author: ROLAND L. BELSOME, Judge.

text:
    Nancy MARSHALL, Assessor for the Sixth Municipal District for the Parish of Orleans v. Benjamin H. MAYNARD, Warren P. Valentino, Query Lance, Rutledge C. Clement, Jr., Douglas Brent Wood, Sherry B. Haydel, Amelia L. Flynn, Peter S. Michell, Aaron L. Jarabica, Frank A. Mumphrey, III, Bryan W. Fitzpatrick, Glenda D. Lavis, Paul S. Rosenblum, Dominic J. Gianna, Susan D. Krohn, Gothard J. Reck, Frederick O. Martty, Katherine F. Salvant, Kathryn A. Sturm, Jairo I. Santanilla, Patrick A. Talley, Jr., A.R. Fransen, Jr., John H. Lewis, William M. Pinsky, et al.
    No. 2009-CA-1132.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Stephen H. Kupperman, Jonathan R. Bourg, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Gothard J. Reck, Uhalt & Reck, New Orleans, LA, in Proper Person, Defendant/Appellee.
    A. Remy Fransen, Jr., Fransen <& Hardin, A.P.L.C., New Orleans, LA, in Proper Person, Defendant/Appellee.
    David W. Oestreicher II, New Orleans, LA, in Proper Person and for Benjamin Maynard and B. Gathright.
    Patrick A. Talley, Jr., Frilot L.L.C., New Orleans, LA, in Proper Person, Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Appellant, Nancy Marshall, appeals the trial court’s grant of Appellee’s exception of prescription. We find that Appellant’s claim was prescribed pursuant to La. R.S. 47:1998 and affirm.

FACTS AND PROCEDURAL HISTORY

Appellant, Nancy Marshall, the Assessor for the Sixth Municipal District for the Parish of Orleans, assessed the value of various properties owned by Defendants-Appellees in 2008, the results of which were available for public inspection for fifteen days thereafter. Appellees timely sought review of Appellant’s assessments for the 2008 tax year with the Orleans Parish Board of Review, which unanimously found in favor of Appellees and determined that the 2008 assessments should be modified.

Appellant Marshall subsequently made a timely appeal to the Orleans Parish Board of Review’s decision to the Louisiana Tax Commission (“LTC”), who utilized an independent certified property appraiser. After a hearing on February 26, 2008, the LTC made its own determinations on June 10, 2008 for the fair market value of the properties. On June 10, 2008, the LTC found that Appellant Marshall’s assessments required modification and upheld the calculations of the |2Orleans Parish Board of Review. The June 10, 2008 decision of the LTC stated: “This order shall be effective upon the date of issuance.” Appellant Marshall did not seek a rehearing of this determination.

Instead, Appellant appealed the LTC’s decision by filing suit on September 8, 2008, naming property owner Appellees as Defendants. In response, Appellees filed, inter alia, exceptions of prescription, arguing that the appeal was prescribed pursuant to La. R.S. 47:1998, as Appellant had thirty days from June 10, 2008 to appeal the LTC’s Order. After a hearing on May 15, 2009, the trial granted the exception of prescription on May 21, 2009, deeming the other exceptions moot. This appeal followed.

STANDARD OF REVIEW

A trial court’s ruling on an exception of prescription is reviewed under the manifest error/clearly wrong standard. Davis v. Hibernia National Bank, 98-1164, p. 2 (La.App. 4 Cir. 2/24/99), 732 So.2d 61, 63. The manifest error inquiry is not whether the trial court was right or wrong, but whether its determinations were reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 149. If the trial court commits an error of law, however, the applicable standard of review is de novo. Edwards v. Pierre, 08-0177 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 656.

DISCUSSION

Appellant assigns two errors for our review: first, that the trial court erred in finding that the time period for appealing the Louisiana Tax Commission’s decision was within thirty days of the date of the order, pursuant to La. R.S. 47:1998, rather than thirty days from the date she received the decision in the mail, Las provided by La. Admin. Code tit. 61 § 3103(U); and second, that the trial court erred in failing to apply the Louisiana Administrative Code.

With regard to the proper procedure for appealing final determinations of the Louisiana Tax Commission, La. R.S. 47:1998 provides, in pertinent part:

Any taxpayer or bona fide representative of an affected tax-recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment.

La. R.S. 47:1998(A)(l)(a)(emphasis added). Thus, Appellant argues that although the order was issued on June 10, 2008, and suit was not filed until September 8, 2008, it was nevertheless timely because it was filed within thirty days of August 8, 2008, relying upon La. Admin. Code tit. 61 § 3103(U). August 8, 2008 is the date that Appellant alleges correspondence regarding the LTC’s June 10, 2008 Order was received.

Appellant’s argument that the Administrative Code takes precedence over the Louisiana Revised Statutes must fail, as the Louisiana Supreme Court has held that “an administrative construction cannot be given effect where it is contrary •to or inconsistent with legislative intent.” Jurisich v. Jenkins, 1999-0076, p. 8 (La.10/19/99), 749 So.2d 597, 602. Likewise, “[a]n administrative construction cannot have weight where it is contrary to or inconsistent with the statute.” Jurisich v. Jenkins, 1999-0076, p. 8, 749 So.2d at 602 (quoting Traigle v. PPG Indus., Inc., 332 So.2d 777, 782 (La.1976)). Specifically, “the tax commission cannot adopt rules in contravention of state statutes.” EOP New Orleans, L.L.C. v. Louisiana Tax Commission, 2001-1452, p. 8 (La.App. 1 Cir. 9/28/01), 809 So.2d 387, 392.

In this case, it is not asserted, nor did the trial court find, that either the language of La. R.S. 47:1998 or the wording of the LTC’s Order was ambiguous or unclear; accordingly, no further interpretation is required. See ABL Management v. Board of Supervisors, 2000-0798, p. 5-7 (La.11/28/00), 773 So.2d 131, 135. If the Legislature had intended to incorporate a certified mail receipt requirement into the statute, the Legislature could have simply inserted it in one of the numerous amendments to La. R.S. 47:1998; yet, such a provision is notably absent from the language pertaining to the time delay for an appeal. Pursuant to the plain wording of La. R.S. 47:1998 and the Order itself, the June 10, 2008 Order became effective on that date. Appellant failed to appeal or seek a rehearing of that order within thirty days pursuant to La. R.S. 47:1998; thus, it became final on July 10, 2008, nearly two months before Appellant filed suit.

Nevertheless, Appellant also makes the argument that, without one superseding the other, when read together, La. R.S. 47:1998 and La. Admin. Code tit. 61 § 3103(U) combine to allow for thirty-days from receipt of correspondence | ^regarding the LTC’s Order, because La. R.S. 47:1998 does not specifically define “entry” or “final decision.” This argument, however, must also fail. “Entry has been defined as a ministerial act of recording a statement of a final decision reached by a court or a quasi-court in the matter before it.” Johnson v. Louisiana Tax Commission, 2001-1445, p. 5 (La.App. 4 Cir. 1/16/02), 807 So.2d 356, 359, n. 1 (citing EOP New Orleans, L.L.C. v. Louisiana Tax Commission, 2001-1452, p. 9 (La.App. 1 Cir. 9/28/01), 809 So.2d 387, 392). “[W]hen a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written.” ABL Management v. Board of Supervisors, 2000-0798, p. 6, 773 So.2d at 135. “It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used.” Id. Accordingly, because La. R.S. 47:1998, which makes no reference to receipt of the Order by mail, is controlling under these facts and circumstances, the LTC’s final decision was plainly “entered” on June 10, 2008.

Appellant’s arguments also fail pursuant to this Court’s decision in Johnson v. Louisiana Tax Commission, which held that date an LTC decision is signed begins the running of the 30-day appeal period. Johnson v. Louisiana Tax Commission, 2001-1445, p. 5, 807 So.2d at 359. In Johnson, this Court affirmed a taxpayer’s exception of prescription pursuant to La. R.S. 47:1998 because the Assessor’s petition was not filed within thirty days of signing, or entry, of the LTC’s final decision. Id.

|fiThe LTC decision at issue in Johnson was signed on June 6, 2000; therefore, this Court specifically held that “pursuant to La. R.S. 47:1998(A)(1)(a), the time for applying for judicial review in this matter began to run on June 6, 2000,” and “[t]he Assessor had thirty days from that date to file a petition for judicial review of the tax commission’s decision absent a timely request for a rehearing.” Id. (emphasis added). The Assessor in Johnson, like Appellant in this case, did not file a request for a rehearing. See id. Implicit in this Court’s determination that the time for applying for judicial review begins to run on the date the LTC decision is signed is the finding that an LTC’s decision is “entered” on that date. See id. Therefore, Johnson is directly applicable to the facts of the instant case.

Appellant’s reliance on EOP New Orleans L.L.C. v. Louisiana Tax Commission is misplaced. EOP considered whether the Appellant’s petition for judicial review was premature because it was filed prior to the expiration of the ten-day period allowed for a rehearing. EOP New Orleans L.L.C. v. Louisiana Tax Commission, 2001-1452, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 387, 389. While EOP found that La. Admin. Code tit. 61:3103 did not conflict with La. R.S. 47:1998 or 49:964 for the specific purpose of determining whether Appellant’s petition was premature, EOP did not stand for the broad general proposition that La. R.S. 47:1998 and La. Admin. Code tit. 61:3103 are compatible in all respects. See id.

Therefore, pursuant to the plain language of La. R.S. 47:1998 and Johnson v. Louisiana Tax Commission, 2001-1445, p. 5, 807 So.2d at 359, Appellant’s claim Ivprescribed on July 10, 2008. The trial court properly granted Appellees’ exceptions of prescription.

CONCLUSION

For the foregoing reasons, we find that the trial court did not err in applying La. R.S. 47:1998. The trial court’s judgment is hereby affirmed.

AFFIRMED.

      . See also La. R.S. 47:1989(D)(1)(providing that "[a]ll decisions by the tax commission are final unless appealed to the district court within thirty days”).

      . Title 61 provides, in pertinent part:
      The parties to an appeal shall be notified in writing, by certified mail, of the final decision by the commission. The taxpayer or assessor shall have 30 days from receipt of the Order to appeal to a court of competent jurisdiction.

      . Amended by Acts 1980, No. 601, § 1, eff. July 23, 1980; Acts 1982, No. 609, § 1; Acts 1986, No. 540, § 1; Acts 1988, No. 588, § 1, eff. July 14, 1988; Acts 1988, No. 719, § 1; Acts 1995, No. 53, § 1, eff. July 1, 1995; Acts 1995, No. 272, § 1, eff. July 1, 1995; Acts 2000, 1st Ex.Sess., No. 74, § 1, eff. April 17, 2000; Acts 2001, No. 1149, § 1; Acts 2004, No. 461, § 3, eff. July 1, 2006; Acts 2006, No. 390, § 1; Acts 2009, No. 511, § 1. Additionally, prior to the April 17, 2000 amendment, the statute had previously provided simply for the right to bring suit within thirty days of the decision of the tax commission. See EOP New Orleans, L.L.C. v. Louisiana Tax Commission, 2001-1452, p. 6 (La.App. 1 Cir. 9/28/01), 809 So.2d 387, 390, n. 3.

      . As part of the opposition to Appellees' exceptions, Appellant attached an affidavit from the Chief Deputy Assessor for the Sixth Taxing District which stated that the August 7, 2008 correspondence enclosed LTC orders from July 9, 2008, regarding three properties, as well as June 10, 2008. This is of no moment, however, as all parties to this appeal retain addresses listed on the affidavit as part of the LTC's June 10, 2008 Orders.

      . Notably, Appellant did not cite to the Administrative Code in the petition and appeal from the Louisiana Tax Commission, and raised no other procedural basis for the lawsuit other than La. R.S. 47:1998 and La. R.S. 47:2321.

      . Entry is defined by Black's Law Dictionary as "[t]he placement of something before the court or on the record.” Black’s Law Dictionary 554 (7th ed. 1999).

      . Appellant also references Hurricane Gustav, which struck Louisiana on or about September 1, 2008 and resulted in several court closures, in support of the argument that prescription had not accrued. Appellant’s cause of action had prescribed, however, prior to September 1, 2008.


source: Caselaw Access Project

author: JAMES F. McKAY, III, Judge.

license: Public Domain

text:
    Jessica RICHARDSON v. Sonia WOODRUFF and St. Bernard Parish School Board.
    No. 2009-CA-1089.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.
    Steven B. Badeaux New Orleans, LA, for Plaintiff/Appellant.
    Alvin J. Bordelon, Jr., Andrew C. Abrams, Bordelon & Theriot, Lawyers Metairie, LA, for Defendants/Appellees.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY, III, Judge.

hOn January 4, 2007, a minor traffic accident occurred involving a 1996 Ford Mustang driven by the plaintiff, Jessica Richardson, and a St. Bernard Parish School bus driven by the defendant, Sonia Woodruff. Ms. Richardson contends that her vehicle was struck from the rear by the school bus travelling approximately 10 m.p.h. Ms. Woodruff contends that she merely struck the plaintiffs side view mirror while making a right turn. Ms. Wood-ruffs version of the accident was corroborated both by photographs taken by Kathy Gonzales, a transportation supervisor with the school district, and the accident report prepared by Cpl. Joseph Moore of the St. Bernard Parish Sheriffs Department. The damages to Ms. Richardson’s side view mirror amounted to $116.75.

Ms. Richardson filed suit against Ms. Woodruff and the St. Bernard parish School Board alleging that she was injured as a result of the accident. After trial, the district court found that the plaintiff failed to prove her case and rendered judgment in favor of the defendants, dismissing the plaintiffs claims. It is from this judgment that Ms. Richardson now appeals.

|2On appeal, the plaintiff raises the following assignments of error: 1) because the parties had stipulated that contact had occurred between the vehicles, it was manifestly erroneous for the trial court to conclude otherwise; 2) the trial court erroneously interpreted or applied the law in disregarding the fact that the parties stipulated that contact had occurred between the two vehicles.

However, the only issue truly before this Court is whether the trial court properly interpreted and weighed the evidence before it when it dismissed the plaintiffs claim.

A trial court’s credibility determinations are entitled to great weight. The trier of fact is the individual who sees and hears the witnesses first hand. Accordingly, the standard on appeal is not whether the reviewing court considers the trial court’s decision right or wrong, but whether the trial court’s conclusions are reasonable in light of the record. If the trial court’s findings are reasonable in light of the record viewed in its entirety, those conclusions may not be disturbed. Lasyone v. Kansas City Southern R.R., 2000-2628 (La.4/3/01), 786 So.2d 682; Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993).

In the instant case, the trial court had to decide who it believed. In addition to witness testimony, there was photographic evidence which corroborated the school district’s ease. These photographs showed that the accident could not have occurred as Ms. Richardson claimed. Clearly, there was evidence in the record to support the reasonability of the trial court factual findings in this case.

|sFor the above and foregoing reasons, we affirm the trial court dismissal of the plaintiffs claim.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Brad L. ROBIN, Dale Harry Borden, Harry Dale Borden, Pero Cibilic, Clear Water Oysters, Inc., Joseph B. Collins, Anthony E. Esteves, Jr., Anthony E. Esteves, III, Carol A. Gonzales, Joseph R. Gonzales, Joseph A. Gonzales, Selina M. Gonzales, Wayne A. Gray, et al. v. STATE of Louisiana Through the DEPARTMENT OF NATURAL RESOURCES, Charles C. Foti, Jr., Attorney General, Governor Kathleen Babineaux Blanco.
    No. 2009-CA-1383.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.
    F. Gerald Maples, Carlos A. Zelaya II, Machelle R. Lee Hall F. Gerald Maples, P.A., New Orleans, LA, Wayne B. Mum-phrey, J. Wayne Mumphrey, Mumphrey Law Firm L.L.C., Slidell, LA, Clayton M. Connors, Mumphrey Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Andrew C. Wilson, Daniel J. Caruso, Susan F. Clade, Simon Peragine Smith & Redfearn, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| plaintiffs, Brad. L. Robin et al, bring forth a devolutive appeal asking this Court to review the trial court’s decision to grant the Exception of Improper Venue filed by defendants, the State of Louisiana, through its Department of Natural Resources, Office of the Attorney General, and Office of the Governor. For the reasons provided below, plaintiffs’ appeal is dismissed.

Plaintiffs aver that the trial court erred in determining that the proper venue for this matter is the Nineteenth Judicial District for the Parish of East Baton Rouge. The Notice of Signing of Judgment granting defendants’ Exception of Improper Venue was issued on June 16, 2009. The trial court ordered plaintiffs to file an application for supervisory writ by July 10, 2009. Plaintiffs timely filed an application with this Court on July 10, 2009.

On July 28, 2009, this Court declined to consider plaintiffs’ application, as it “fail[ed] to comply with Rule 4-5(h) of the Uniform Rules, Courts of Appeal. Rule 2-12.13, Uniform Rules, Courts of Appeal.” Plaintiffs thereafter filed a Petition for Appeal with the trial court on August 14, 2009. The deadline for filing a suspensive appeal had passed, and plaintiffs therefore expressed a “desire to appeal devolutively”

A granting of an exception of improper venue is a non-appealable, interlocutory ruling. Schexnayder v. Gash, 07-771, p. 3-4 (La.App. 5 Cir. 2/19/08), 980 So.2d 65, 66-67. La.Code Civ. Proc. art. 2083 states that an interlocutory judgment is appeal-able only when expressly provided by law. This precludes an appeal from a ruling on an exception of improper venue because there is no statute expressly permitting an appeal from such a ruling. Schexnayder, 980 So.2d at 67.

liWhat plaintiffs present before this Court is a non-appealable interlocutory judgment. It has not been rendered a final judgment or partial final judgment. La.Code Civ. Proc. arts. 1911, 1915(B). The correct course of action for appellate review was to file an application for supervisory writ. This Court ruled that plaintiffs’ application was deficient. This Court declines to convert plaintiffs’ appeal of an interlocutory judgment into another application for supervisory writ. Therefore, plaintiffs’ appeal is dismissed.

APPEAL DISMISSED.


author: MAX N. TOBIAS, JR., Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Troy BARBOUR.
    No. 2009-KA-1258.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

1 ]The defendant, Troy Barbour, was charged by bill of information on 15 June 2006 with attempted second degree murder. He pleaded not guilty at his 14 August 2006 arraignment. The trial court granted Mr. Barbour’s motion to suppress the identification in part, and denied it in part, and subsequently denied his motion to suppress his statement. He was tried by a twelve-person jury on 16-17 June 2008 and found guilty as charged. On 27 June 2008 the state filed a bill of information charging Mr. Barbour as a fourth-felony habitual offender.

On 1 April 2009 the trial court denied defendant’s post-verdict motion to declare La.C.Cr.P. art. 782 A unconstitutional to the extent it allows for a non-unanimous guilty verdict in a non-capital felony cases. On that date the trial court also denied Mr. Barbour’s motion for post-verdict judgment of acquittal and motion for new trial. He waived all legal delays and was sentenced to forty-eight years and six months at hard labor, without benefit of parole, probation, or suspension of sentence and granted his motion for appeal.

FACTS

Mr. Barbour was convicted of the 8 January 2008 attempted second degree murder of Donald Baker (“Baker”).

Baker confirmed at trial that Mr. Barbour shot him several times on the evening of 8 January 2006. He knew Mr. Barbour as Michael Lee. Baker used to do remodeling and construction work. He hired Mr. Barbour after Hurricane Katrina, after someone brought him to his attention. Mr. Barbour was living in a car and was not eating, to-wit, starving. Baker said he gave Mr. Barbour a place to live and hired him. The defendant eventually found another place to live. On one sheet rocking and paneling job at the residence of Yolanda Jones, Mr. Barbour took a swing at Baker with a hatchet; Baker fired him. Baker subsequently felt sorry for the defendant and rehired him. Mr. Barbour took a swing at Baker again with a hatchet, and Baker told him that was it, and fired him.

Subsequently, Baker was working in Ms. Jones’ residence cutting a wall outlet out of a piece of paneling with a jigsaw when something happened that caused him to think he had cut himself. He moved the piece of paneling to inspect where he had cut himself. He did not realize he had been shot until he stood up and looked to see Mr. Barbour shoot him the second time in the hip. Baker said he flipped off the defendant, and Mr. Barbour shot him a third time, in the armpit, breaking his shoulder blade in seven places. The defendant shot Baker a fourth time, in the left arm, and a fifth and final time, in his shoulder blade. He said Mr. Barbour pulled the trigger again, but the snub-nosed revolver was empty. Baker said the gist of what the defendant was saying to him as he shot him was that he was going to kill him. Baker said he moved to a different room and picked up a razor knife. When Mr. Barbour saw this he grabbed Baker’s cell phone and left, |3telling Baker that he was going to bleed to death. The residence phone apparently had been reconnected, and Baker was able to call 911 for help. Baker told a police officer at the hospital that “Michael Lee” had shot him. On 9 January 2006, Baker was shown a photo of the defendant and confirmed that it was the person who shot him.

Baker confirmed on direct and cross examination that he was aware that while at the hospital his urine tested positive for cocaine. He said he had used cocaine a week and a half to two weeks prior to being shot. He replied in the negative when asked on direct examination whether he had taken or drank anything that would have caused him to not realize what was happening. Baker admitted on cross examination that he previously had been convicted of a crime, destruction of state property, for which he served a sentence of imprisonment. Baker denied on cross examination that he had ever threatened the defendant with a gun. Baker admitted threatening an unknown individual who had broken the windows in the vehicle he was driving. He admitted that after he fired Mr. Barbour he told him that he would mess him up if he ever got in sight of him. Baker said he delayed telling police who shot him until he got to the hospital because he was worried that the defendant might come back and shoot him again.

Robert Shafor, M.D., was a general surgeon on call at Slidell Hospital on 8 January 2006. He treated the Baker’s gunshot wounds. The victim’s wounds were around his shoulders, upper thighs, and the groin. His internal organs and blood vessels were fine, although one wound from a bullet that entered his upper thigh and exited around his scrotum gave him concern because it was fairly close to major blood vessels. Dr. Shafor confirmed that a hospital toxicology test for the presence of narcotics in Baker was positive for cocaine.

14Yolanda Jones-Taylor (“Jones-Taylor”) testified that after Hurricane Katrina she hired Donald Baker to put a new roof on her home and do some sheetrock work. Baker brought in the defendant to help him with the work. Jones-Taylor identified Mr. Barbour in court. She stated she never saw the victim intoxicated, but acknowledged Mr. Barbour called her to complain that the victim was not paying him. She eventually helped Mr. Barbour get a job sheet rocking with her son the week before the shooting. On the day of the shooting, a Sunday, Jones-Taylor brought the defendant some papers giving him permission to be on the property where her son was working. She picked up Mr. Barbour and dropped him off. Jones-Taylor went home. Baker was there working. The defendant called Jones-Taylor and told her he had forgotten the papers in her car. Jones-Taylor arranged to meet the defendant at a grocery store on Franklin Avenue and Leon C. Simon Boulevard. She left her home and went there, but never found the defendant. When she returned to her home, she found police there. Baker had been shot. She did not see Mr. Barbour after-wards, and did not hear from him until the next day, when he telephoned her to tell her he had shot Baker and that Baker was probably dead.

Jones-Taylor stated on cross examination that she did not tell Baker she was going to meet the defendant on the day of the shooting because she did not want him to know she was going to meet him. She confirmed that she knew of the feud between the two men and did not want to cause any more problems. Jones-Taylor also stated that she remembered when someone broke the windows on Baker’s car, that Baker thought the defendant had done it, and that Baker was angry and upset about it. Baker told her he had a gun that he kept for his protection. She told Baker she did not want any guns in her home.

| r,Alice Barthe (“Barthe”) testified that her stepdaughter, Katy, and the defendant stayed with her and her husband in their Tylertown, Mississippi home, and later in a camper on their property from November 2005 until January 2006. A snub-nosed revolver she purchased around the first of January 2006, just after Christmas, was stolen from her home approximately four days after she bought it. It was stolen late Saturday night or early Sunday morning. Barthe said Mr. Barbour and his friend, Jamie, were in the residence that Saturday when she, her stepdaughter, and her husband went to an auction approximately an hour and a half drive away. When they returned Mr. Barbour and Jamie were gone, a Cadillac automobile was gone, and the revolver was missing from her nightstand. Barthe identified the defendant in court, as well as her revolver.

Ellis Barthe, Alice’s husband, testified similarly to his wife. He said they did not get back from the auction until past midnight Sunday.

Susan Barthe, the mother of Katy Barthe, testified that Mr. Barbour and Baker did work on her home, and that the defendant dated her daughter. She identified some recordings made of telephone messages left for Katy on her telephone by Jones-Taylor and the defendant after Baker was shot.

Former New Orleans Police Department Detective Jeffrey Lehrmann testified that he responded to the scene of the shooting on 8 January 2006. The victim was in pain and not very cooperative. A spent bullet was recovered near where the victim was lying on the floor. Jones-Taylor drove up while he was there, and he took a statement from her. At the hospital, Baker told him who had shot him. Detective Lehrmann determined that Michael Lee and Mr. Barbour were the same person. Baker identified a photograph of the defendant. Mr. Barbour was eventually arrested. Mr. Barbour admitted to Detective Lehrmann that he used |fithe name of Michael Lee. During his investigation Detective Lehrmann recovered the revolver stolen from the home of Alice and Ellis Barthe.

Charles Collins, a case manager for a drug court at Orleans Parish Criminal District Court, testified on behalf of Mr. Barbour that cocaine normally stays in a chronic user’s system for three to four days and in a recreational user’s system for three days.

New Orleans Police Department Sergeant Leonard Davis wrote a police report on the shooting. He testified that Baker told him that an unidentified white male came inside the residence where he was working, and stated: “Give me the money punk,” then produced a handgun and shot him. Sergeant Davis admitted on cross examination that Baker’s demeanor was fearful, among other things, and that he was in great pain. Asked whether his ability to interview the victim might have been hampered by his condition, Sergeant Davis replied: “Very much so.”

Mr. Barbour testified that he was from Michigan. He mostly did construction work. He had been convicted of safe tampering, twice convicted of breaking and entering, for being a prisoner in possession of a weapon, and for issuing checks with insufficient funds. He was on parole from Michigan, and admitted that he had violated his parole by leaving Michigan without permission. He said that he had to get a job to remain on parole, but could not find one. He asked for permission from his parole officer to travel to New Orleans to find work, but permission was denied. He thought his parole would be revoked anyway if he stayed, because the cutoff period for him to find a job was approaching; thus he left. Mr. Barbour stated that he had never been convicted of a crime of violence. He arrived in New Orleans in September 2005, after Hurricane Katrina had struck. |7He used an alias, the name of a friend, because he was on the run for a parole violation.

Mr. Barbour said he met and worked with Baker in the area after Hurricane Katrina, and that they made pretty good money, which they split fifty-fifty at the beginning. He said that after working with Baker for about one week he discovered that Baker smoked crack cocaine. He said when Baker received money for work he performed, he would go to a crack house and be gone for a day, sometimes three days. He said when Baker used crack cocaine his eyes would get real wide and he would get aggressive and violent.

Mr. Barbour said Baker had a gun and he had seen it more than once. He said Baker was always shortchanging him and stealing the tools. Disputes over money and ownership of tools occurred. Baker threatened him all the time and had threatened him with a weapon. Baker once said that if he ever saw him again, he would shoot him. Mr. Barbour said that after the trouble between them, he had to leave Louisiana and move to Mississippi. He said that after the split with Baker, he got a friend from Michigan, Jamie Stone, to come to New Orleans and work with him on the job for Jones-Taylor’s son.

Mr. Barbour stated that on the day of the shooting, Baker telephoned him to say that if he wanted his money he could come to Jones-Taylor’s home to pick it up. He asserted that Baker owed him $3,200.00 for work he had done on Jones-Taylor’s home. The defendant told Baker he would be over in a minute. He said that at first he was excited, but on the way there he thought about things and began to feel uneasy. He questioned why Baker now wanted to give him money, especially after everything that had happened. He said he approached Jones-Taylor’s home with caution. He admitted that he had a gun, one he had taken | ¡¡without permission from Ellis Barthe in Mississippi. He said the gun previously introduced in evidence by the state looked like the one he took from Ellis Barthe. Mr. Barbour said he took the gun because Baker had made a lot of threats on his life and those of his loved ones around him.

Mr. Barbour said Jones-Taylor was not there when he went to her home. Baker answered the door, turned around, and started walking into the house. Baker accused the defendant of screwing him out of job, whereupon Mr. Barbour retorted that Baker had screwed himself. He asked Baker if he was going to pay him. Baker replied that he was. The defendant said Baker then reached behind a box and pulled out a .44 Magnum revolver with a six-inch barrel. Mr. Barbour claimed Baker reached around to take a shot at him. Mr. Barbour said he grabbed a halogen light and shined it in Baker’s face. He said Baker fired a shot. The defendant then fired a number of shots at Baker, who dropped his gun. Mr. Barbour picked it up. He asked Baker if he was crazy and told him the money was not that important, that Baker could keep it. The defendant said Baker told him that it was not about the money. Mr. Barbour then ran out of the house. He discarded the gun in a debris pile alongside the street. He said neither he nor Baker pulled out a knife. He denied taking Baker’s cell phone.

Mr. Barbour admitted hiding from police after the incident. When he was arrested, he did not tell Detective Lehrmann his story because he was not sure Baker would tell police he shot him, since Baker had tried to kill him. The defendant replied in the negative when asked whether, when he went to Jones-Taylor’s house that evening, he had any intention of shooting Baker. He said that he shot Baker in self-defense.

|9The defendant said on cross examination that when he shot Baker, Baker was under the influence of crack cocaine. He knew that because he smelled it when he entered the residence, and because Baker’s eyes were bulging and he was breathing hard. He denied ever having gone after Baker with a hatchet. After the shooting he jumped into the blue Cadillac in which his friend, Jamie, was sitting with engine running, and they left.

Jones-Taylor was recalled as a witness by the state. She testified that when the defendant telephoned her the day after the shooting he told her that he was sorry he had done it, but that at least he had gotten her out of the house. He told her he thought Baker was dead. She did not tell him that Baker was alive.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

In this first assignment of error, Mr. Barbour argues that the trial court erred in denying his motion for a mistrial based on the state eliciting testimony from the victim concerning other crimes committed by the defendant.

The issue arose when the state was questioning its first witness in its case in chief, the victim. The state was eliciting from the victim a description of the events that occurred at Jones-Taylor’s residence, where the defendant and the victim had been working, and where the shooting occurred. The state was directing questions to the victim concerning the defendant’s work with the victim, and the following colloquy occurred:

ImQ,. How long did the defendant actually do the sheetrock work with you inside that residence?
A. About a week, week and half, almost two.
Q. Did he help you finish it?
A. No.
Q. What happened?
A. He took a swing at me with a hatchet and I fired him. I felt sorry for him, brought him back. And he took another swing at me, and I told him that was it.
Q. And where did that second incident occur?
A. In the street in front of Yolanda’s house.

At that point defense counsel objected. The jury was removed from the courtroom and Mr. Barbour’s counsel moved for a mistrial, which the trial court denied. The trial court strongly admonished the state, and when the jury returned the court admonished it that it was to disregard the testimony as if it never occurred.

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

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.

The Supreme Court set forth the applicable law in State v. Rose, 06-0402, pp. 12-13 (La.2/22/07), 949 So.2d 1236, 1243-1244, as follows:

| nIt is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1); State v. Williams, 96-1023, p. 30 (La.1/21/98), 708 So.2d 703, 725; State v. Prieur, 277 So.2d 126, 128 (La.1973). Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” Prieur, 277 So.2d at 128. However, the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). The State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Prieur, 277 So.2d at 130. Even when the other crimes evidence is offered for a purpose allowed under art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 263 (La.1979); Prieur, 277 So.2d at 130. The State also bears the burden of proving that defendant committed the other crimes, wrongs or acts. State v. Galliano, 2002-2849, p. 2, (La.1/10/03), 839 So.2d 932, 933 (per curiam).
Although a defendant’s prior bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of pri- or misconduct only when it is unduly and unfairly prejudicial. Id. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997)(“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”). (Footnote omitted).

In addition to the notice requirement imposed upon the state by La. C.E. art. 404(B)(1), La.C.Cr.P. art. 720 states that, upon motion of the defendant, the court 112shall order the district attorney to provide the defendant with the state’s intent to offer evidence of the commission of any other crime admissible under the authority of La. C.E. art. 404. The defendant’s trial counsel filed a boilerplate pleading seeking an order from the court directing the state to comply with, inter alia, La.C.Cr.P. art. 720.

The state does not dispute that it did not give notice of its intent to use any evidence of any other crime committed by the defendant. Neither does the state argue that evidence that the defendant had swung at the victim with a hatchet on two occasions prior to the day he shot the victim five times was admissible under La. C.E. art. 404 or any other authority.

The state argues instead that, even assuming it failed to give notice and the evidence was inadmissible, the trial court did not clearly abuse its discretion in denying the motion for mistrial and/or that the error in admitting the evidence was harmless.

La.C.Cr.P. art. 775 states that upon motion by a defendant a mistrial “shall be ordered” when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by La.C.Cr.P. art. 770 (mandatory mistrial upon motion of the defendant when prejudicial comment made within hearing of the jury by the judge, district attorney, or a court official referring to, inter alia, another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible) or La.C.Cr.P. art. 771 (the trial court may grant a mistrial upon motion of the defendant if the court is satisfied that an admonition is not sufficient to assure the defendant of a fair trial when a remark or comment made within the hearing of the | isjury during trial or in argument is of such a nature that it might create prejudice against the defendant in the mind of jury).

Mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice to the defendant. State v. Leonard, 05-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. The mere possibility of prejudice is insufficient to warrant a mistrial. Id. Stated a slightly different way, “[mjistrial is a drastic remedy, and is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial.” State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183. “The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.” Id.

The victim was the first witness to testify in the trial. His single statement referring directly to the defendant having swung at him with a hatchet is contained in the victim’s trial testimony. In hindsight, considering the evidence that followed, we do not find that the trial court abused its discretion in implicitly finding that the statement by the victim did not cause substantial prejudice to the defendant such that he would not be able to receive a fair trial.

Moreover, the erroneous admission of other crimes evidence due to the state’s failure to give the defense proper notice, or for any other reason, is subject to the harmless error rule. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102; State v. Plaisance, 00-1858, p. 27 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1192. See also State v. Shaw, 07-1427, p. 25 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 412, writ denied, State ex rel. Shaw v. State, 08-1957 (La.5/15/09), 8 So.3d 574 (“The erroneous admission of other crimes evidence is subject to the harmless | i4error analysis.”). An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 06-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172.

Mr. Barbour admitted shooting the victim. While he claimed self-defense, his testimony contradicted that of the victim and that of Jones-Taylor, at whose residence the victim was working on the day he was shot. Jones-Taylor’s testimony indicated that she had been sympathetic to the defendant insofar as his employment plight and squabbles with the victim. She arranged for the defendant to work for her son doing sheetrock work. She testified that she and the defendant arranged to meet at a grocery store on the evening of the shooting so Jones-Taylor could give him some documents giving him lawful permission to be on the premises of the residence her son was working on in post-Hurricane Katrina New Orleans. Jones-Taylor left her residence to meet the defendant, but he was not at the location where they had agreed to meet. Jones-Taylor returned to her residence to find the victim shot. Mr. Barbour fled and continued to actively elude police, knowing he was wanted in connection with the shooting of the victim. The defendant telephoned Jones-Taylor the day following the shooting, telling her he was sorry he had done it, but that at least he had gotten her out of the house. He admitted to stealing and taking a revolver to Jones-Taylor’s residence for his meeting with the victim. Thus, testimony suggests that the shooting was planned by the defendant.

|1sWe note the existence of discrepancies in Baker’s testimony. He denied owning a gun, but Jones-Taylor said that he told her he did own a gun. The victim lied to police at the scene of the shooting about who had shot him, only divulging the defendant’s identity after he was taken to the hospital. The victim explained that he was afraid to name Mr. Barbour while in Jones-Taylor’s home because he feared the defendant could be nearby.

Nevertheless, assuming arguendo (that the testimony by the victim that the defendant had on two occasions prior to the day of the shooting swung at him with a hatchet was inadmissible), viewing all of the evidence, it can said beyond a reasonable doubt that the guilty verdict rendered in the instant case was surely unattributable to the testimony itself or any error relative to the testimony.

We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In the second of his two assignments of error, Mr. Barbour argues that the trial court erred in denying his motion to declare. La.C.Cr.P. art. 782 A unconstitutional to the extent that it allows for a non-unanimous verdict in non-capital felony cases.

La.C.Cr.P. art. 782 A states in pertinent part that “[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” The instant case was one in which punishment was necessarily confinement at hard labor. Mr. Barbour was tried by a twelve-person jury, ten of whom concurred to render the verdict of guilty as charged of attempted second degree murder.

| ifiThe defendant argued in his written motion that La.C.Cr.P. art. 782 A violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

In State Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, the trial court found that La.C.Cr.P. art. 782 A violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, relative to the number of jurors needed to concur to render a verdict in cases in which punishment is necessarily confinement at hard labor, the same issue raised by the defendant in the instant case. The Louisiana Supreme Court reversed, stating in its conclusion:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12[-] person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

Bertrand, 08-2215, p. 8, 6 So.3d at 743.

Bertrand is dispositive of defendant’s argument in this assignment of error which we find is meritless.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence is affirmed.

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

hi write separately to acknowledge that historically, a defendant could not be convicted unless the jury verdict was unanimous. Arie M. Rubenstein, Verdicts of Conscience: Nullification and the Modem Jury Trial, 106 Colum. L.Rev. 959, 979 (2006)(citing Apodaca v. Oregon, 406 U.S. 404, 407 & n. 2, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972)(White, J., plurality opinion); see also State v. Williams (unpub.), 2009-0602 (La.App. 4 Cir. 1/27/10, 26 So.3d 321)(Belsome, J., dissenting). The concept of a unanimous jury verdict began as early as the fourteenth century. Apodaca v. Oregon, 406 U.S. at 407-08, 92 S.Ct. 1628)(citing 1 William Holdsworth, A History of English Law 318 (1956), and James B. Thayer, The Jury and Its Development, 5 Harv. L.Rev. 249, 295, 296 (1892)); see also Johnson v. Louisiana, 406 U.S. 380, 383, 92 S.Ct. 1643, 1644, n. 1, 32 L.Ed.2d 170 (Douglas, J., dissenting). Ultimately, however, the United States Supreme Court concluded that the Constitution did not require unanimous jury verdicts. Rubenstein, Verdicts of Conscience, supra, at 979 (citing Apodaca v. Oregon, 406 U.S. at 410-411, 92 S.Ct. 1628).

With regard to Louisiana jurisprudence, this Court recently followed State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, in State v. Taylor, 2009-0041, p. 8 (La.App. 4 Cir. 9/4/09), 21 So.3d 421, 426, holding that “[t]his recent jurisprudence [referring to State v. Bertrand ] clarifies that La. C.Cr.P. art. 782(A)’s presumption of constitutionality remains intact.” Additionally, prior to the | ^Louisiana Supreme Court’s decision in State v. Bertrand, this Court found that a defendant’s argument that Article 782(A) was unconstitutional lacked merit, relying upon the First Circuit case of State v. Lee and noting the Louisiana Supreme Court’s denial of writs in that case. State v. Tillman, 2008-0408, p. 25 (La.App. 4 Cir. 3/4/09), 7 So.3d 65, 78 (citing State v. Lee, 2005-0456 (La.App. 1 Cir. 5/16/07), 964 So.2d 967, writ denied, State v. Lee, 2007-1288 (La.3/7/08) 977 So.2d 896, cert. denied, Lee v. Louisiana, — U.S. —, 129 S.Ct. 130, 172 L.Ed.2d 37 (2008)). In so holding, this Court quoted the following language from State v. Lee:

These Supreme Court decisions [Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] do not address the issue of the constitutionality of a non-unanimous jury verdict but rather, address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the sentencing judge. These decisions stand for the position that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and approved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Nothing in these decisions suggests that a jury’s verdict must be unanimous. Accordingly, LSA-Const. Art. I § 17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and do not violate the defendant’s Sixth Amendment right to a trial by jury.

State v. Tillman, 2008-0408, p. 25, 7 So.3d 65, 78 (quoting State v. Lee, 2005-0456, p. 4, 964 So.2d 967, 973 (emphasis added)). Therefore, until otherwise directed by the United States Supreme Court or the Louisiana Supreme Court, the trial court’s denial of defendant’s motion to declare La. C.Cr.P. art. 782(A) unconstitutional must be affirmed. I respectfully concur.

      . Flight is a circumstance from which guilt can be inferred. State v. Smith, 98-2645, p. 5 (La.App. 4 Cir. 1/26/00), 752 So.2d 314, 317-318; State v. Recasner, 98-2518, p. 3 (La.App. 4 Cir. 12/22/99), 750 So.2d 336, 338.


author: EDWIN A. LOMBARD, Judge. BONIN, J.,

text:
    Debra L. LEARD v. William F. SCHENKER, Jr.
    No. 2009-CA-1438.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Debra L. Leard, Baton Rouge, LA, In Proper Person, Plaintiff/Appellant.
    Robert C. Lowe, Marynell L. Piglia, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

| ¡This appeal in the ongoing custody dispute between the parents of the minor child, G.L., is from the June 5, 2009, judgment on the plaintiffs Rule to Modify Visitation. After review of the record and arguments of the parties in light of the applicable law, we affirm in part and reverse in part.

Relevant Facts and Procedural History

The child, G.L., was born on March 27, 1995, to the plaintiff, Debra Leard, and the defendant, William Schenker, Jr. The parents, who were not married, initially entered into a joint custody agreement in November 1995 but, subsequently, custody and visitation has been heavily litigated. See, e.g., Leard v. Schenker, 2008-1360 (La.7/11/08), 986 So.2d 66; Leard v. Schenker, 2008-1360 (La.7/11/08), 983 So.2d 1286; Leard v. Schenker, 2006-2589 (La.11/17/06), 942 So.2d 544; Leard v. Schenker, 2006-1075 (La.9/1/06), 936 So.2d 190; Leard v. Schenker, 2005-1125 (La.App. 4 Cir. 3/22/06), 930 So.2d 75, reversed in part, 2006-1116 (La.6/16/06), 931 So.2d 355.

In May 2002, after a seven day trial, the trial court issued a judgment granting sole custody to the defendant, temporarily suspending the plaintiffs visitation rights for a six week period to be followed by conditional supervised |2visitation. The May 2002 judgment provided that if the plaintiff remained in active mental health treatment for six consecutive months in compliance with a treatment plan, unsupervised visitation would be considered by the court. This judgment was not appealed. In August 2002, the trial court determined that it was in G.L.’s best interest to have supervised visits with his mother one hour per week. Custody and visitation issues continued to be heavily litigated by the parties, but the weekly one-hour mother-son visits remained the status quo until the instant litigation.

The plaintiff filed the motion to modify visitation underlying this appeal on July 12, 2006. On December 13, 2006, the trial court appointed Rafael Salcedo, Ph. D., to perform a mental health evaluation to determine whether the plaintiffs visitation with her child should be modified. On June 19, 2008, on motion of the defendant, the trial court ordered the plaintiff to undergo a further evaluation by Brian Jorn, Ph.D. The motion hearing finally came to trial in 2009 over a three day period, May 20, May 29, and June 1, 2009. The trial court rendered judgment on June 5, 2009, changing the plaintiffs visitation with her son from supervised to unsupervised but temporarily suspending all visitation for a six month period during which twice weekly telephone contact would be allowed twice although G.L. was not required to speak to his mother. In addition, the defendant and his wife were required to notify G.L. that his mother was on the phone and encourage him to speak to her.

Both parties appeal this judgment.

Applicable Law

In child custody cases, appellate courts will not disturb an award of custody absent a manifest abuse of discretion in the trial court. See Revision Comments-p.993s to La. Civ.Code art. 134, Comment (b). In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the Louisiana Supreme Court described the appellate review standard by stating that “upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.” Id. at 1196.

Plaintiff’s Pro Se Assignment of Errors

In her first assignment of error, the plaintiff asserts that the trial court erred in denying reasonable visitation to the noncustodial parent in accordance with the best interest of the child standard. She contends that because her fitness as a parent was established in 7 years of supervised visitation and the hearing testimony established that she was not psychologically unfit, it is unjustifiable to hmit her to telephone contact with her son. The plaintiff concedes that her child is alienated from her but argues, in essence, that forcing the child to have a relationship with her is in the child’s best interest. Under the circumstances of this case, we do not find that the trial judge abused his discretion in temporarily establishing a six month interval of telephone contact as a transition from supervised visitation to unsupervised visitation.

In her second assignment of error, the plaintiff contends that the trial court erred in not formulating an intervention plan prohibiting alienation by the custodial parent to the non-custodial parent. The plaintiff asserts that the child was alienated after the father was awarded sole custody and, thus, this argument apparently relates back to the May 2002 judgment and is not properly before the court in this appeal. The plaintiff also suggests that because the child is alienated, custody should be transferred to her. Because the issue below was visitation and not change of custody, this issue is also not properly before us.

|4In her third assignment of error, the plaintiff argues that alienating the child is emotional abuse and that the trial court erred in not placing the child in therapy. As a basis for this argument, she asserts that the defendant ruled her into court on June 17, 2008, to obtain a mental health evaluation of her but, instead, all parties were evaluated except for the defendant’s wife. The plaintiff also asserts that (1) the child’s open hostility and confrontational behavior with her indicates that he is not thriving in the sole custody of his father; (2) his “behavior is a cry for help that the District Court should have heard”; (3) “something must be done to stop the Appellee from promoting ongoing alienation tactics, culpable with his wife, rehearsing the child against his mother; and (4) “because the child was left in an alienating environment of the sole custody of the Appellee, the child is completely helpless to ‘develop’ a relationship with his own mother.” Again, it is unclear whether this issue arises out of the May 2002 judgment awarding sole custody to the father or a ruling on June 17, 2008, but, in any event, it clearly is not related to the June 2009 judgment underlying this appeal. Accordingly, this assignment of error is meritless.

Finally, in her fourth assignment of error, the plaintiff argues that the trial court erred in not considering interference to visitation as grounds to modify visitation. In support of this assignment of error, the plaintiff refers to a scheduled visit where the child was not available due to a mis-communication as to the time and date of a visit between the supervising counselor and defendant, the defendant’s arrest for DWI, the registration of the child at school under the name Schenker rather than Leard, an incident where the defendant yelled at her in the court parking lot, and the defendant’s attempt to have her held in contempt of court on April 16, 2009, for missing school tuition payments.

|BIn the June 2009 judgment before the court, visitation was modified to provide for unsupervised visitation after a transitional six month period of telephone contact. We find no error in this modification and, accordingly, find this assignment of error to be without merit.

Defendant’s Assignments of Errors

The defendant enumerates four assignments of error. He contends that (1) the trial court erred in ordering the plaintiff into treatment with Dr. Fontenelle, who she consulted 13 years ago but who has never treated.her; (2) the trial court erred in declaring that he has not facilitated the relationship between the plaintiff and her son because as the parent with sole custody he has no duty to facilitate that relationship; (8) because the trial court erred in ordering him to pay for six months of cognitive therapy for the plaintiff based on its finding that the defendant did not facilitate the mother-son relationship; and (4) the trial court erred in granting the plaintiff twice weekly telephonic contact for six months between 9 am and 8 pm and should have ordered a specific time because the child is generally in school or camp between 9 and 3 and given the highly contentious history of the case.

The defendant argues that because he has sole custody rather than joint custody, he has no duty to exchange information or confer with her in exercising decision-making authority and therefore there is no duty to facilitate a relationship between mother and child. Accordingly, the defendant argues that the trial | r,court erred as a matter of law when it imposed a nonexistent duty on the defendant. Alternatively, he argues that there is no evidence that he has not facilitated the relationship and, in any event, the child does not think that the plaintiff facilitated a positive father-son relationship. Accordingly, the defendant argues that the trial court erred in ordering him to pay for six months of cognitive therapy for the plaintiff.

Whether there is a clearly defined duty to facilitate a mother-son relationship by the custodial father, common sense would suggest that to do so would be in the best interest of the child. However, because we do not find the father’s failure to facilitate the relationship a basis for ordering him to pay for the plaintiffs mental health therapy, we find that the trial court erred in ordering the defendant to do so and reverse this part of the judgment. Because the defendant is not financially responsible for the plaintiffs mental health treatment, we do not address his assignment of error pertaining to Dr. Fontenelle.

Finally, we find no merit in the defendant’s argument that the trial judge should have ordered a designated time for telephone contact between mother and son. The trial judge did not abuse his discretion in providing reasonable parameters rather than specific times for telephone contact during the transitional period between supervised and unsupervised visitation.

Conclusion

For the foregoing reasons, we affirm the judgment in part, reversing that portion which orders the defendant to pay for the plaintiffs mental health therapy.

AFFIRMED IN PART; REVERSED IN PART.

BONIN, J., Concurs With Reasons.

BONIN, J.,

Concurs With Reasons.

1,1 respectfully concur in the result.

The trial court previously determined from clear and convincing evidence that the best interest of this young man, now 15 years old, was served by the award of sole custody to his father. La. C.C. art. 132; see also Leard v. Schenker, 05-1125 (La.App. 4 Cir. 3/22/06), 930 So.2d 75.

I write separately to highlight La. C.C. art. 136 A which provides:

A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights, unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

The factors for determining the best interest of the child are set forth in La. C.C. art. 134. These factors are applicable to the determination of visitation as well as custody, but in the context of the appropriate proceeding. See, e.g., Acklin v. Acklin, 29, 193 (La.App. 2 Cir. 2/26/97), 690 So.2d 869.

In matters of visitation, the trial court is vested with much discretion, and we will not disturb its findings absent an abuse of discretion. Pendergrass v. Pendergrass, 94-1165 (La.App. 4th Cir.1996), 667 So.2d 1213, 1217. Here the trial judge lifted the requirement that the mother’s exercise of her visitation rights be supervised, but at the same time temporarily suspended the exercise of |2visitation (other than telephonic contact) by her conditioned upon her obtaining “cognitive behavioral therapy” by a designated psychologist.

Moreover, the trial judge was intent on rebuilding the mother-son relationship. During the hearing the mother had given some limited acknowledgement, short of a full appreciation, that persistent litigation with her son’s father (with its concomitant subjection of the young man to psychological probing which he detested) and forced visitation with her teenage son could be counter-productive to such a rebuilding. This young man clearly expressed his preference that he did not want further visitation with his mother and the trial court may consider his preference when deciding whether to deny or limit visitation rights of a noncustodial parent. See La. C.C. art. 134(9) (listing among the factors that the trial court can consider in determining the best interest of the child: “[t]he reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.”) See also Maxwell v. LeBlanc, 82-1801 (La.1983), 434 So.2d 375, 378. Considering that the judgment only ordered a conditional suspension of her visitation rights, the mother, it seems to me, should have prudently returned to the district court to show her compliance with the reasonable requirements of the judgment instead of submitting the resolution of her motion to modify visitation to the unavoidable delays of the appellate process, which have already exceeded the period of the temporary suspension.

Turning now to the father’s assertion that he has no legal affirmative duty to facilitate the relationship between his son and the mother. I agree that there is no such duty which could justify condemning him to pay for the mother’s treatment. While he may not be affirmatively required to “facilitate” the mother-son relationship, we are reminded that he is obliged not to interfere with it unless for good cause. La. C.C. art. 136.1 provides:

| a A child has a right to time with both parents. Accordingly, when a court ordered schedule of visitation, custody, or time to be spent with a child has been entered, a parent shall exercise his rights to the child in accordance with the schedule unless good cause is shown. Neither parent shall interfere with the visitation, custody or time rights of the other unless good cause is shown, (emphasis added.)

I also agree the trial court erred in ordering him to pay for Ms. Leard’s six months of therapy. The trial court did not express legal authority for this order and I have found none. The court may order one party to pay the costs of a mental health evaluation of the other party for use at a visitation proceeding. La. R.S. 9:331 A. This provision, however, does not extend to ordering the costs of one party’s treatment to be paid by the other. These costs might be countenanced had they been considered in an award of support for the young man himself, see generally La. C.C. arts. 141, 227, or as part of a determination of final or interim spousal support, see La. C.C. art. 112 et seq. The father, however, has sole custody of the young man and was never married to the mother. Accordingly, I agree that there is no legal basis upon which the trial court may assess the costs of the mother’s court-mandated therapy to the father.

I,therefore, concur.


author: MICHAEL E. KIRBY, Judge.

text:
    Lisa Marie ZUMPE v. ZARA’S LITTLE GIANT SUPER MARKET, INC. and ABC Insurance Company.
    No. 2009-CA-1255.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Dan A. Smetherman, New Orleans, LA, for Plaintiff/Appellant.
    Thomas L. Gaudry, Jr., Stacie P. Nehlig, Gaudry Ranson Higgins & Gremillion, L.L.C., Gretna, LA, for Defendant/Appel-lee, Zara’s Little Giant Supermarket, Inc.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

kThe plaintiff, Lisa Marie Zumpe, appeals a judgment from First City Court for the City of New Orleans that granted summary judgment in favor of the defendant, Zara’s Little Giant Supermarket, Inc. (“Zara’s”), dismissing her claims against it. For the reasons that follow, we affirm.

In her petition for damages, Ms. Zumpe alleges that she purchased a muffaletta sandwich from Zara’s grocery market. She further alleges that as she bit into the muffaletta she fractured a molar on an olive pit that Zara’s employee(s) had failed to remove while making the sandwich. As a result, Ms. Zumpe alleges she underwent dental treatment, which included a root canal and placement of a crown atop the fractured tooth.

Zara’s filed a motion for summary judgment, arguing that its employee(s) did not make the Italian olive salad used on the muffaletta sandwich at issue, but rather used a pre-made Italian olive salad, which was manufactured by Boscoli Foods, Inc. (“Boscoli Foods”), and purchased from Conco Food Service, Inc. (“Conco Food Service”), a wholesale food supplier. Citing the case of Porteous v. St. Ann’s Café and Deli, 97-0837, p. 1 (La.5/29/98), 713 So.2d 454, Zara’s argued that it cannot be liable for Ms. Zumpe’s injury because an olive pit is a naturally occurring substance that a customer would reasonably expect to find in olive salad. In opposing the motion, Ms. Zumpe argued that Zara’s employees prepared the muffaletta sandwich and, therefore, had a duty to examine the ingredients for inherent dangers existing in the product.

Following a hearing, the trial court granted Zara’s motion for summary judgment. Ms. Zumpe now appeals.

On appeal, Ms. Zumpe argues the trial court erred in granting summary judgment because no evidence was submitted from which the court could determine the cause and extent of her damages or the lack of liability on the part of Zara’s. She also argues that the trial court improperly granted summary judgment because Zara’s never filed a third party demand against Boscoli Foods.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882-83. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. “Favored in Louisiana, the summary judgment procedure ‘is designed | oto secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)). La. C.C.P. art. 966 C(2) provides, in pertinent part:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

(Emphasis added).

In Porteous v. St. Ann’s Café and Deli, supra, the plaintiff sued St. Ann’s Café and Deli after he broke a tooth biting into a pearl while eating an oyster poor boy. The Supreme Court, finding no liability on the part of the café, held that “[a] food provider, in selecting, preparing and cooking food, including the removal of injurious substances, has a duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food.” 97-0837 at p. 5, 713 So.2d at 457 (footnote omitted). The Court explained:

In determining whether a restaurant breached its duty by failing to act reasonably in the selection, preparation and cooking of the food that contained a substance which caused injury, the court should consider, among other things, whether the injurious substance was natural to the food served and whether the customer would reasonably expect to find such a substance in the particular type of food served.

Id. at p. 6, 713 So.2d at 457 (footnote omitted). The Court concluded that the injurious substance, a pearl, was in fact a substance natural to the food served, an oyster, and that it was reasonable for a customer to expect to find a pearl in the oyster. Id. The Court emphasized that the restaurant bought the oysters pre-shucked, pre-washed, and pre-packed from a reputable seafood supplier and “[tjhere was nothing more the defendant restaurant could reasonably have done to eliminate the small possibility that a customer might find a pearl in an oyster and be injured thereby.” Id. at p. 7, 713 So.2d at 457-458 (footnote omitted).

In support of its motion for summary judgment, Zara’s submitted the affidavit of Albert Zara, an owner and vice-president of Zara’s, who averred that the spread used in the muffaletta was an already prepared Italian olive salad manufactured by Boscoli Foods, and purchased from Conco Food Service. He averred that during the preparation of the muffal-etta sandwiches, employees look for possible foreign objects, but do not handle the Italian olive salad with their hands or have the opportunity to feel any existing olive pits, as the olive salad has already been prepared by Boscoli Foods. Mr. Zara further averred that an olive pit is similar in color to an olive and is not readily visible in the ingredients of the Italian olive salad.

In opposing the motion, Ms. Zumpe submitted no countervailing affidavit or any other evidence to contradict Mr. Zara’s affidavit. Considering an olive pit is a naturally occurring substance in olives, and in the absence of any evidence to show that Zara’s employees failed to act reasonably in selecting the ingredients used in the muffaletta sandwich and/or in preparing it, we find the trial court correctly Isgranted the motion for summary judgment dismissing Ms. Zumpe’s claim against Zara’s.

In her appeal brief, Ms. Zumpe points out that in Poplar v. Dillard’s Department Stores, Inc., 03-1023, p. 1 (La.App. 5 Cir. 12/30/03), 864 So.2d 789, the Fifth Circuit Court of Appeal declined to follow the decision in Porteous, supra. The plaintiff in Poplar sued Dillard’s after she broke several teeth when she bit into a foreign object in a shrimp poor boy at the store’s restaurant. The court applied the doctrine of res ipsa loquitur to the case, stating:

All three elements are present here. There is no question that the presence of a foreign object in prepared food is a circumstance from which it can be inferred that someone was negligent in the preparation of that food. It is equally clear that the ingredients of the sandwich were in the control of the restaurant staff. Finally, the negligent act of serving food with a foreign object in it is within the ambit of the duty owed to customers. Thus, an inference of negligence on defendant’s part was supportable.

03-1023 at p. 4, 864 So.2d at 791.

We find the instant case is clearly distinguishable from Poplar, supra, and, thus, res ipsa loquitur not appropriate for two reasons. First, as previously mentioned, an olive pit is not a foreign object but rather a naturally occurring substance in olives. Second, the olive salad used in the muffaletta sandwich was not in the exclusive control of Zara’s. It was pre-made by Boscoli Foods and purchased from Conco Food Service.

| ¡¡Finally, Ms. Zumpe argues that summary judgment was improperly granted because Zara’s never filed a third party demand against Boscoli Foods, the olive salad manufacturer. She contends Zara’s was the proper party to sue Boscoli Foods as a defendant because Zara’s enjoyed “privity of contract” with the manufacturer of the olive salad when it purchased their product. Ms. Zumpe mistakenly believes that because she did not purchase the olive salad directly from Boscoli Foods she could not sue it for damages. She also suggests that Zara’s knowingly withheld the name of the olive salad manufacturer.

This argument is without merit. Nothing in the record indicates that Ms. Zumpe was prevented from conducting discovery to obtain the name of the olive salad manufacturer and/or filing a claim against it.

Accordingly, for the reasons stated herein, the judgment of the First City Court is affirmed.

AFFIRMED.

      . Res ipsa loquitur is a rule of circumstantial evidence which permits the fact finder to infer negligence where 1) the circumstances surrounding the event are such they would not normally occur in the absence of negligence on someone's part, 2) the instrumentality was in the exclusive control of the defendant, and 3) the negligence falls within the duty of care owed the plaintiff. 03-1023, pp. 3-4, 864 So.2d 789, 791.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Percy L. JONES.
    No. 09-KA-788.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 13, 2010.
    Rehearing Denied May 17, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Vince Paciera, Jr., Michael Morales, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Mark 0. Foster, Attorney at Law, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant.
    Percy L. Jones, Angola, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

| STATEMENT OF THE CASE

Defendant, Percy Jones, was convicted by a jury of illegal possession of stolen things (a vehicle) valued at $500 or more, in violation of LSA-R.S. 14:69. The trial court sentenced him to ten years at hard labor. This Court affirmed defendant’s conviction on appeal. State v. Jones, 08-306, p. 8 (La.App. 5 Cir. 10/28/08), 998 So.2d 173, 178. The Louisiana Supreme Court subsequently denied writs. State v. Jones, 08-2895 (La.9/4/09), 17 So.3d 947.

Following defendant’s conviction, the State filed a habitual offender bill of information alleging defendant to be a fourth felony offender. Following a hearing, the trial judge found defendant to be a fourth felony offender, and imposed an enhanced sentence of life imprisonment without benefit of probation or suspension of sentence. Defendant appealed the habitual offender finding. On appeal, this Court found it was unclear from the record whether exhibits pertaining [4to one or more of the alleged predicate convictions were entered into evidence in the trial court. State v. Jones, 08-466, p. 8-9 (La.App. 5 Cir. 10/28/08), 998 So.2d 178, 183-184. This Court vacated the habitual offender finding and sentence and remanded the matter for further proceedings. Id.

On remand, the trial court re-arraigned defendant on the habitual offender bill of information on April 17, 2009, and defendant denied the allegations in the bill. On May 1, 2009, defendant filed written objections to the habitual offender bill, moving the trial court to quash the bill because he was not advised of his constitutional right of confrontation when he pled guilty to the predicate felony offenses, and because two of the alleged predicate convictions were not in the proper sequential order and thus could not be used to enhance his sentence.

The trial court held habitual offender hearings on May 1, 2009, and June 12, 2009, and found defendant to be a fourth felony offender. On June 12, 2009, the trial court re-sentenced defendant to life imprisonment without benefit of probation or suspension of sentence. Defendant filed a motion to reconsider sentence, which was denied by the trial court on August 13, 2009.

LAW AND DISCUSSION

In his sole counseled assignment of error, defendant complains that the trial court erred in holding a habitual offender rehearing, since 1) the rehearing violated his constitutional right to a speedy trial, and 2) this Court did not authorize a rehearing in its October 28, 2008 opinion. Regarding the first issue, the State responds that defendant did not preserve his right to appellate review, since he did not make a timely objection below. As to defendant’s second argument, the State responds that it is not precluded from re-litigating a habitual offender bill, since double jeopardy principles do not apply to habitual offender proceedings.

|fiOn May 15, 2009, defendant filed a motion to quash the habitual offender bill of information in the trial court, but the motion did not raise the speedy trial issue. Accordingly, he failed to preserve this issue for appeal. LSA-C.Cr.P. art. 841. Nevertheless, even if we address defendant’s speedy trial argument, we find that it is without merit.

LSA-C.Cr.P. art. 874 provides that a sentence shall be imposed without unreasonable delay. While LSA-R.S. 15:529.1 does not establish a time limit for habitual offender proceedings, the jurisprudence holds that a habitual offender bill must be filed within a reasonable time after the State learns the defendant has prior felony convictions. State v. Muhammad, 03-2991, p. 14 (La.5/25/04), 875 So.2d 45, 55; State v. Torres, 05-260, p. 6 (La.App. 5 Cir. 11/29/05), 919 So.2d 730, 734, writ denied, 06-0697 (La.10/6/06), 938 So.2d 65. Speedy trial concerns also require that habitual offender proceedings be completed in a timely manner. State v. Muhammad, 03-2991 at 15, 875 So.2d at 55. The longer the State delays filing and is responsible for postponing completion of the habitual offender proceeding, the more likely it is that the delay will be charged against the State. Id.

In the present case, the delays in defendant’s final habitual offender finding and sentencing have not been due to abusive behavior on the State’s part. The delays can be attributed, in large part, to defendant’s appeals. The record in this matter shows the State requested only one continuance after this Court’s remand to the trial court, and that the State requested the continuance in order to obtain a writ to have defendant brought to court. Accordingly, the record does not show that defendant’s speedy trial rights have been violated.

We also find no merit in defendant’s argument that this Court’s previous opinion did not authorize the trial court to hold a new habitual offender hearing. Defendant contends that the State failed to meet its burden of proof at the first Inhabitual offender hearing, and that his due process rights were violated when the trial court allowed the State a second chance to provide sufficient evidence to support the allegations in the habitual offender bill of information.

In its earlier opinion, this Court vacated the trial court’s habitual offender adjudication and sentence and remanded the case “for further proceedings.” State v. Jones, 08-466 at 9, 998 So.2d at 184. Although this Court’s opinion did not specifically state that defendant’s habitual offender adjudication was vacated, the language of the opinion as a whole reveals that this Court intended to vacate both the habitual offender finding and sentence, and we construe the ruling in that opinion as such. Further, the trial court did not err in allowing the State a second opportunity to introduce its exhibits into evidence. Since a habitual offender hearing is not a trial, the principles of double jeopardy do not apply. State v. Dorthey, 623 So.2d 1276, 1279 (La.1993).

In State v. Mazique, 06-708 (La.App. 5 Cir. 1/30/07), 951 So.2d 1182, the defendant was found to be a third felony offender after a habitual offender hearing. At the hearing the trial court took judicial notice of the records pertaining to the predicate offenses, but the State neglected to introduce the records into evidence. Id., 06-708 at 6, 951 So.2d at 1185. On appeal, this Court found the State’s failure to introduce those records was error, and it vacated the habitual offender finding and sentence. Id., 06-708 at 6, 951 So.2d at 1186. As it did in the instant case, this Court remanded the matter to the trial court. This Court noted that “in such cases the defendant can be retried on a multiple bill since double jeopardy does not attach to multiple offender hearings.” Id.

Based on the foregoing, we find that the trial court did not err by holding a rehearing on the habitual offender bill of information and defendant’s due process rights were not violated. Thus, this assignment of error is without merit.

|7In additional to his counseled brief, defendant filed a supplemental pro se brief asserting three assignments of error. In his first pro se assignment of error, defendant complains that his counsel rendered ineffective assistance by failing to ensure that he was advised of his constitutional right to remain silent before offering a stipulation at the habitual offender rehearing that he (defendant) was the same person who was convicted of the alleged predicate felonies.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. State v. Myers, 07-854, p. 19 (La.App. 5 Cir. 4/29/08), 981 So.2d 214, 228, writ denied, 08-1325 (La.2/13/09), 999 So.2d 1145. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate: 1) that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) that his counsel’s errors or omissions resulted in prejudice so great as to deprive the defendant of a fair trial or a trial whose result is reliable. Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Lacaze, 99-0584, p. 20 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002)).

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Taylor, 04-346, p. 10 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. In this instance, the record is sufficient to address the issue on appeal.

IsAt the beginning of the habitual offender rehearing, defense counsel stated, “And to move this along, after discussing this with Mr. Jones, we will stipulate to identity that Mr. Jones is the same — Do I have your permission to do that, Mr. Jones?” The transcript indicates that defendant responded by nodding his head. Counsel then stated, “That he is the same Percy Jones so we won’t need a fingerprint expert.” The prosecutor replied, “I’ll certainly accept the stipulation that the defendant is—that the defendant who is convicted in the trial in this court is the same person in the three predicates or links which are alleged in the multiple bill.”

In order for a defendant to be found a habitual offender, the state is required to prove the existence of a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. State v. Nguyen, 04-321, p. 19 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, 912, writ denied, 05-0220 (La.4/29/05), 901 So.2d 1064. LSA-R.S. 15:529.1 D(1)(a) provides that the trial court shall inform a defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law. Implicit in this directive is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Morgan, 06-529, p. 22 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213. Generally, a trial court’s failure to advise the defendant of his right to a habitual offender hearing or his right to remain silent is considered harmless error when the defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Schnyder, 06-29, p. 10 (La.App. 5 Cir. 6/28/06), 937 So.2d 396, 403.

In the instant case, the State did not prove defendant’s identity through testimony at the habitual offender rehearing and there is nothing in the transcript of the habitual offender rehearing to show that defendant was advised of his habitual | ¡¡offender rights prior to the stipulation as to identity. Nevertheless, based on the circumstances of this case, we find that defense counsel’s error in failing to ensure that defendant was advised of his right to remain silent was harmless, because the record does not show that he was prejudiced.

At the original habitual offender hearing, the State presented evidence to establish defendant’s identity as the same person convicted of the three alleged prior felonies. The State produced a fingerprint expert, Technician Chad Pittfield, who reviewed the State’s evidence and identified defendant as the same person who was convicted of the three predicate felonies. Although a State exhibit or exhibits were not properly entered into the record at the first habitual offender hearing, the State’s fingerprint expert presumably would have made the same finding at the habitual offender rehearing based on the fingerprints contained in the State’s evidence.

Based on the foregoing, we find that defendant has not shown that he received ineffective assistance of counsel. Thus, this assignment of error is without merit.

In his second pro se assignment of error, defendant argues that the State failed to prove his status as a fourth felony offender, because it failed to show that he was advised of his right of confrontation before entering guilty pleas to the predicate felonies alleged in the habitual offender bill of information.

As stated above, in a habitual offender proceeding, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. When the State seeks to use a prior guilty plea to enhance punishment under LSA-R.S. 15:529.1, the State must prove the fact of conviction and that the defendant was represented by counsel—or waived counsel—at the time he entered the plea. State v. Zachary, 01-3191, p. 3 (La.10/25/02), 829 So.2d 405, 407 (per curiam), citing State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Fleming, 04-1218, p. 4 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 455-56, writ denied, 05-1715 (La.2/10/06), 924 So.2d 161. Thereafter, the defendant bears the burden of proving a procedural defect in the proceedings or an infringement of his constitutional rights. If the defendant meets his burden, the State must prove the constitutionality of the predicate plea. Id.

At the habitual offender rehearing on May 1, 2009, counsel stipulated that defendant was the same person who was convicted of the prior felonies. As proof of the prior guilty pleas, the State offered the following: State’s Exhibit 2, which included certified copies of the indictment in district court case number 96-3413, a minute entry documenting defendant’s guilty plea to manslaughter on February 19, 1997, and a waiver of rights form; State’s Exhibit 5, which included certified copies of a bill of information in district court case number 95-2767, a minute entry documenting defendant’s guilty plea to theft between $100 and $500 on March 29, 1996, and a waiver of rights form; and State’s Exhibit 6, which included certified copies of a bill of information in district court case number 366-526, a docket master documenting defendant’s guilty plea to attempted possession of a firearm by a convicted felon on September 28,1995, a waiver of rights form, and a document that appears to be a commitment pertaining to case number 366-526.

Based on the documentation presented, the State met its initial burden of proving the existence of the prior guilty pleas, and that defendant was represented by counsel. The burden thus shifted to defendant to establish a defect in the proceedings or an infringement of his constitutional rights.

Defense counsel objected to the three predicate felony convictions on grounds that the State’s documentation failed to show defendant was advised of his constitutional right of confrontation before he pled guilty to the predicate felonies. The State responded that each of the waiver of rights forms offered into evidence showed defendant was advised of all of his constitutional rights — including his right |nof confrontation — when he entered the predicate guilty pleas. The trial judge admitted the State’s exhibits into evidence over counsel’s objections.

The waiver of rights/guilty plea forms included in State’s Exhibits 2, 5, and 6 show that defendant was advised of all three of his Boykin rights when he entered three predicate guilty pleas, including his right of confrontation. Those forms were initialed by defendant and were also signed by defendant, his attorney, and the judge. Additionally, State’s Exhibits 2, 5, and 6 included commitments and/or minute entries that showed defendant was advised of his rights and that he waived them. Based on the evidence before us, we find that defendant failed to meet his burden of proving a procedural defect in the proceedings or an infringement of his constitutional rights.

In his third pro se assignment of error, defendant argues that his life sentence as a fourth felony offender is excessive, considering that the underlying felony and two of his three predicate felonies were non-violent offenses.

Defense counsel made a motion to reconsider sentence both orally and in writing in the trial court, but he did not state specific grounds for his motion. Rather, he simply objected to the “excessive and harsh nature” of the sentence imposed, and the trial court summarily denied the motion. The failure to state the specific grounds upon which a motion to reconsider sentence is based limits a defendant to a review of the sentence for constitutional excessiveness. LSA-C.Cr.P. art. 881.1; State v. Clark, 05-61, p. 16 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, 1017, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538. Accordingly, we review defendant’s sentence for constitutional excessiveness.

|12A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Id. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. Id., 01-2574 at 6-7, 839 So.2d at 4. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and is, therefore, given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16; State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Based on defendant’s underlying conviction and prior convictions, defendant’s sentencing exposure was 20 years to life, pursuant to LSA-R.S. 15:529.1 A(l)(c)(i). In imposing a life sentence, the trial judge commented, “I remember this case, Mr. Jones. I remember this being that church van for those special needs children, and, that wasn’t a nice thing that you did. Those kids were left without transportation to a church function. And based upon that, and all your other priors, the Court is going to sentence you to life without benefit of probation or suspension of sentence.”

The habitual offender bill of information in the record indicates that defendant has a prior conviction for a crime of violence, manslaughter. The bill of information shows that he had been charged with second degree murder, which carries a mandatory life sentence, but he later pled guilty in 1997 to manslaughter. Defendant received a sentence of only five years at hard labor for the manslaughter 11sconviction. He also has prior convictions for theft and attempted possession of a firearm by a convicted felon. The documents in State’s Exhibit 6 show that the attempted possession of a firearm by a convicted felon conviction was based on a prior conviction for attempted burglary.

Defendant argues that a life sentence is disproportionate to the severity of his underlying offense, possession of a stolen vehicle. However, considering the record before us, we cannot say that the trial judge abused his broad discretion in imposing the maximum sentence of life imprisonment as a fourth felony offender. Accordingly, this assignment of error is without merit.

ERRORS PATENT

Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. Since this appeal pertains only to defendant’s habitual offender proceedings, the error patent review was limited to those proceedings. Our review did not reveal any errors that require corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s adjudication as a fourth felony offender and his sentence of life imprisonment.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).