porch. She recounted that as she was walking back to the porch, she heard gunshots. Ms. Carter testified that the man who approached her was the driver of the white truck.

About a month after the shooting, Sergeant Travis Eserman, a detective with the Jefferson Parish Sheriff's Office, spoke with Ms. Carter about identifying the man who approached her. She was shown a photographic lineup but was unable to identify any one person with certainty. She did, however, narrow the field to either one of two subjects, one of which was Defendant.

Nakia Williams, a cousin of the victims, testified that he was with them on the day of the shooting, August 12, 2012. He explained he was in the backseat of the victims' car, Jacobee Goff-a friend of the victims-was in the car in front of them, and that they were just driving around. He testified that at the stop sign located at the intersection of Second Zion and Julie, Mr. Goff had rolled down his window, and "asked for Lil Kevin" to a group of women sitting on a porch. Mr. Williams described that after that, he heard gunshots. He stated that Mr. Harry tried to drive away but Mr. Goff's car was blocking them. Mr. Williams testified that he saw someone approaching the driver's side of the car and shooting at the car on an angle from the driver's side. He testified that he also saw Defendant standing next to his white truck, with others shooting from the back of the truck. Mr. Williams indicated that he was ducking in the backseat to avoid gunfire, but then exited the vehicle and ran toward his aunt's house on the next street. Later, when he spoke with detectives, Mr. Williams identified co-defendant Hicks in a photographic lineup as someone he recognized at the scene, "[r]unning around the...driver's side of the vehicle." He also identified Defendant as someone he saw on the scene near the truck.

At the conclusion of the trial, on May 19, 2017, Defendant was found guilty of the responsive verdicts of manslaughter on each of the two counts. On June 6, 2017, the State filed a habitual offender bill of information on count one, alleging Defendant to be a second felony offender.

On June 7, 2017, Defendant filed a motion for new trial and motion for post-verdict judgment of acquittal, which were denied that day in open court. After delays were waived, the trial court sentenced Defendant to 40 years imprisonment with the Department of Corrections on each count to run concurrently with one another.

A hearing on the habitual offender bill of information was held on August 21, 2017. After finding Defendant to be a second felony offender, the trial court vacated its previously imposed sentence on count one and resentenced Defendant, pursuant to La. R.S. 15:529.1, to 70 years with the Department of Corrections without the benefit of probation or suspension of sentence, to run concurrently with his sentence on count two.

On August 23, 2017, Defendant filed a motion to reconsider sentence and a motion for appeal. The trial court denied the motion to reconsider sentence and granted Defendant's motion for appeal on August 28, 2017. The instant appeal followed.

ASSIGNMENT OF ERROR

On appeal, Defendant alleges the trial court erred by admitting the statement of an unidentified out-of-court deponent into evidence over the objections of defense counsel.

LAW AND ANALYSIS

In his sole assignment of error, Defendant argues that the 9-1-1 call contained objectionable hearsay. He contends that an out-of-court statement made within the call was made in response to police dispatcher interrogation regarding the identity of the alleged perpetrator after the incident had concluded; as such, it is testimonial and should not have been admitted into evidence. He avers that its introduction into evidence over objection at trial was contrary to his Sixth Amendment right to confrontation and Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and was not harmless error. Defendant further argues that even if the admission of the 9-1-1 call did not violate the Confrontation Clause, the calls were still inadmissible under the hearsay rules, specifically La. C.E. art. 801(C). He argues that the call was inadmissible hearsay and should not have been admitted into evidence under the excited utterance exception under La. C.E. art. 803(2).

The State responds that Defendant complains in part that the introduced 9-1-1 calls-three total-constituted inadmissible hearsay; however, the State points out that when the calls were admitted into evidence at trial, defense counsel only objected based on "the Crawford case" and made no objection regarding a violation of hearsay rules. As a result, the trial court only ruled upon whether the 9-1-1 calls violated the Confrontation Clause, not whether they violated the Code of Evidence rules. As such, the State contends that any claim made on appeal that the calls were inadmissible hearsay is waived.

The State continues to argue that under the circumstances of the instant case, the statements made in the 9-1-1 calls were nontestimonial in nature because the circumstances objectively indicated that they were given to assist police officers in responding to an ongoing emergency. The State maintains that the questions posed by the 9-1-1 operator were necessary to evaluate the situation, locate potential perpetrators, and dispatch the required assistance. The State avers that, because the primary purpose of the callers' statements and the questioning by the 9-1-1 operator was to address and resolve an ongoing emergency, Defendant's constitutional rights under the Confrontation Clause were not violated. Nevertheless, the State concludes that even if the calls were improperly admitted, claims of error under the Confrontation Clause are subject to a harmless error analysis. The State notes that Defendant was concerned about the 9-1-1 caller stating a "white truck" had just left the scene because Defendant has a white truck. However, the State asserts that the contents of the call describing a white truck fleeing the scene is cumulative to other evidence at trial, thus any erroneous admission of the calls is harmless.

During the testimony of Nancy Webber with the Jefferson Parish Sheriff's Office 9-1-1 Center, the State moved to introduce and publish State's Exhibit 2, a CD containing the three 9-1-1 calls in this case. At that point, defense counsel objected "on the grounds of hearsay under the Crawford case." The record reflects a bench conference was held. During the conference, the State responded that "[w]hen it is in the course of an ongoing emergency State versus Washington said that there is no confrontation. It's not testimony. So you don't have a Crawford issue." Defense counsel responded that the calls were being offered for the truth of the matter asserted, and the problem was that the person who made the statement "that the subjects are fleeing in a white truck" was unavailable, which was not allowed by Crawford . Defense counsel argued that, unlike the ongoing emergency exception asserted by the State, the instant case involved a scenario "after the shots are over with and you are talking about someone fleeing the scene and giving a description," which he argued was clearly hearsay unless the person who made the 9-1-1 call was present.

In the second of the three 9-1-1 calls, the unidentified caller reported the need for assistance from police and that both of the victims had been shot in the head. After assuring that help was on the way, the 9-1-1 dispatcher asked, "could you tell me who shot 'em?" The caller responded, "we don't know. It was a white truck. They went up Julie Street. They made a left. A white pickup truck. Somebody was in the back of it laying down. They made a left."

The record reflects the trial court listened to all three of the 9-1-1 calls and remarked:

the first one clearly seems to be immediately during or after the voices are clearly frazzled and the level of excitement is obviously very high based upon the call.
The second call is from someone else who was more calm. It is difficult to tell whether that it is in as close in time proximity to the other call. It appears to be based upon the printout that it happened at the same time, right? The call came in at the same time.

The record reflects that the State indicated that based upon the report, the first call was at 19:25:22, and the second call was two minutes later at 19:27:45. The third call was not made until 21:26:14. The State clarified that the third call was clearly outside the course of the ongoing emergency but noted that it was exculpatory and could not be excluded.

After the bench conference ended, the trial court ruled that:

For purposes of the record, just so the Court's ruling is clear. That the State [h]as offered 911 calls taken at the time of or shortly after the incident in question.
* * *
Based upon the timing of the events, the nature of the calls the Court does not believe it presents a Crawford issue given that it is either at the time of or immediately after that, if it is in fact after the incident involved, so the Court is going to allow those calls over the objection of Defense Counsel.

Additionally, in Defendant's motion for new trial, he reasserted that the court erred in allowing the State to play the 9-1-1 recording in which an unavailable witness stated that "the gunmen who committed the homicide escaped in a white pickup truck." He reiterated that the unidentified caller was not reporting the shooting as it was happening; rather, the call was several minutes after the shooting and was testimonial hearsay containing a description of Defendant's white pick-up truck fleeing from the scene. At the hearing on the motion, defense counsel further argued that the admission of the call violated Defendant's right to confront his accusers, which included an unknown caller linking Defendant to the homicide by stating his truck fled the scene.

The trial court, in denying the motion, reasoned:

there were a number of witnesses, those that identified and those identified by the Court that spoke of a white truck and Mr. Payne's involvement in bringing or transporting the other defendant and the other alleged persons involved in this particular incident to the scene of the crime. It was simply not the 911 call to the extent that there was any error in allowing that call in which I don't believe that there was because I do believe it formed part of the initial incident. However, to the extent there was an error in allowing that call in there was certainly ample other testimony from other witnesses who basically said the same thing. The white truck was present. Some identified it as Mr. Payne's truck, some identified it as Mr. Payne driving the truck. So there was clearly evidence other than that one single 911 call, so that motion is denied as well.

On appeal, Defendant argues that the 9-1-1 call should not have been admitted into evidence because the substance of the call was testimonial in nature and, therefore, violated his rights under the Confrontation Clause of the Sixth Amendment to confront witnesses against him. The United States Supreme Court has held that this guarantee, which is extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York , 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). The Confrontation Clause bars the admission of an out-of-court "testimonial" statement against a criminal defendant unless the declarant is unavailable, and the defendant had a proper opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; Davis v. Washington , 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

In support of this argument, Defendant relies on the United States Supreme Court's decision in Crawford v. Washington , supra , wherein the Court held that the admission of a recorded statement given to police by the defendant's wife violated the defendant's right under the Confrontation Clause because the statement was hearsay, because it was testimonial in nature, and because his wife did not testify at trial due to the State's marital privilege. Most significantly, because his wife did not testify at trial, the defendant had no other opportunity to cross-examine her. The Court specifically declined to define the term "testimonial," stating only that "[w]hatever else the term covers, it implies at a minimum to...police interrogation." Crawford , 541 U.S. at 68, 124 S.Ct. 1354.

The Supreme Court later elaborated on the meaning of testimonial statements in connection with the Sixth Amendment's Confrontation Clause in Davis v. Washington , supra -a case dealing specifically with the admission of statements made during a 9-1-1 call. In Davis , the victim called 9-1-1 to report a domestic altercation with her ex-boyfriend. Id. , 547 U.S. at 817, 126 S.Ct. 2266. During the call, the victim identified the defendant as her attacker and described the specifics of the ongoing assault in response to questions by the 9-1-1 operator. Id. , 547 U.S. at 817-18, 126 S.Ct. 2266. The trial court allowed the recording of the 9-1-1 call to be admitted into evidence despite the fact that the victim did not testify at trial. Id. , 547 U.S. at 822, 126 S.Ct. 2266. In finding the recordings to be nontestimonial in nature, and therefore admissible, the Supreme Court explained:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id.

The Court reasoned that the statements were nontestimonial because "[a] 911 call...at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Davis , 547 U.S. at 826, 126 S.Ct. 2266. The Court noted that the victim was "speaking about events as they were actually happening, rather than 'describ[ing] past events' " and that "[a]lthough one might call 911 to provide a narrative report of a crime absent any imminent danger, [the victim's] call was plainly a call for help against bona fide physical threat." Id. , 547 U.S. at 827, 126 S.Ct. 2266. The Court also reasoned that the nature of the questions posed by the 9-1-1 operator indicated that the purpose of the interrogation was to "resolve the present emergency, rather than simply to learn ...what had happened in the past." Id. Finally, the Court reasoned that the fact that the victim's answers were frantic and provided over the phone, in an environment that was not tranquil or even safe, indicated that the statements were nontestimonial. Id.

Finally, in State v. Norah , 12-1194 (La. App. 4 Cir. 12/11/13), 131 So.3d 172, writs denied , 14-0084 (La. 6/13/14), 140 So.3d 1188 and 14-0082 (La. 6/20/14), 141 So.3d 287, the Louisiana Fourth Circuit noted that in Michigan v. Bryant , 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Court provided a framework to assist lower courts in determining whether a statement qualifies as testimonial. The Bryant Court emphasized that "the relevant inquiry is...the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." Id. , 562 U.S. at 360, 131 S.Ct. 1143. The Court then set forth a three-part inquiry.

Our inquiry must first began with determining whether there was an ongoing emergency. The existence of an "ongoing emergency" at the time of an encounter between an individual and the police is among the most important circumstances informing the "primary purpose" of an interrogation. Id. , 562 U.S. at 361, 131 S.Ct. 1143. This is a "highly context-dependent inquiry." Id. , 562 U.S. at 363, 131 S.Ct. 1143. Crimes, such as aggravated assault and murder, have much broader "zones of danger" which can extend to the public-at-large and the police. See Norah , 131 So.3d at 187 (citing Bryant , 562 U.S. at 363, 131 S.Ct. 1143 ). The scope and duration of an ongoing emergency can also fluctuate based on consideration of a number of factors, including the type of weapon used in the crime and the extent and nature of the victim's injuries. In Bryant , the Court found that the police were objectively reasonable in perceiving the situation as an ongoing emergency with possible significant danger to the public and themselves. See Bryant , 562 U.S. at 363-64, 131 S.Ct. 1143. The existence vel non of an ongoing emergency, however, is not dispositive of whether a statement is testimonial. See id. , 562 U.S. at 366, 131 S.Ct. 1143.

Second, courts should consider the formality of the interrogation. See id. , 562 U.S. at 366, 131 S.Ct. 1143. More formal interrogations are generally indicative of non-emergency situations and "testimonial" statements being given. Id.

Third, courts should determine the "primary purpose" of the interrogation through examining the statements and actions of both the declarant and the interrogator. See Bryant , 562 U.S. at 367, 131 S.Ct. 1143. This inquiry examines both parties as reasonable actors in their actual circumstances, including the severity of the victim's injuries. Id. For example, in Bryant , when the police approached the victim, they simply asked, "[w]hat happened?" This question, along with the victim's response providing the factual background of the shooting as well as the identity of his shooter, were objectively reasonable in the context of that ongoing emergency. See id. , 562 U.S. at 376, 131 S.Ct. 1143.

In this matter, the situation surrounding the shooting qualifies as an "ongoing emergency." A shooting is a crime that, by its nature, the police can objectively assume carries one of the greatest risks to the victim, the public, and themselves in responding to the incident. In this case, two men were shot in public with no indication to the police that the shooter(s) had surrendered. The police also had no knowledge of the whereabouts or the motive of the shooter(s). It was objectively reasonable for the police to treat this situation as an ongoing emergency. The instant factual scenario is similar to what occurred in Bryant -a man was shot, a shooter was at-large with a gun, and the injuries to the victim were serious. See id. , 562 U.S. at 375, 131 S.Ct. 1143.

Next, the questioning during the 9-1-1 call was informal. Similar to Bryant , the questioning occurred in the immediate aftermath of a shooting and prior to the arrival of emergency medical services or the police. See Bryant , 562 U.S. at 376, 131 S.Ct. 1143. The questions asked by the operator related to the well-being and location of the victims as well as the whereabouts and identity of the shooter(s). The first two calls to 9-1-1 were made while there was still potential danger to the victims and bystanders that the perpetrator(s) could return to the scene.

Furthermore, the 9-1-1 operator's questions were objectively reasonable as part of the police's response to this ongoing emergency-asking callers about the whereabouts of the shooter(s) is an objectively reasonable question. In addition, the caller's response of providing the factual background of the shootings was reasonable to enable police assistance to meet an ongoing emergency.

Based upon the foregoing facts, we find that the statements contained in the recording of the 9-1-1 calls were non-testimonial and, therefore, were not a violation under Crawford ; thus, the statements did not violate Defendant's constitutional right to confront his accuser.

Nevertheless, a violation of a defendant's right to confrontation is subject to a harmless error analysis. State v. Placide , 11-1061 (La. App. 5 Cir. 6/28/12), 109 So.3d 394, 399-400 ; State v. Merwin , 07-807 (La. App. 5 Cir. 4/15/08), 984 So.2d 842, 846. An error is harmless when the guilty verdict was surely not attributable to the error. Whether an error is harmless in a particular case depends upon many factors, including the following: (1) the importance of the witness' testimony; (2) whether the testimony was cumulative in nature; (3) whether corroborating or contradictory evidence regarding the major points of the testimony existed; (4) the extent of cross-examination permitted; and (5) the overall strength of the State's case. Id. at 846.

The description of a white pickup truck as the suspect's vehicle that was provided in the 9-1-1 call was cumulative to other evidence at trial. A number of witnesses identified a white truck at the scene. For example, Deputy Lewis testified that he was advised by a witness that a white pick-up truck had sped away from the scene moments before he had arrived on the scene. Additionally, Mr. Williams testified he saw Defendant standing next to his white truck during the shooting. Ms. Carter and Ms. Clay indicated they saw a white truck at the scene. Further, during his second statement, Defendant indicated that he and his white truck were on Julie Street at the time of the shooting. Based upon the foregoing, we find that any error the trial court may have committed admitting the 9-1-1 call into evidence was harmless.

Errors Patent Discussion

The record was reviewed 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). No errors that require corrective action were found.

DECREE

For the foregoing reasons, Defendant's sentences and convictions are affirmed.

AFFIRMED

      Co-defendant Jordan T. Hicks has also appealed his convictions and sentences under companion case number 17-KA-419.

      The indictment was amended on the same date to add Defendant to the second degree murder charge in count two.

      As indicated in the ballistics expert's testimony, the weapon was actually a Century Arms 762 rifle.

      Delanta McCall was referred to by his nickname, "Dig."

      Martin Harry was referred to by his nickname, "Marty."

      Dr. Susan Garcia performed the autopsies of the victims. She classified the manner of death as homicides, and the cause of death from gunshot wounds for both victims. She also classified the gunshot wounds they received as distant, meaning from more than three feet away. She further explained that Mr. McCall sustained a single gunshot wound to his head, whereas Mr. Harry sustained two gunshot wounds-one to his head and another to his neck.

      Ms. Clay similarly indicated during her testimony that she saw a white truck with young men dressed in white shirts pass in front of her house that day.

      Co-defendant Hicks was found guilty as charged on both counts.

      This Court has previously held that when a trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. State v. Jamison , 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.

      Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      At trial, even though defense counsel objected to the introduction of all three of the calls, he seemed to argue mostly regarding the second call. On appeal, Defendant only briefed argument regarding the second of the three calls.

      In the first of the three calls, the unidentified caller expressed the need for police, provided the address for the scene, and informed the 9-1-1 operator that there were two dead bodies. After repeatedly telling the caller to calm down, the 9-1-1 operator asked, "who shot 'em" and "did you see who shot 'em;" however, the caller responded negatively. In the third call, the unidentified caller advised that the "person who did that...double homicide today in Marrero...was Arty White."

      Sergeant Eserman testified that he tried to contact all the 9-1-1 callers from the 9-1-1 caller printout. He testified that he was able to call the number that made the second call; however, the person who answered "advised that they did not want to speak to the police and please not call them back." He testified that one of the callers was Ms. Philips, whom he spoke to and who later testified at trial; however, she stated she did not witness the shooting. He further advised that the number who made the "Arty call" called from an "un-serviced phone." Defendant did not object to the unavailability of the declarant.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    Tammy BLANCHARD v. GERRY'S PLACE, INC., Jefferson Parish Consolidated Drainage District No. 2, Parish of Jefferson, John F. Young, Jr., ABC Contractors, DEF Insurance Company, and GHI Insurance Company
    NO. 18-CA-106
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, TAMMY BLANCHARD, James E. Shields, Sr.
    COUNSEL FOR DEFENDANT/APPELLEE, FLEMING CONSTRUCTION COMPANY, LLC AND SHAVERS-WHITTLE CONSTRUCTION, LLC, Brian T. Carr, Metairie, Celina J. McGehee, Sara A. LaRosa
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

Plaintiff, Tammy Blanchard, appeals a trial court judgment which granted an exception of prescription filed by defendants, Fleming Construction Company, LLC and Shavers-Whittle Construction, LLC. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 13, 2015, plaintiff, Tammy Blanchard, filed a petition for damages naming the following parties as defendants: Gerry's Place, Inc. ("Gerry's Place"); Jefferson Parish Consolidated Drainage District No. 2 ("the Drainage District"); the Parish of Jefferson ("Jefferson Parish"); John F. Young, Jr., then Jefferson Parish President ("Mr. Young"); ABC Contractors ("ABC"); DEF Insurance Company ("DEF"); GHI Insurance Company ("GHI"); and JKL Insurance Company ("JKL"). The petition alleged that the Drainage District, Jefferson Parish, and Mr. Young entered into a contract with ABC to perform work on and/or to widen a drainage canal on Behrman Highway in Jefferson Parish. As a result of this construction, Gerry's Place, a nearby business, instructed its customers to park in the parking lots of other nearby businesses. On January 15, 2015, Ms. Blanchard was going to Gerry's Place to participate in a pool league. She parked in the parking lot of a nearby business and walked across a grassy pathway which allegedly had been provided by defendants to get to Gerry's Place. As she proceeded on the grassy pathway, Ms. Blanchard allegedly tripped over some concrete which allegedly had been dumped on the pathway by defendants and which had become camouflaged with dirt and grass. The petition asserted claims of negligence and strict liability, and asserted that defendants were liable to her jointly, severally, and in solido for the damages she allegedly suffered as a result of her fall.

On January 9, 2017, Ms. Blanchard filed an amended petition for damages, adding Fleming Construction Company, LLC ("Fleming") as a defendant. The amended petition claimed that the Drainage District and Jefferson Parish entered into a contract with Fleming in 2014 to perform the work on the drainage canal on Behrman Highway. On June 23, 2017, Ms. Blanchard filed a second amended petition for damages, adding Shavers-Whittle Construction, LLC ("Shavers-Whittle") as an additional defendant. In the second amended petition, Ms. Blanchard alleged that the Drainage District and Jefferson Parish entered into a contract with Fleming and/or Shavers-Whittle to perform the work on the drainage canal on Behrman Highway.

On October 23, 2017, Fleming and Shavers-Whittle jointly filed a peremptory exception of prescription. According to the memorandum attached to the exception, on November 29, 2016, Gerry's Place was dismissed from the case with prejudice. Then, on September 25, 2017, the trial court granted a motion for summary judgment in favor of the Drainage District, Jefferson Parish, and Mr. Young, therein dismissing all claims against them with prejudice. Accordingly, Fleming and Shavers-Whittle were the only remaining defendants in the matter at that time. In their exception, Fleming and Shavers-Whittle argued that the amended petitions naming them as defendants prescribed on their faces since they were filed more than a year from Ms. Blanchard's injury. Because no liability existed on the part of the timely-sued defendants and no joint or solidary obligation existed among them, prescription had not been interrupted as to Fleming and Shavers-Whittle, the untimely-sued defendants. Further, Fleming and Shavers-Whittle argued that the use of the fictitious title "ABC Contractor" in the original petition did not interrupt prescription as to said defendants.

In opposition to the exception of prescription, Ms. Blanchard contended that the doctrine of contra non valentem interrupted prescription against Fleming and Shavers-Whittle. She argued that in ongoing discovery, Jefferson Parish could not and would not reveal the contractors who were performing the subject construction. She further argued that when Fleming was finally named as the contractor, the amended petition was filed naming it as a defendant. She noted that in its answer to the petition, Fleming stated, "Fleming admits the existence of a certain contract with the Parish of Jefferson." Further, Fleming, in response to discovery requests, produced a contract between Fleming and Shavers-Whittle that showed that Shavers-Whittle was the subcontractor on the subject project. Accordingly, Ms. Blanchard then amended her petition a second time, adding Shavers-Whittle as an additional defendant. Then at the corporate deposition of Fleming, the corporate representative testified that Fleming had the contract to do subject work on the canal where Ms. Blanchard was injured, and it employed Shavers-Whittle to do the work. Ms. Blanchard argued that she did her due diligence in finding the new defendants through discovery and the La. C.C.P. art. 1442 corporate deposition of Fleming.

Following a hearing on the exception on December 6, 2017, the trial court issued a judgment on December 19, 2017 granting the exception of prescription and dismissing Fleming and Shavers-Whittle with prejudice. In its detailed reasons for judgment, the trial court noted that since the amended petitions were filed more than a year after the injury, they were prescribed on their faces as to the claims against Fleming and Shavers-Whittle. Additionally, summary judgments were previously granted, prior to the hearing on the exception of prescription, in favor of Gerry's Place, Jefferson Parish, the Drainage District, and Mr. Young, dismissing all of Ms. Blanchard's claims against these defendants. The timely-filed suit against these defendants did not interrupt prescription as to Fleming and Shavers-Whittle, the untimely-sued defendants, since the timely-sued defendants were ultimately found to not be liable and were accordingly dismissed from the ligation. Further, the trial court noted that including parties with fictitious titles does not interrupt the running of prescription.

Addressing the claims of contra non valentem , the trial court noted that Ms. Blanchard's opposition failed to provide specific details about when and how Jefferson Parish was asked to provide names of any contractors on the drainage project, specifically how Jefferson Parish and/or the other defendants refused to reveal the contractors' identities or what Ms. Blanchard did in response to defendants' refusals. The trial court noted that Ms. Blanchard provided no proof at all that Jefferson Parish ever refused to reveal the contractors' identities. At the hearing on the exception, Ms. Blanchard presented no evidence as to the dates and substance of discovery requests made to ascertain the names of the property's owners and of contractors working in the area in question. The trial court pointed out that the record shows that Ms. Blanchard never filed any motions to compel Jefferson Parish or anyone else to provide this information. Additionally, the trial court specifically inquired as to the efforts Ms. Blanchard made to ascertain the names of the property owner(s) from the public records and tax records independent of the discovery process. Counsel for Ms. Blanchard replied that he believed no one owned the property where the accident occurred. However, the trial court found that "a brief review of Exhibit 2 to Plaintiffs own Memorandum in Opposition to Peremptory Exception of Prescription [Fleming's Subcontract with Shavers-Whittle], shows that the Industry Canal Drainage Improvement Contract (Oakwood Canal to Algiers Outfall Canal) contains a public Solicitation Number (No. SELA-14-11-H-OO 11). This indicates that information pertaining to the project and the contract between Fleming and the U.S. Army Corps of Engineers was in fact publicly available." (Emphasis in original.)

According to the trial court, ownership of the land could have been ascertained from public records and/or tax records, but no evidence was presented of any attempts to ascertain the names of property owners or contractors so they could have been timely sued. Incidentally, the trial court noted that defendants were forced to file two motions to compel because Ms. Blanchard failed to respond for months to defendants' written discovery requests.

The trial court found that because the fact that the land in question was owned and maintained by parties other than Gerry's Place, Jefferson Parish, the Drainage District, and Mr. Young was "reasonably knowable" by Ms. Blanchard within the prescriptive period in the exercise of reasonable diligence, the fourth category of the doctrine of contra non valentem did not apply.

On appeal, Ms. Blanchard argues the following assignments of error:

1) The trial court erred in finding that appellant should have discovered that Jefferson Parish did not own the land where appellant's accident occurred, even though ownership does not apply in this matter;
2) The trial court erred in not considering the fact that Jefferson Parish believed it was involved in the construction on the canal, as did appellant, and believed it had a contract with a contractor and did not consider that Jefferson Parish did not reveal the name of the contract [sic ] until after one year prescription had passed; the trial court erred in not considering that Jefferson Parish would have filed summary judgment immediately if it did not believe and represent that it was involved and appellant relied upon the parish, triggering La. C.C. art. 3467 ;
3) The trial court erred in finding that appellant should have timely discovered the names of appellee contractors and timely included them in the petition for damages, within one year of the accident.
4) The trial court erred in failing to apply La. C.C. art 3467contra non valentem , under the disputed facts shown; and
5) The trial court erred in failing to see that Jefferson Parish's actions trigger contra non valentem as was proven by Jefferson Parish's summary judgment.

LAW AND ANALYSIS

Delictual actions are subject to a liberative prescription of one year from the date the injury or damage is sustained. La. C.C. art. 3492. Prescription is interrupted by the commencement of suit against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. The interruption of prescription by suit against one solidary obligor is effective as to all solidary obligors. La. C.C. arts. 1799 and 3503. The same principle is applicable to joint tortfeasors. La. C.C. art. 2324(C). However, a suit timely filed against one defendant does not interrupt prescription against other defendants not timely sued, where the timely-sued defendant is ultimately found not liable to the plaintiff, since no joint or solidary obligation would exist. Renfroe v. State , 01-1646 (La. 2/26/02), 809 So.2d 947, 950 ; Spott v. Otis Elevator Co. , 601 So.2d 1355 (La. 1992).

Although La. C.C. art. 3467 provides that "prescription runs against all persons unless excepted by legislation," the jurisprudential doctrine of contra non valentem is an exception to this statutory rule and operates as a means of suspending the running of prescription when the circumstances of a case fall within one of four categories. Wells v. Zadeck , 11-1232 (La. 3/30/12), 89 So.3d 1145, 1150. The Louisiana Supreme Court has explained that the doctrine of contra non valentem "is used to soften the occasional harshness of prescriptive statutes." Id. Nevertheless, the court has cautioned that the doctrine only applies in exceptional circumstances. Renfroe , 809 So.2d at 953.

Contra non valentem applies in four factual situations to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. These categories allow "the courts to weigh the 'equitable nature of the circumstances in each individual case' to determine whether prescription will be tolled." Wells , supra at 1150, quoting Plaquemines Parish Commission Council v. Delta Development Company, Inc. , 502 So.2d 1034, 1054-55 (La. 1987).

The fourth category, also known as the discovery rule, "prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff." Cole v. Celotex Corp. , 620 So.2d 1154, 1156 (La. 1993). Under this category of contra non valentem , prescription begins to run when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort. Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502, 510. Constructive knowledge is "whatever notice is enough to excite attention and put the injured party on guard and call for inquiry." Id. at 510-11. "Prescription will not begin to run at the earliest indication that a plaintiff may have suffered some wrong." Cole , 620 So.2d at 1157, citing Jordan v. Employee Transfer Corp. , 509 So.2d 420 (La. 1987).

The Louisiana Supreme Court has observed the difficulty in identifying the precise point in time at which a claimant becomes aware of sufficient facts to begin the running of prescription, and has explained that when prescription begins to run depends on the reasonableness of a plaintiff's action or inaction. Id. "[T]he ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiff's action or inaction in light of his education, intelligence, and the nature of the defendant's conduct." Marin v. Exxon Mobil Corp. , 09-2368 (La. 10/19/10), 48 So.3d 234, 246. Contra non valentem will not apply to exempt a plaintiff's claim from the running of prescription "if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned." Id.

In a peremptory exception of prescription, the mover bears the burden of proof. However, if the petition is prescribed on its face, the burden shifts to the plaintiff to negate the presumption by establishing prescription has been suspended or interrupted. Taranto v. Louisiana Citizens Property Insurance Corp. , 10-105 (La. 3/15/11), 62 So.3d 721, 726. When evidence is introduced during a hearing on an exception of prescription, the appellate court must review the entire record to determine whether the trial court's factual findings were manifestly erroneous. Carter v. Haygood , 04-646 (La. 1/19/05), 892 So.2d 1261, 1267.

In the present case, it is undisputed that the petitions naming Fleming and Shavers-Whittle as defendants were prescribed on their faces as they were filed over one year after the alleged injury occurred. Ms. Blanchard therefore bore the burden of proving her claims were not prescribed. Further, to note, all other defendants were dismissed previously by summary judgment; thus, as the trial court properly found, prescription was not interrupted by the timely filing of the petition against the originally named defendants.

On appeal, Ms. Blanchard argues that Jefferson Parish believed it was involved in the subject construction project, as it did not file a motion for summary judgment for nearly two years, thus indicating a complicated situation wherein contra non valentem would apply. Ms. Blanchard claims Jefferson Parish attempted to produce the contract but could not locate it. Jefferson Parish finally did name Fleming as the contractor and produced a contract, but it was not until after the one-year prescriptive period had run. Ms. Blanchard argues Jefferson Parish and the other defendants did acts to prevent her from timely discovering Fleming and Shavers-Whittle. Ms. Blanchard also argues that the trial court erred because in its reasons for judgment, it stated that Ms. Blanchard failed to discover the owner of the property within a year of the accident. Ms. Blanchard argues that Jefferson Parish and the contractors were sued for negligence in maintaining the construction site, failing to provide safe egress and ingress, and for leaving a hazard, which had "nothing to do with ownership."

In Ms. Blanchard's opposition to the exception, she provided no details or evidence in support of her argument that Jefferson Parish could not and would not timely produce the names of the contractors. She failed to include any discovery that was propounded to Jefferson Parish or the other defendants, and she did not document specifically when she requested the information. She also failed to show any discovery responses or communication from Jefferson Parish to evidence the fact that they could and would not produce the contractors' names. Because the transcript of the hearing was not included as part of this designated record, we are unsure of the testimony at the hearing or if any evidence was presented at the hearing.

Accordingly, upon review, we find the trial court did not abuse its discretion in finding that Ms. Blanchard failed to show that she exercised reasonable diligence in naming the proper party defendants. Based on our review of the designated record before us, we find that Ms. Blanchard has failed to meet her burden in showing that the prescriptive period was suspended by the doctrine of contra non valentem.

CONCLUSION

For the foregoing reasons, the judgment granting the peremptory exception of prescription is affirmed.

AFFIRMED

      The petition noted that the true identities of the contractor and all three insurance companies would be identified when they would become known.

      Though the opposition was included in the record, Exhibit 2 was not.

      The assignments of error, which all essentially include arguments about the trial court failing to find the doctrine of contra non valentem applicable herein, are addressed together.

      The motions for summary judgment and subsequent findings by the trial court dismissing Gerry's Place, the Drainage District, Jefferson Parish and Mr. Young are not part of this designated record. However, on appeal, it is not contested that said parties were dismissed.

      The inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee. When the record does not contain an adequate transcript, narrative of facts or other satisfactory evidence, an appellate court can apply the presumption that the trial court's judgment is correct and affirm. See Alexander v. Par. of St. John the Baptist , 09-840 (La. App. 5 Cir. 3/23/10), 33 So.3d 999, 1005.


text:
    STATE of Louisiana v. Jordan T. HICKS
    NO. 17-KA-419
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, JORDAN T. HICKS, Gwendolyn K. Brown, Baton Rouge
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   JOHNSON, J.

Defendant/Appellant, Jordan Hicks, appeals his convictions for two counts of second degree murder from the 24th Judicial District Court, Division, "J". For the following reasons, Defendant's convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

On April 11, 2013, a Jefferson Parish Grand Jury indicted Defendant and co-defendant, Ernest L. Payne Jr., with two counts of second degree murder, violations of La. R.S. 14:30.1. Defendant pleaded not guilty to the charged offenses at his arraignment on May 29, 2013. Following numerous continuances, trial commenced before a 12-person jury as to both Defendant and co-defendant Payne on May 16, 2017. On May 19, 2017, Defendant was found guilty as charged on both counts.

On June 2, 2017, Defendant filed a motion for new trial, arguing that because the trial court would not allow the "privately hired attorney to represent defendant," the trial court prevented him from choosing his own representation, and as a result, he was entitled to a new trial. This motion was heard on June 7, 2017, and after argument by counsel, the trial court denied the motion. After waiving delays regarding sentencing, the trial court sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence on each count to run concurrently with each other. Defendant filed a motion for appeal in open court following sentencing, which the trial court granted on June 8, 2017. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the trial court erred in: 1) denying his right to proceed to trial with the counsel of his choosing; 2) denying his retained counsel's request for a continuance; and 3) denying his motion for new trial.

LAW AND ANALYSIS

Assignments of Error Numbers One, Two and Three

In his assignments of error, Defendant argues that the trial court erred in denying his motion for continuance, thereby denying him his right to counsel of his choice. As a result, Defendant contends that the trial court erred in denying his motion for new trial based on this allegation.

The record reflects that Defendant was arraigned on May 29, 2013, and was initially represented by John Benz of the Public Defender's Office. Subsequently, on August 15, 2014, Martin Regan filed omnibus motions, including a motion to enroll as counsel of record. From August 19, 2013 through April 21, 2014, the minute entries reflect that Aidan Shah, with Mr. Regan's firm, made appearances on Defendant's behalf. On June 25, 2014, Mr. Shah filed a motion to withdraw as counsel of record asserting that "[c]ircumstances have developed in the course of representation that have caused an irremediable breakdown in the attorney-client relationship which prevents undersigned counsel from providing effective assistance of counsel." Mr. Benz was then reappointed as counsel of record on July 14, 2014. The minute entries reflect that Mr. Benz made appearances on Defendant's behalf from that point onward.

Nearly three years later, on May 1, 2017, and two weeks before the scheduled trial date, attorneys Martin Regan and Adam Koob appeared in court, with Mr. Koob indicating they were "enrolling on Mr. Hicks." The record reflects that all parties approached and a bench conference was held off the record. The court then stated,

Martin Regan is present in the courtroom today. Mr. Benz is also present in the courtroom. Mr. Benz has been representing Mr. Hicks up to this point.
Mr. Regan and Mr. Koob have approached the Court this morning indicating that they have had discussions with Mr. Hicks' family about representing him.
Mr. Regan I just want to state something for the record so that it is all very clear. Mr. Hicks' trial is set and has been set for sometime for the court's trial docket of May 15...[i]t is a 2012 murder case that has been continued for any number of reasons over the course of those years. Mr. Hicks is entitled to have his trial. The District Attorney is entitled to have their trial as this matter is presently set and the Court has cleared its docket in anticipation of trying the case this week. This case will go forward on that week.
That being said, certainly, Mr. Hicks has a right to choose his Counsel. If he intends to hire you and if you intend to enroll as Counsel of Record, I am not jamming you at this point because I understand from the discussion at the bench that you have some other issues that you need to resolve.
Just understand that if you file a motion to enroll in this case, you will be his attorney and it will go to trial on May 15, which is at this point only 14 days away.

Mr. Regan then indicated that he was "familiar with the case having represented him previously," though he had two other "newer" matters set in a different jurisdiction on May 15, and he indicated he would "see what [he could] do to move those," and "let the Court know." The court then explained, "so [that] everything [was] very clear," that Mr. Benz was still Mr. Hicks'

attorney "until such time as the Court enrolls and dismisses you or enrolls Mr. Regan and allows you to withdraw. If Mr. Regan never files the motion, then you are on for May 15th." The court went on to state, after Mr. Koob interjected, that

Mr. Koob indicated that in anticipation of the representation a motion may have already been filed. Since I have told you, Mr. Regan, on the record that if it gets filed, I am signing it. But that means you understand-we understand that may have been filed not prematurely, but in advance of this discussion and as such I will hold that motion until such time as I get a call from your office indicating that, yes, it is okay to sign it.

The instant record does not contain a motion to enroll, signed or otherwise, filed by Mr. Regan or Mr. Koob.

The State responds that, importantly, the May 1, 2017 transcript does not reflect that Mr. Regan and Mr. Koob were actually retained as counsel by Defendant or his family (as is stated in the motion for new trial). The State notes that neither Mr. Koob nor Mr. Regan filed a motion to enroll, nor did Mr. Benz file a motion to withdraw. Moreover, the record also reflects that no written motion to continue the May 15, 2017 trial date was filed by any party. Additionally, the record reflects that Defendant proceeded to trial without objection.

Based on these facts, the State asserts that there are no pretrial rulings concerning this alleged issue of which Defendant complains-there were no written motions filed concerning the alleged issue, nor were there oral motions, rulings on oral motions, or objections made.

At the outset, there is no evidence in the record that a written motion for a continuance was filed or that an oral motion was made seven days in advance of the May 15, 2017 trial, as per La. C.Cr.P. art. 707. While the record reflects at the May 1, 2017 hearing the trial judge's inclination not to continue the trial, a motion to continue was not raised prior to trial. Moreover, there was neither an objection to the trial court's statement that trial could go forward on May 15, 2017, nor an objection at the beginning of jury selection on May 16, 2017. The record fails to indicate that a representative of Mr. Regan's office made another appearance on the record, lodging an objection, enrolling in the case, or otherwise. Defendant has no right to argue error in the court's failure to grant a continuance if no such motion was made. Further, there was no trial court ruling upon which Defendant could have objected. To preserve the right to seek appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841.

Nevertheless, Defendant alleged the trial court erred in denying his motion for new trial predicated on this issue. In the motion for new trial, Defendant argued that "prior to the trial of this matter defendant's family hired a private attorney to represent him in this matter," and that the court "made it clear that it had no intention" of continuing the established May 15, 2017 trial date. Defendant argued that he had an absolute right to engage an attorney of his choice to represent him and "because the court would not entertain a continuance in this matter to allow the privately hired attorney to represent defendant the court prevented the defendant from choosing his own representation," and as a result, he was entitled to a new trial. Defendant also argued that the verdict was contrary to the law and evidence and alternatively, moved for a new trial because the ends of justice would be served by the granting of a new trial.

At the hearing on the motion for new trial, the trial court denied the motion, reasoning:

[T]he insufficiency of the evidence and motion for New Trial, as well as, an argument that Mr. Hicks was denied right to the Counsel. I don't think there is any question that Mr. Benz was involved in this case for an extend period of time....At no point prior to immediately preceding to trial did Mr. Regan ever enter this court room and say that he wanted to be Mr. Hicks' attorney. He was offered the right to do so. The Court simply made him aware of the currently scheduled trial and informed him that the trial was not going to be continued because of a last minute change of attorneys. He had every right to represent Mr. Hicks.
The Court would not have opposed him representing Mr. Hicks. So should he choose to represent Mr. Hicks, he [was] allowed to do so. However, he did not. He did not appear at trial or represent Mr. Hicks and at no time did the Court tell him he couldn't. The Court simply made him aware that there was a presently schedule trial and he would be expected to comply with that trial schedule, given the length of the time the case had been set for that trial date, given the number of continuances, given how long the case had been lingering, certainly Mr. Hicks was entitled to his day in court. He had been waiting in jail long enough for that day. I think it was appropriate to go forward on that day.

The State notes the grounds upon which a motion for a new trial may be based, citing La. C.Cr.P. art. 851. The State avers that the motion for new trial does not contend that the allegation concerning Mr. Regan and Mr. Koob falls within any of the first four grounds set forth in the article. The State contends that to the extent that Defendant may be challenging the denial of his motion for new trial pursuant to ground number five, which is separately alleged as a ground for relief in the motion, the State notes that the trial court's ruling is reviewable under an abuse of discretion standard. The State argues that the circumstances presented do not demonstrate that an injustice was done to Defendant, or that the trial court abused its discretion in denying him a new trial based upon ground five of La. C.Cr.P. art. 851. The State maintains that the transcript of May 1, 2017 reflects that private counsel did not move to enroll, appointed counsel did not move to withdraw, and no written motion for continuance of the May 15, 2017 date was filed.

Both the federal and state constitutions provide that a criminal defendant has the right to counsel of his own choosing to defend him. State v. Leggett , 363 So.2d 434, 436 (La. 1978) ; State v. Reeves , 06-2419 (La. 5/5/09), 11 So.3d 1031, 1055, cert. denied , 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). However, this right is not absolute and it must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings. State v. Burbank , 07-125 (La. App. 5 Cir. 10/30/07), 971 So.2d 1173, 1178, writ denied , 07-2287 (La. 4/25/08), 978 So.2d 364. A defendant's right to counsel of his choice cannot be manipulated to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Id. ; Reeves , 11 So.3d at 1056. An indigent defendant's right to choose his defense counsel, however, only allows the defendant to retain the attorney of choice if the defendant can manage to do so. Reeves , 11 So.3d at 1057.

It is further well-established that a defendant in a criminal trial cannot, by a last minute change of counsel, force a postponement. State v. Williams , 00-1850 (La. App. 5 Cir. 4/11/01), 786 So.2d 785, 790-91, writ denied , 01-1432 (La. 4/12/02), 812 So.2d 666. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Leggett , supra .

Moreover, a motion for a new trial is based on the supposition that injustice has been done to the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La. C.Cr.P. art. 851. The trial court's ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Delagardelle , 06-898 (La. App. 5 Cir. 4/11/07), 957 So.2d 825, 829, writ denied , 07-1067 (La. 11/21/07), 967 So.2d 1154.

Considering the facts and circumstances of this matter, we find that the trial court did not abuse its discretion in denying Defendant's motion for new trial alleging he was denied counsel of his choice. The record reflects that no defense counsel moved for a continuance on the day of trial, as a continuance was not specifically sought either at the May 1, 2017 hearing or in the proceeding weeks leading up to trial. Two weeks prior to the scheduled trial date, Mr. Regan, who was not the attorney of record, only indicated that he might enroll, but had conflicting matters on the scheduled date of trial that he indicated he may have been able to reschedule. The record reflects that Mr. Regan did not file a motion to enroll in this case nor did he file a motion to continue. Defendant's argument presumes that Mr. Regan would have enrolled in the case but for the granting of the continuance; however, the record does not indicate why Mr. Regan did not ultimately enroll in this case. The record further reflects that Mr. Benz, who was the attorney of record, did not file a motion to continue or a motion to withdraw. (See State v. Nickles , 46,189 (La. App. 2 Cir. 4/13/11), 60 So.3d 728, writ denied , 11-090 (La. 11/18/11), 75 So.3d 450, where the defendant did not make a contemporaneous objection to the trial court's action in commencing the trial. The appellate court noted that even if he had, the trial court did not err in going forward with the trial instead of granting a continuance to allow the defendant to have retaining counsel appear in court. The record indicated that the defendant raised the issue of retained counsel on the day of trial and made no showing that counsel had in fact been retained. The appellate court found that the defendant had ample opportunity to retain counsel prior to commencement of the trial, and that court-appointed counsel had prepared a defense for the defendant).

Further, while Defendant argues he was denied the right to proceed to trial with counsel of his choosing, he does not indicate how the denial prejudiced him. Mr. Benz, Defendant's attorney for most of the criminal proceedings, represented him at trial, and there is no assertion that Mr. Benz was unprepared for trial. Based on the forgoing, we find that the trial court did not abuse its discretion in denying Defendant's motion for new trial.

Errors Patent Discussion

The record was reviewed 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). No errors that require corrective action were found.

DECREE

For the foregoing reasons, Defendant's convictions and sentences are affirmed.

AFFIRMED

      Co-defendant Ernest L. Payne, Jr. has appealed his convictions and sentences under companion case number 17-KA-553.

      The victims were Delanta McCall and Martin Henry.

      The indictment was amended on April 11, 2013, to add Ernest L. Payne Jr. to the second degree murder charge in count two.

      Co-defendant Payne was found guilty of the responsive verdicts of manslaughter on each of the two counts.

      Defendant's assignments of error are interrelated and will be address in one analysis.

      La. C.Cr.P. art. 707 provides:
      A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
      Nevertheless, there is a jurisprudential exception to the requirement for a written motion where the circumstances producing the motion occur unexpectedly and there is no opportunity to prepare the motion. (See State v. Bartley , 03-1382 (La. App. 5 Cir. 3/30/04), 871 So.2d 563, 567, writ denied , 04-1055 (La. 10/1/04), 883 So.2d 1006, citing State v. Winfrey , 97-427 (La. App. 5 Cir. 10/28/97), 703 So.2d 63, 68, writ denied , 98-264 (La. 6/19/98), 719 So.2d 481 (holding that the defendant had not preserved the denial of his oral motion for continuance because no unexpected circumstances arose to prevent the filing of the written motion); see also State v. Shannon , 10-580 (La. App. 5 Cir. 2/15/11), 61 So.3d 706, writ denied , 11-0559 (La. 9/30/11), 71 So.3d 283 (where this Court also held that the defendant should have filed a written motion to continue, but nevertheless reviewed the merits of the defendant's claim.) )

      See also Uniform Rules, Court of Appeal, Rule 1-3, which provides in pertinent part that "[t]he Courts of Appeal will review only issues which were submitted to the trial court[.]"

      Insofar as the trial court's inclination to not grant a continuance could be construed as a denial of Defendant's motion to continue, according to La. C.Cr.P. art. 712, "[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor." The Louisiana Supreme Court has consistently held that the decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Davenport , 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 447, writ denied , 09-0158 (La. 10/16/09), 19 So.3d 473 (citing State v. Manning , 03-1982 (La. 10/19/04), 885 So.2d 1044, 1077, cert. denied , 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005) ). In addition, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. Id. , 2 So.3d at 447. This Court has also recognized that the denial of a motion for a continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice. Id. (citing State v. Bartley , 871 So.2d at 567 ).

      La. C.Cr.P. art. 851 provides:
      A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
      (1) The verdict is contrary to the law and the evidence.
      (2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.
      (6) The defendant is a victim of human trafficking or trafficking of children for sexual purposes and the acts for which the defendant was convicted were committed by the defendant as a direct result of being a victim of the trafficking activity.