text:
    SBN V FNBC LLC v. VISTA LOUISIANA, LLC
    NO. 2018-CA-1026
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 27, 2019
    Mark C. Landry, NEWMAN MATHIS BRADY & SPEDALE, PLC, 433 Metairie Road, Suite 600, Metairie, LA 70005, COUNSEL FOR PLAINTIFF/APPELLEE
    John E. Seago, SEAGO & CARMICHAEL, APLC, 8126 One Calais Avenue, Suite 2-C, Baton Rouge, LA 70809, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
    Judge Rosemary Ledet This is a suit on a promissory note. From the trial court's judgment granting the motion for summary judgment filed by the plaintiff, SBN V FNBC LLC ("SBN"), the defendant, Vista Louisiana, LLC ("Vista"), appeals. Vista also seeks review of the trial court's interlocutory judgment denying its motions for new trial and to compel discovery. The issues before us on this appeal are two-fold: (i) whether the trial court prematurely granted summary judgment without allowing Vista adequate discovery; and (ii) whether the trial court erred in finding that SBN was entitled to summary judgment on its claims against Vista. Because SBN's motion for summary judgment revolves around two legal determinations-construction of a contract (the Business Loan Agreement) (the "Contract") and interpretation of a statute (the Louisiana Loansharking Statute, La. R.S. 14:511 ) (the "Statute") -we find the trial court did not prematurely rule on SBN's summary judgment motion. On the merits, we find no legal error in the trial court's rejection of Vista's defenses. For these reasons, we affirm the trial court's judgment granting SBN's summary judgment motion.
    FACTUAL AND PROCEDURAL BACKGROUND
    On July 15, 2015, Vista executed a promissory note payable to the order of First NBC Bank ("FNBC") (the "Note"). The original principal amount of the Note was $ 1,000,000.00. The Note was payable "in full immediately upon Lender's demand" or, if no demand was made, "no later than February 28, 2016." The Note had a variable interest rate. Contemporaneously with the execution of the Note, Vista executed the Contract with FNBC. Pursuant to the Contract, Vista provided a Letter of Credit (the "LOC"), which was in the same amount as the Note, as security for the Note.
    In April 2017, FNBC closed; and the Federal Deposit Insurance Corporation (the "FDIC") was named as FNBC's receiver. At that time, the Note was in default. In October 2017, the FDIC entered into a loan sale agreement with SBN. Pursuant to that agreement, SBN purchased from the FDIC a pool of loans, which included the Note. On the allonge attached to the Note, the FDIC endorsed the Note to the order of SBN.
    In January 2018, SBN commenced this suit on the Note against Vista. In its petition, SBN averred that it was the holder of the Note and that it had the rights of a holder in due course. In its petition, SBN prayed for a judgment against Vista for the following five items: (i) the unpaid principal balance of the Note-$ 1,000,000.00; (ii) the accrued unpaid interest due on the Note through January 5, 2018-$ 75,104.16; (iii) additional default interest of 21% from January 6, 2018, until paid; (iv) late charges-$ 2,000.00; and (v) attorneys' fees of 25% of the total sum due.
    In March 2018, Vista answered the suit asserting the following two defenses: (i) off-set based on FNBC's failure to timely draw down on the LOC (the "LOC Defense"); and (ii) absolute nullity based on the Statute (the "Loansharking Defense").
    Shortly after Vista's answer was filed, SBN filed a motion for summary judgment, contending that it was a holder in due course. In support, SBN provided an affidavit of Kelli Wood, SBN's custodian of records. In her affidavit, Ms. Wood identified the Note and the facts surrounding SBN's acquisition of the Note. Attached to her affidavit and identified in it were copies of the Note and the Contract.
    Opposing the motion, Vista acknowledged the validity of the Note and the Contract; however, it disputed SBN's status as a holder in due course. On the merits, Vista asserted the same two defenses it asserted in its answer-the LOC Defense and the Loansharking Defense.
    In support, Vista attached to its opposition affidavits from the following three people: (i) Lawrence Starkman, Vista's manager; (ii) John Seago, Vista's attorney; and (iii) Rene Meaux, a certified public accountant retained by Vista. Mr. Starkman attested that Vista had "filed Interrogatories, Requests for Production of Documents and Admissions of Fact which requested SBN to provide the exact amount SBN paid for the Vista loan" (the "Discovery Requests"). Mr. Seago attested that he prepared the Discovery Requests. Attached to and identified in Mr. Seago's affidavit was a copy of the Discovery Requests. Mr. Meaux attested that he performed calculations based on the average price paid in each pool for each loan and that he concluded the rate of return sought by SBN exceeded 45% per annum. Attached to Mr. Meaux's affidavit were copies of his report and a summary of his calculations.
    On May 11, 2018, the summary judgment hearing was held. At the hearing, SBN conceded, contrary to the allegation in its petition, that it was not a holder in due course; and Vista requested a continuance to conduct discovery. Vista stressed that, on April 17, 2018, it filed the Discovery Requests; that SBN had not yet answered them; and that SBN's responses were not due until May 17, 2018, six days after the hearing. At the hearing, the trial court orally granted SBN's motion for summary judgment and, by implication, denied Vista's request for a continuance. Although the trial court granted SBN's summary judgment motion at the hearing, two weeks later (on May 25, 2018), Vista filed a motion to compel, seeking a response to the Discovery Requests.
    On June 1, 2018, the trial court rendered a written judgment granting SBN's summary judgment; the judgment was in favor of SBN and against Vista for the amounts prayed for in the petition with the one exception. Five days later (on June 6, 2018), Vista filed a motion for new trial, asserting the same two defenses that it raised in its answer and its opposition to the motion for summary judgment. The trial court denied both the motion to compel and motion for new trial. Vista appealed.
    DISCUSSION
    "Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Smith v. Robinson , 18-0728, p. 5 (La. 12/5/18), 265 So.3d 740, 744, 2018 WL 6382118, *3 (citing La. C.C.P. art. 966 ; Louisiana Safety Ass'n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass'n , 09-0023, p. 5 (La. 6/26/09), 17 So.3d 350, 353 ). Likewise, "when a matter involves the interpretation of a statute, it is a question of law, and a de novo standard of review is applied." New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans , 17-0320, p. 5 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 688 (citing Red Stick Studio Dev., L.L.C. v. State ex rel. Dep't. of Econ. Dev. , 10-0193, p. 9 (La. 1/19/11), 56 So.3d 181, 187 ).
    The summary judgment procedure is favored. La. C.C.P. art. 966(A)(2). The standard for obtaining a summary judgment is set forth in La. C.C.P. art. 966(A)(3), which provides that "[a]fter an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown , 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith v. Our Lady of the Lake Hosp., Inc ., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ).
    Typically, suits on promissory notes are appropriate for summary judgment when the debtor establishes no defense against enforcement. American Bank v. Saxena , 553 So.2d 836, 845 (La. 1989) ;
    Premier Bank v. Percomex, Inc. , 615 So.2d 41, 43 (La. App. 3d Cir. 1993) ; see also Fed. Deposit Ins. Corp. v. Cardinal Oil Well Servicing Co., Inc. , 837 F.2d 1369, 1371 (5th Cir.1988) (observing that "[t]ypically, suits on promissory notes provide fit grist for the summary judgment mill").
    In a suit on a promissory note, the plaintiff-lender's burden of proof is straightforward; "the [plaintiff-lender's] production of the note sued upon makes his case." Merchants Trust & Sav. Bank v. Don's Int'l, Inc. , 538 So.2d 1060, 1061 (La. App. 4th Cir. 1989) ; Pannagl v. Kelly , 13-823, p. 6 (La. App. 5 Cir. 5/14/14), 142 So.3d 70, 74 (observing that "[o]nce the plaintiff, the holder of a promissory note, proves the maker's signature, or the maker admits it, the holder has made out his case by mere production of the note and is entitled to recover in the absence of any further evidence"). In order to defeat summary judgment, the defendant-borrower must assert a valid defense to liability on the promissory note, not separate and distinct claims that are unrelated to the question of liability. Saxena , 553 So.2d at 844.
    Here, Vista does not dispute the validity of the Note produced by SBN. Rather, as noted elsewhere in this opinion, Vista asserts two defenses to the Note. Villa also asserts the procedural argument that summary judgment was prematurely granted and that its request to continue and to compel discovery should have been granted. Addressing the issues Vista raises on appeal, we divide our analysis into three parts-prematurity, the LOC Defense, and the Loansharking Defense.
    Prematurity
    A motion to continue is the proper method to challenge a motion for summary judgment on the basis of prematurity due to inadequate discovery. "When discovery is alleged to be incomplete, a trial court has the discretion either to hear the summary judgment motion or to grant a continuance to allow further discovery." Roadrunner , 17-0040, p. 11, 219 So.3d at 1272 (citing Simoneaux v. E.I. du Pont de Nemours and Co. , 483 So.2d 908, 912 (La. 1986) ; Eason v. Finch , 32,157, p. 7 (La. App. 2 Cir. 8/18/99), 738 So.2d 1205, 1210 ). The trial court denied Villa's request to continue. We review the trial court's decision under an abuse of discretion standard. Id.
    "Construing Article 966, this court has held that '[a]lthough the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case.' " Roadrunner , 17-0040, p. 11, 219 So.3d at 1273 (quoting Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp. ), 03-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969 ). This court, as Vista points out, has crafted a multi-factor test for determining whether adequate time for discovery was allowed before granting summary judgment.
    Nonetheless, the Louisiana Supreme Court has instructed that "[u]nless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact." Simoneaux v. E.I. du Pont de Nemours & Co. , 483 So.2d 908, 913 (La. 1986). Consistent with that principle, the jurisprudence has recognized that, despite pending discovery requests, summary judgment is not premature when the issue presented is purely a legal one and additional discovery will not change the result. In that context, there are no genuine issues of material fact; and additional discovery would be fruitless. See Jones v. Blanas , 393 F.3d 918, 930 (9th Cir. 2004) (citing Klingele v. Eikenberry , 849 F.2d 409, 412 (9th Cir.1988) ) (observing that "summary judgment in the face of requests for additional discovery is appropriate only where such discovery would be 'fruitless' with respect to the proof of a viable claim"). When additional discovery would be "fruitless," the multi-factor test for determining whether adequate time discovery was allowed is inapposite. Such is the case here.
    To determine whether additional discovery would be fruitless, a court must "look to the legal theories that might sustain the [non-movant's] claims." Klingele , 849 F.2d 409, 412 (9th Cir.1988) ; see Smith , 93-2512, p. 27, 639 So.2d at 751 (observing that materiality of a fact is determined based on applicable substance law). Here, Vista asserts two defenses in opposing SBN's motion for summary judgment-the LOC Defense and the Loansharking Defense. As noted at the outset, both defenses present purely legal issues, which can be resolved by applying rules of contractual interpretation and statutory construction. Therefore, this is a case in which additional discovery would be fruitless.
    Reaching this result, the trial court, in its reasons for judgment, observed that "[n]o amount of additional discovery on Vista's asserted defenses would create a genuine issue as to which reasonable persons could disagree." We agree. Vista's reliance on the multi-factor test is misplaced. The trial court did not abuse its discretion in denying the request to continue and the motion to compel discovery.
    The LOC Defense
    Vista's first defense on the merits is that it is entitled to a set-off, based on FNBC's failure to exercise its rights under the LOC before it expired, which LOC would have paid the Note in full. FNBC's failure to exercise its rights under the LOC, Vista contended, was both a breach of the Contract and negligence. SBN counters that the parties agreed in the Contract that FNBC had no duty to draw down the LOC. Given that FNBC had no duty to do so, SBN contends that there could be no breach of duty.
    Rejecting the LOC Defense, the trial court, in its written reasons for judgment, reasoned that "[a]s the [Contract], signed by Vista, did not require FNBC to seek set-off from the [LOC], Vista cannot now raise the failure to do so as a defense." We reach the same result for the following two reasons.
    First, the unambiguous language of the Contract supports the trial court's finding that FNBC was not required to seek a set-off from the LOC. The Contract provides as follows:
    Lender shall have the additional right, again at its sole option, to file an appropriate collection action against Borrower and/or against any guarantor or guarantors of Borrower's Loan and Note, and/or to proceed or exercise any rights against any Collateral then securing repayment of Borrower's Loan and Note. Borrower and each guarantor further agree that Lender's remedies shall be cumulative in nature and nothing under this Agreement or otherwise, shall be construed as to limit or restrict the options and remedies available to Lender following any event of default under this Agreement or otherwise.
    Except as may be prohibited by applicable law, all of Lender's rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower or of any Grantor shall not affect Lender's right to declare a default and to exercise its rights and remedies.
    Under the unambiguous terms of the Contract, the lender, FNBC, had the option to proceed against the collateral, the LOC, but was not required to do so.
    Second, a contract to provide security for an outstanding obligation is an accessory contract. Here, the LOC is the accessory obligation; the principal obligation is the Note. As SBN points out, "[w]hile a surety, under some conditions may, by requesting discussion of the property of the principal, require a creditor to pursue the principal before pursuing the surety, La. C.C.P. art. 5152, there has never been a requirement that the creditor pursue his collateral before pursuing the debtor, or that he could only pursue the debtor if he had pursued the collateral." To the contrary, "when a debtor defaults on the payment of the principal obligation, the creditor avails himself of his security device, if he has one, but there is no rule of law which prohibits the creditor from proceeding on the principal debt." D'Amico v. Canizaro , 256 La. 801, 808, 239 So.2d 339, 341 (1970) (internal footnote omitted).
    In sum, under both the governing legal principles regarding accessory obligations and the unambiguous provision of the Contract, FNBC's failure to timely call the LOC can have no impact on the principal obligation Villa owes on the Note. For these reasons, we find, agreeing with the trial court, that Vista's LOC Defense is unpersuasive.
    The Loansharking Defense
    Vista's second defense is that the rate of return or "compensation" that SBN realized on the Note violated the maximum compensation allowed under the Statute-45% per annum-and thus amounts to criminal usury-loansharking. Vista contends, as the trial court noted, that "because SBN was able to acquire the [N]ote for pennies on the dollar, it received an 'unconscionable' amount of 'compensation' considering the standard interest combined with the bonus resulting from its acquisition of the [N]ote at a discount." Vista contends that when SBN purchased the Note, it became the new lender for this loan. According to Vista, "[t]he difference between what [SBN] paid for Vista's loan and what it is requiring Vista to pay back is 'other compensation' referred to in the Statute." Vista contends that given SBN's actions violate the Statute, SBN's attempt to obtain a money judgment on the Note was void as against public policy and that the Note was an absolute nullity.
    SBN's counters that the Note is exempt from the Statute. According to the Note itself, "[t]o the extent not preempted by federal law, this business or commercial loan is being made under the terms and provisions of La. R.S. 9:3509, et seq. " It notes that this loan was made pursuant to the statutory authority granted in both Title 6 and Title 9 of the Revised Statutes. SBN further notes that the Statute was enacted in 1995, yet no court has seen fit to strike down a commercial loan contract on the grounds that the interest rate was unconscionable under the Statute. SBN also argues when a third party purchases a note, and then enforces it according to its terms, the maker of the note is not being forced to do anything more than he contracted to do-pay the principal amount of the note, representing the money he was loaned, plus interest.
    Agreeing with SBN, the trial court, in its written reasons for judgment, observed that Vista's interpretation of the Statute "would effectively outlaw the common practice of purchasing notes at a discount" and that "purchasing a note at a discount, no matter how large the windfall that might accrue on successful collection, is not loansharking as contemplated by La. R.S. 14:511." The trial court also noted that "Vista does not appear to cite nor could this Court find any case that supports such an interpretation." The trial court thus determined that the Statute was not violated by Vista purchasing the Note from the FDIC at a discount and enforcing the Note according to its terms. We agree.
    In construing the Statute, we first note the well-settled principle that "criminal statutes are to be strictly construed." State v. Vogel , 18-0174, p. 12 (La. App. 1 Cir. 9/24/18), 261 So.3d 801, 809. We further note that the term loansharking is defined as "[t]he practice of lending money at excessive and esp. usurious rates, and often using threats or extortion to enforce repayment." BLACK'S LAW DICTIONARY (10th ed. 2014).
    Because there are no cases construing or citing the Statute and because loansharking is criminal usury, we look for guidance to jurisprudence construing the Louisiana civil usury law. The jurisprudence has observed that the usury laws of this state have historically exempted commercial discounting. Lafayette Royale Apartments , 397 F.2d at 381 (observing that "[c]ommercial discounting ... is permissible under Louisiana law"). Given the usury law jurisprudence and strictly construing the Statute, we conclude that the commercial practice of buying a note at a discount, here from the FDIC, is not the type of act the Louisiana Legislature was seeking to prevent in enacting the Statute.
    When a note is purchased at a discount, and then enforced according to its terms, the maker of the note is being called upon to do nothing other than what the maker contracted to do. For this reason, the general rule is that "the sale or purchase of negotiable or assignable commercial paper or another chose in action or evidence of indebtedness transferable in trade and business transactions, for valuable or legal consideration after its first negotiation, is not usurious even though the price or other consideration determined upon is less than the nominal or face value of the instrument purchased." 44B Am.Jur.2d Interest and Usury § 95 (citing First All. Bank v. Westover, Inc ., 222 Ga.App. 524, 524-25, 474 S.E.2d 717, 718 (1996) ).
    Westover is illustrative. There, the court framed the issue before it as "whether a discount received by one of two joint lenders at the time it bought the interest of the other lender shall be included in calculating interest for the purpose of evaluating a usury claim pursuant to OCGA § 7-4-18." Westover , 222 Ga.App. at 524-25, 474 S.E.2d at 718. Addressing that issue, the court observed that "[t]he gist of the [borrowers'] complaint is not that [the lender] obtained the Primary Loan at a discount-but rather that [the lender] improperly prevented the [borrowers] from sharing in the benefits derived from that discount." Westover , 222 Ga.App. at 527, 474 S.E.2d at 720 (1996). The court further observed that when the lender purchased the Primary Loan, its principal value was $ 1.48 million and that the borrowers enjoyed full use of that $ 1.48 million. The court thus found the borrowers' usury argument unpersuasive, reasoning that "it is not usurious for a borrower to pay interest on the full amount that it borrowed." Id. (citing Williams v. Powell , 214 Ga.App. 216, 218, 447 S.E.2d 45 (1994) (in conducting a usury analysis, "[i]nterest is calculated on the amounts of which the borrower had use") ).
    Here, Vista makes a similar argument. It implicitly contends that it is not being allowed to share in the built-in profit that SBN will receive on the Note, which it purchased at a discount. The built-in profit-the difference between the amount a purchaser pays for a note and the face amount of the note-is what Vista seeks to label "other compensation" under the Statute. There is a difference, however, between additional charges that are added to the principal amount of a note-discounted interest and other charges-and the amount a purchaser pays for a note, with the option of enforcing the note according to its terms-the well-established practice of commercial discounting. This is a commercial discounting case. SBN purchased the Note from the FDIC at a discount and is seeking to enforce the Note according to its terms. Repeating the trial court's remark, "purchasing a note at a discount, no matter how large the windfall that might accrue on successful collection, is not loansharking." For this reason, the amount that SBN paid the FDIC for the Note simply is not relevant to the criminal usury analysis. The Loansharking Defense is not persuasive.
    DECREE
    For the foregoing reasons, the judgment of the trial court is affirmed.
    AFFIRMED

      La. R.S. 14:511 provides as follows:
      A. A person is guilty of loansharking when he knowingly solicits, or receives any money or anything of value, including services, as interest or compensation for a loan, or as forbearance of any right to money or other property, at a rate exceeding forty-five percentum per annum or the equivalent rate for a longer or shorter period. This Section shall not apply to any transaction under Title 6, Title 9, or Sections 1751 through 1770 of Title 37 of the Louisiana Revised Statutes of 1950 or under R.S. 9:3500.
      B. Whoever commits the crime of loansharking is guilty of a felony and shall be punished by a fine of not more than ten thousand dollars or imprisoned for not less than one year nor more than five years with or without hard labor, or both.
      C. For the purposes of this Part, the term "person" shall mean any individual, partnership, corporation, or combination of individuals.

      On January 5, 2018, SBN exercised its option, pursuant to the "Interest after Default" provision of the Note, to increase the interest rate to 21%. This provision of the Note tracks the language of La. R.S.9:3509(B)(1).

      According to his calculations, Mr. Meaux determined that SBN paid an average amount of either twenty-three cents or thirty-six cents per dollar for the Note, depending on which of two possible loan pools the Note was included. These average amounts were used by Mr. Meaux to calculate the "other compensation" SBN received on the Note; he explained that "the average price per loan paid by SBN was then compared to the amount SBN is now claiming Vista owed under the [Note] ... to determine the rate of return on their investments."

      In its reasons for judgment, the trial court explained that "[t]he written judgment was submitted after the fact and not signed by the Court until June 1, 2018."

      The exception was that the request for attorneys' fees. Although SBN requested 25% of the total sum, the trial court awarded attorneys' fees of $ 10,000.00.

   6 La. C.C.P. art. 966(A)(2) provides that "[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action" and that "[t]he procedure is favored and shall be construed to accomplish these ends."

7 La. C.C.P. art. 966(C)(2) provides that "[f]or good cause shown, the court may order a continuance of the hearing."

8 The multi-factor test this court has crafted is as follows:

• whether the party was ready to go to trial;
• whether the party indicated what additional discovery was needed;
• whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it; and
• whether the discovery issue was raised in the trial court before the entry of the summary judgment.

Bass Partnership v. Fortmayer , 04-1438, p. 10 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75 (citing Greenhouse v. C.F. Kenner Associates Ltd. Partnership , 98-0496, p. 3 (La. App. 4 Cir. 11/10/98), 723 So.2d 1004, 1006 ); Roadrunner , 17-0040, pp. 11-12, 219 So.3d at 1273 ; St. Pierre Ass'n v. Smith , 17-0228, pp. 11-12 (La. App. 4 Cir. 12/6/17), 234 So.3d 170, 178.

9 See Whitney Bank v. Garden Gate New Orleans, L.L. C., 17-362, pp. 6-7 (La. App. 5 Cir. 12/27/17), 236 So.3d 774, 781 (observing, in a suit on a promissory note, that "defendants have not shown there are any genuine issues of material fact for which discovery is necessary, and thus, defendants have not shown that a probable injustice has occurred" in denying motion to continue); River Bend Capital, LLC v. Lloyd's of London , 10-1317, p. 5 (La. App. 4 Cir. 4/13/11), 63 So.3d 1092, 1096 (observing that "[f]urther discovery to verify what Lloyd's meant by 'full and final settlement' is unnecessary where the language is clear and unambiguous as here"); Hamilton v. Willis , 09-0370, p. 3 (La. App. 4 Cir. 11/4/09), 24 So.3d 946, 948 (observing that "[a]dditional discovery cannot change the motorsports exclusion, which we find to be clear and unambiguous and not leading to absurd consequences"); Orleans Par. Sch. Bd. v. Lexington Ins. Co. , 12-1686, p. 30 (La. App. 4 Cir. 6/5/13), 118 So.3d 1203, 1223 (observing that "[w]hen the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent (La. C.C. art. 2046 ); and additional discovery cannot change the result").

10 As a commentator has observed, "[t]he general Louisiana summary judgment procedure is taken from the federal procedure, and the jurisprudence under the federal procedure may be considered in applying the Louisiana procedure." 1 Frank L. Maraist, La. Civ. L. Treatise, Civil Procedure § 6:8 (2d Ed. 2018).

11 The parties do not dispute that Vista placed the LOC with FNBC as security for the loan and that FNBC failed to exercise its rights under the LOC.

12 The Contract defines "Collateral" as the LOC.

13 See La. C.C. art. 1913 (providing that "[a] contract is accessory when it is made to provide security for the performance of an obligation" and that "[w]hen the secured obligation arises from a contract, either between the same or other parties, that contract is the principal contract"); see also La. C.C. art. 3136 (providing that "[s]ecurity is an accessory right established by legislation or contract over property, or an obligation undertaken by a person other than the principal obligor, to secure performance of an obligation. It is accessory to the obligation it secures and is transferred with the obligation without a special provision to that effect").

14 La. C.C.P. art. 5152 provides that "[w]hen a surety is sued by the creditor on the suretyship obligation, and the right of discussion has been created by contract between the surety and the creditor, the surety may plead discussion to compel the creditor to obtain and execute a judgment against the principal before executing a judgment against the surety."

15 See also Hancock v. Bridges , 547 So.2d 1103, 1106 (La. App. 1st Cir. 1989) (citation omitted) (observing that the creditor "can proceed on the principal debt rather than on the security device"); Whitney Nat. Bank v. Jeffers , 573 So.2d 1262, 1266 (La. App. 4th Cir. 1991) (observing that "[t]he pledgee has the legal right to proceed on the pledge or to wait until the maturity of the principal obligation and sue on it, disregarding the pledged property").

16 See La. C.C. art. 7 (providing that a person may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any derogation of such law is an absolute nullity); La. C.C. art. 2030 (providing that "[a] contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral").

17 This common practice is termed commercial discounting, which is defined as "the recognized financial practice of buying an existing indebtedness for a price less than its face value. Such a transaction is essentially a sale and has never been considered within the letter or spirit of the usury law." Note, Usury-Prepayment of Promissory Notes-Rates of Unearned Interest, 40 Tul. L.Rev. 452, 456, n. 27 (1966); see Lafayette Royale Apartments, Inc. v. Meadowbrook Nat. Bank , 397 F.2d 378, 381 (5th Cir.1968) (observing that "[t]he evidence is clear and uncontradicted that the instant transaction involved the sale and purchase of a mortgage note rather than a direct loan between Meadow Brook and Lafayette Royale" and holding that "the transaction was not usurious under Louisiana law"); see also Matter of Executive Office Centers, Inc. , 96 B.R. 642, 648-49 (Bankr. E.D. La.1988) (citing Budget Plan of Baton Rouge, Inc. v. Talbert , 276 So.2d 297 (La.1973) ; Lubbock Hotel Co. v. Guaranty Bank & Trust Co. , 77 F.2d 152 (5th Cir.1935) ) (observing that "[c]ommercial loan discounting facilitates commerce by providing a means of raising capital through the sale of debt instruments at a discount" and that "[t]he Louisiana legislature, as early as 1856, recognized the desirability of this commercial practice by excepting loan discounting from certain areas of pervasive legal, economic and social import, such as usury").

18 In Westover , the court noted OCGA § 7-4-18(a) provides that "[a]ny person, company, or corporation who shall reserve, charge, or take for any loan or advance of money ... any rate of interest greater than 5 percent per month, either directly or indirectly, by way of commission for advances, discount, exchange, or the purchase of salary or wages; by notarial or other fees; or by any contract, contrivance, or device whatsoever shall be guilty of a misdemeanor." 222 Ga.App. at 526, 474 S.E.2d at 719.

19 See also Schmitt v. Matthews , 12 Wash.App. 654, 663, 531 P.2d 309, 314 (1975) (quoting Palmer v. Stevens-Norton, Inc. , 75 Wash.2d 155, 158, 449 P.2d 689, 691 (1969), which observed that "[w]hether a note is usurious depends entirely on what a borrower is required to pay for the use of the borrowed money and does not depend on what return a bona fide purchaser for value seeks to realize on his investment").

20 Vista seeks appellate review of not only the final judgment granting SBN's motion for summary judgment, but also the interlocutory ruling denying its motion for new trial. "[An] abuse of discretion standard applies regardless which ground-peremptory or discretionary-the new trial motion is based upon." Autin v. Voronkova , 15-0407, p. 4 (La. App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070 (citations omitted). For the same reasons expressed in analyzing the motion for summary judgment, we find no abuse of discretion in denying the motion for new trial.

--------


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. James PRESTON
    State of Louisiana v. James Preston
    State of Louisiana v. James Preston
    State of Louisiana v. James Preston
    NO. 2018-KA-0786 NO. 2018-KA-0787 NO. 2018-KA-0788 NO. 2018-KA-0789
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 3, 2019
   Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P. O. Box 8583, Mandeville, LA 70470-8583, James Preston, # 70678, LOUISIANA STATE PENITENTIARY, Oak - 1, Angola, LA 70712, DEFENDANT/APPELLANT/IN PROPER PERSON

(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )

Judge Daniel L. Dysart This appeal concerns the trial court's re-sentencing of the defendant, James Preston, following a hearing held pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). For the reasons that follow, we affirm Mr. Preston's sentences.

PROCEDURAL HISTORY

In 1968, then sixteen-year-old James Preston was charged by a grand jury with two counts of murder and two counts of aggravated rape. In May of 1969 and September of 1970, Mr. Preston pled guilty to those charges and was sentenced to life imprisonment at hard labor on each count.

On April 4, 2016, Mr. Preston filed a Motion to Correct Illegal Sentence in which he maintained that his sentence to life without the benefit of parole, imposed when he was a minor, was illegal based upon the United States Supreme Court decisions of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). On May 2, 2017, the trial court conducted a hearing on Mr. Preston's motion, at the conclusion of which, the trial court re-sentenced Mr. Preston to life with the benefit of parole on each of his convictions, further ordering that:

... [I]n order [for Mr. Preston] to have a meaningful opportunity to be heard, ... [his] sentences will run concurrent with each other and [he will be] given credit for time served on each of those cases from [his] original arrest date.

On December 5, 2017, Mr. Preston filed several pro se motions: a Motion to Reconsider Sentence; a Motion for Appointment of Appellate Counsel; and a Notice of Appeal. The trial court denied the motion to reconsider sentence, but granted Mr. Preston an appeal and appointed the Louisiana Appellate Project to represent Mr. Preston on appeal.

This appeal followed. Briefs were filed by both Mr. Preston's appointed counsel and Mr. Preston, pro se.

DISCUSSION

In his counseled appellate brief, Mr. Preston requests a review of the record for errors patent, noting that "[a]fter a conscientious and thorough review of the trial court record, counsel for Appellant can find no non-frivolous issue to raise on appeal and can find no ruling of the trial court that arguably supports the appeal."

Counsel for Mr. Preston has complied with the procedures outlined by Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). Likewise, his counsel's brief complies with State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241. In that brief, Mr. Preston's counsel addressed Mr. Preston's resentencing request and the trial court's ruling, indicating that "[u]nder the plain language of the United States Supreme Court in Montgomery and the Louisiana Supreme Court interpreting Montgomery , the sole determination to be made by the district court on resentencing is whether the defendant is entitled to parole eligibility." In this case, as his counsel noted, "[t]he district court resentenced Preston to concurrent life sentences with parole eligibility. The court could do no more." (Emphasis supplied).

Turning to his pro se supplemental brief, Mr. Preston makes several arguments, none of which have merit.

Mr. Preston maintains that the United States Supreme Court has made "a substantive constitutional change making life sentences without parole imposed on juveniles convicted of nonhomicide [sic] and certain homicide offenses unconstitutional." He argues that he has a "due process right to fair notice of the substantive penalty;" that is, a "right to fair notice of the severity of the penalty the State intended to impose." Mr. Preston's argument in this regard is unclear, although he concludes with the statements that "[t]he U.S. Supreme Court invalidated the penalty provisions of La. R.S. 14:30 and R.S. 14:42 making those statutes unenforceable as they pertain to [him] because what remains 'is incapable of functioning independently' " and that "[t]he invalidation of [his] life sentences without parole cannot be substituted with reformatory procedures under the guise of severability."

Contrary to Mr. Preston's contention, neither La. R.S. 14:30, nor La. R.S.14:42, have been "invalidated" by the United States Supreme Court. What those decisions mean was recently explained by this Court:

In Miller v. Alabama [,] the United States Supreme Court held that it is unconstitutional to sentence juvenile homicide offenders to life in prison without the possibility of parole. The Supreme Court's decision did not explicitly ban sentencing juvenile homicide offenders to life in prison without possibility of parole....

State v. Olivier , 17-0724, p. 4 (La. App. 4 Cir. 2/21/18), 238 So.3d 606, 609, writ denied , 18-0492 (La. 1/14/19), 261 So.3d 783. Numerous decisions have noted that "[t]he sole question to be answered in a Miller hearing is whether the defendant should have a chance for parole." State v. Calhoun , 51,337, p. 7 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 907, writ denied , 17-1081 (La. 4/27/18), 241 So.3d 307 ; State v. Jackson , 51,527 (La. App. 2 Cir. 8/9/17), 243 So.3d 1093, 1098, writ denied , 17-1540 (La. 5/25/18), 243 So.3d 565 ; State v. Comeaux , 17-682, p. 19 (La. App. 3 Cir. 2/15/18), 239 So.3d 920, 936, writ denied , 18-0428 (La. 1/14/19), 261 So.3d 783. The Louisiana Supreme Court has also quoted Montgomery for this position:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.

State ex rel. Jenkins v. State , 17-0302, p. 1 (La. 8/31/18), 252 So.3d 476 (quoting Montgomery , 136 S.Ct. at 736 ).

Furthermore, "in a Miller hearing there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the court only considers whether that mandatory sentence should include parole eligibility."(emphasis in original). State v. Sumler , 51,324, p. 9 (La. App. 2 Cir. 5/2/17), 219 So.3d 503, 509. Accordingly, in this case, the trial court, in resentencing Mr. Preston to life with the benefit of parole, met the requirements of Miller. To the extent that Mr. Preston's "fair notice" argument is that, because life with parole was not a sentencing option at the time of the original offense, he has not been afforded constitutional protection, this Court in Olivier noted that "[t]his argument has previously been rejected by a Louisiana appellate court, which reasoned that there is no deprivation of fair warning when the requirements to prove [the crime at issue] have not changed and therefore, a defendant knew his conduct would constitute criminal behavior." Olivier , 17-0724, p. 5, 238 So.3d at 610.

For non-homicide offenses, as in this case, where Mr. Preston was convicted of aggravated rape, the United States Supreme Court has indicated that life sentences without the possibility of early release are unconstitutional. See Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; State ex rel. Morgan v. State , 15-0100 (La. 10/19/16), 217 So.3d 266, 277. However, as this Court noted in State v. Jones , 13-1614, p. 2 (La. App. 4 Cir. 8/20/14), 2014 WL 4161563 (quoting State v. Shaffer , 11-1756, (La.11/23/11), 77 So.3d 939, 941 ), all that is "required under ... Graham ... [is] for the juvenile defendants' life sentences for non-homicide crimes to be amended to delete the restrictions on parole eligibility such that there is a 'meaningful opportunity to secure release based on demonstrated maturity and rehabilitation.' "). In Shaffer , for example, the Court found that the trial court's amending of the defendant's sentence so as to delete the restriction on parole eligibility met the requirements of Graham. The Shaffer Court concluded:

We therefore amend the sentence of relator [defendant] to delete the restriction on parole eligibility... We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole "only for the best interest of society, not as an award of clemency." La. R.S. 15:574.4.1(B). Access to the Board's consideration will satisfy the mandate of Graham.

Shaffer , 11-1756, p. 4 (La. 11/23/11), 77 So.3d 939, 942-43. See also , State v. Brown , 51,418, p. 10 (La. App. 2 Cir. 6/21/17) --- So.3d ----, ----, 2017 WL 2665128, writ denied , 17-1287 (La. 4/27/18), 241 So.3d 306 (quoting Miller , 132 S.Ct. at 2469 )("where parole eligibility is permitted, Miller [does] not impose a requirement that a defendant be allowed to present mitigating factors. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a life sentence without parole eligibility.").

In the instant matter, therefore, the trial court's re-sentencing Mr. Preston to life with the benefit of parole met the requirements of Shaffer.

Mr. Preston also argues that his sentence violates the ex post facto laws because Miller was decided after his conviction and original sentencing. While the "U.S. Const. Art. I, § 10 and La. Const. art. I, § 23 prohibit ex post facto application of criminal law by the State," our jurisprudence reflects no such violation by "the application of La.C.Cr.P. art. 871 and La. R.S. 15:574.4(E-G)." State v. Williams , 18-0103, p. 5 (La. App. 4 Cir. 5/16/18), 247 So.3d 129, 132. There, the Court observed:

In State v. Williams , 2015-0866, pp. 15-16 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, 252, this Court held that applying La. C.Cr.P. art. 878.1 and La. R.S. 15:274.4(E) to resentence a juvenile convicted of a 2006 second degree murder pursuant to Miller did not violate the ex post facto clause. This Court reasoned that the Louisiana Supreme Court, in State v. Jones , 2013-2039 (La. 2/28/14), 134 So.3d 1164, ordered implementation of Miller through the application of La. C.Cr.P. art. 878.1 and La. R.S. 15:547.4(E). Williams , 2015-0866, pp. 15-16, 186 So.3d at 252 (citing State v. Graham , 2014-1769, p. 8 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 278 ).
In State v. Shaw , 51, 325, p. 10 (La. App. 2 Cir. 5/17/17), 223 So.3d 607, 613, the Second Circuit, citing this Court's decision in Williams , also held that there is no ex post facto violation from the application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E) in resentencing a defendant pursuant to Miller. Further, the Second Circuit stated that application of those statutes does "not subject a defendant to a harsher sentence or a longer period of incarceration."

Id. , pp. 4-5, 247 So.3d at 132. See also , State v. Graham , 14-1769, p. 8 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 278 ("any consideration of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E) in resentencing the defendant, would not have been, contrary to the defendant's assertion, an ex post facto violation"). Accordingly, we find no ex post facto violation in this case by the trial court's resentencing Mr. Preston to life with the benefit of parole.

Finally, Mr. Preston argues that his resentence constitutes cruel, unusual and excessive punishment. This contention has been addressed and rejected. See, e.g., State v. Williams, 15-0866, p. 20, n.4, 186 So.3d at 255 ("this Circuit and others have found that life sentences without parole were not excessive for seventeen and fifteen year old defendants."); State v. Graham , 14-1769, p. 14 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 282, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583 ("a life sentence without parole under Miller is not excessive and, therefore, not unconstitutional.").

Again, "the holding of Miller was that sentencing schemes which require mandatory life without parole sentences for juvenile homicide defendants violate the Eight Amendment's prohibition against cruel and unusual punishment." State v. Plater , 51,338, p. 6 (La. App. 2 Cir. 5/17/17), 222 So.3d 897, 901, writ denied , 17-1021 (La. 5/11/18), 241 So.3d 1009, and writ denied , 17-1190 (La. 5/11/18), 241 So.3d 1013 ; See also , State v. Brown , 12-0872, p. 1 (La. 5/7/13), 118 So.3d 332, 332 (citing Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) )("the Eighth Amendment's prohibition of cruel and unusual punishment forbids the imposition of life in prison without parole for juveniles committing non-homicide crimes, applies only to sentences of life in prison without parole ....") (emphasis added).

Here, Mr. Preston was not sentenced to life without parole; the trial court properly resentenced him to life with parole on all counts, including the homicide and non-homicide convictions.

Motion to Withdraw

As noted, counsel for Mr. Preston has filed a brief stating he could find no errors on appeal and found no meritorious grounds for appeal. This Court has likewise performed an independent, thorough review of the record before us and we find no patent errors in Mr. Preston's record that require this court's action. Accordingly, appellate counsel's motion to withdraw as counsel of record for Mr. Preston is hereby granted.

CONCLUSION

For the reasons set forth herein, we hereby affirm Mr. Preston's sentences and grant counsel's motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

LOBRANO, J., CONCURS IN THE RESULT

      The record reflects that many records pertaining to Mr. Preston and pre-dating 2016 were destroyed as a result of Hurricane Katrina.

      The record reflects various terms of these sentences; some of the sentences were ordered to be served consecutively, while others were ordered to be served concurrently. The sentencing documents from 1968 and 1970 are somewhat unclear, although the record reflects that the sentence for one of the murder counts was ordered to run consecutively with an aggravated rape count. In a January 5, 2018 ruling on an application for post-conviction relief, the trial court noted that "[e]ach of [Mr. Preston's] four life sentences were to be run concurrently to each other and all other sentences." At the hearing on Mr. Preston's motion to correct an illegal sentence, counsel for Mr. Preston advised the trial court that he had been sentenced to "multiple consecutive life sentences."

      La. C.Cr.P. art. 878.1 governs hearings to determine the parole eligibility for certain juvenile offenders, while La. R.S. 15:574.4 governs parole eligibility for juvenile offenders.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    STATE of Louisiana v. Dan C. PITTMAN
    NO. 2018-KA-0821
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 3, 2019
    LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY ORLEANS PARISH, SCOTT G. VINCENT, ASSISSANT DISTRICT ATTORNEY, IRENA ZAJICKOVA, ASSISTANT DISTRICT ATTORNEY, 619 S. White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE
    CHRISTOPHER A. ABERLE, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, Louisiana 70470-8583, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins )
   JAMES F. MCKAY III, CHIEF JUDGE

STATEMENT OF CASE

The defendant, Dan Pittman, appeals the judgment of the district court, finding him guilty of ten counts of possession of pornography involving juveniles in violation of La. R.S. 14:81.1. For the reasons that follow, we affirm his conviction and sentence.

On February 5, 2016, the State filed a bill of information charging defendant, Dan C. Pittman, with eighty-four counts of illegal possession of pornography involving juveniles under the age of thirteen when the offender is seventeen years of age or older, violations of La. R.S. 14:81.1(E)(5)(a). On February 23, 2016, the defendant appeared for arraignment and entered a plea of not guilty on all counts.

On March 14, 2016, the defendant filed an omnibus motion for inter alia, suppression of statements and for a preliminary examination. The court held hearings on defendant's motions on April 20, 2017, and May 26, 2017, and denied the defendant's suppression motion and found probable cause on only ten of the charges. The defendant waived his right to a trial by jury and elected to have a judge trial on June 12, 2017. On February 5, 2018, the State tried the defendant on the first twenty counts contained in the bill of information. The same day, the court found defendant guilty on ten counts and not guilty on ten counts.

On March 6, 2018, the State entered a nolle prosequi on each of the sixty-four remaining charges contained in the bill of information. On the same date, the defendant filed motions for a new trial and post-verdict judgment of acquittal, which the court denied. The defendant also filed a motion for a downward departure from the statutory minimum sentence, which pursuant to La. R.S.14:81.1 is ten to forty years, arguing that this defendant was exceptional. After reviewing the transcript of the March 6, 2018 sentencing hearing, although the matter was argued, the court failed to grant or deny the motion on the record. Instead, the court proceeded to sentence the defendant to thirteen years on each count of the ten counts for which the defendant was found guilty to run concurrently. By immediately sentencing the defendant, the court implicitly denied the defendant's motion for downward departure from the statutory minimum.

Immediately after sentencing, counsel for the defendant expressed an objection; the basis for this objection is unclear. Despite entering this contemporaneous objection, the defendant failed to seek review in this appeal of his sentence and the denial of his motion for downward departure from minimum sentence. Therefore, although the defendant arguably presented a plausible argument for a downward departure from the statutory minimum sentence, and we consider his sentence to be harsh under the facts of this case, we are unable to address those issues on appeal.

STATEMENT OF FACT

Louis Ratcliff testified that he was employed as "an investigator with the Louisiana Attorney General's Office, Cyber Crime Unit" in March of 2015, and assigned to investigate child exploitation and human trafficking. One such investigation led to the arrest of the defendant for "possession/uploading child pornographic images to the internet, a Twitter account." Detective Ratcliff further testified that Twitter had reported to the National Center for Missing and Exploited Children ("NCMEC") that one of its users had uploaded child pornography and that the internet protocol ("IP") address was determined to have come from Louisiana. The complaint contained approximately eighty images, discovered in multiple folders, of children aged eight to twelve posing nude and performing sexual acts. The folders also contained images of bestiality and animated representations of child pornography.

In response to a subpoena, AT & T was able to determine from the Twitter user's login information and IP addresses associated with the uploads that the account belonged to the defendant. Detective Ratcliff testified that he applied for a search warrant and began surveilling defendant's home located on Arts Street in New Orleans. On September 9, 2015, Detective Ratcliff executed the search warrant accompanied by several federal agents and Louisiana police officers. He observed two individuals sitting on the front porch and learned that they were the defendant's aunt and uncle and that they owned the home. They told the officers that the defendant was at the Delgado college campus in Gretna, and they directed the officers to the defendant's bedroom. Once the defendant returned to the residence (accompanied by police officers), he signed a waiver of rights form and agreed to speak to the investigators.

On cross-examination, Detective Ratcliff testified that the defendant was cooperative with the investigation and provided his passcodes to a "Red Eagle cell phone." The defendant initially told the investigators during the search that he was not aware of any child pornography located on any of his electronic equipment, but stated that he downloaded several large "zip files" containing hundreds of various pornographic images which included adult, animal, and "hentai" pornography . The defendant admitted that he observed several child pornographic photos among the various images but he explained to the officers that he began to delete them if and when he came across them. He subsequently admitted, however, that, at some point, he stopped deleting the child pornography.

Detective Ratcliff testified that he did not perform a search of the defendant's computer to determine what, if any, specific search terms the defendant used when searching for internet pornography. He also admitted that a search of two of the defendant's laptop computers and two external hard drives, as well as a box of CDs and DVDs, revealed no child pornographic files. The only child pornographic images recovered during the search were located on the defendant's "Evo" cell phone. On re-direct examination, Detective Ratcliff confirmed that the defendant had admitted he was aware that he was in possession of several images containing child pornography, that he knew it was illegal to possess them, and that he chose not to delete them.

Thomas Ferguson testified that he was employed with the Louisiana Attorney General's Office in September and October of 2015, and was stipulated as an expert in computer forensics. Mr. Ferguson testified that he analyzed the defendant's laptops, hard drives and cell phones, and discovered twenty images of what he believed was "pornography involving juveniles" on one of the defendant's cell phones. In his report, Mr. Ferguson indicated that he discovered images number one, and numbers three through twenty on a Secured Digital ("SD") memory card (that had been inside the cell phone) in a folder labeled "pictures," under a sub-heading labeled "Twitter." He located image number two on the same SD card in a folder labeled "downloads." He further testified that files twelve and eighteen were photographs of the same child, who had been positively identified as a NCMEC victim, and had been flagged by Twitter in their initial complaint. Each of the illegal files appeared to have been created on separate dates ranging from January to February of 2015.

Mr. Ferguson testified that he performed an analysis of the Twitter account associated with defendant's IP address and user login information and discovered a conversation with another Twitter user which discussed shared "interests" and exchanged photographs. Among the photos the defendant contributed were images number nineteen and one that had been flagged by Twitter as an NCMEC victim under the age of thirteen. In exchange, he received a photo of a nude "young male." Mr. Ferguson also testified that, according to Twitter's records, the Twitter account associated with the defendant's IP address had been opened on December 31, 2014, which coincided with the earliest dated pornographic images discovered in the "Twitter" folder on the SD memory card discovered in the defendant's cell phone.

Mr. Ferguson testified that he sent the twenty images of suspected child pornography discovered on the defendant's cell phone to NCMEC for identification purposes. NCMEC was able to positively identify victims under the age of thirteen in ten of the recovered images. Mr. Ferguson stated it was his expert opinion that, although the identities of the others in the remaining ten photographs were unknown, he was confident that they were also of children under the age of thirteen. According to Mr. Ferguson, a remote user could have potentially hacked into a defendant's twitter account; however, it would have been unlikely that a remote user would have the same IP address as the defendant when utilizing the account, nor would a remote user have access to the photographs contained on the defendant's personal cell phone to upload them into the account.

On cross-examination, Mr. Ferguson admitted that the defendant's two hard drives, two laptops and box of CDs and DVDs which he examined did not contain any images of suspected child pornography, and a review of the defendant's internet history revealed no specific searches for child pornography. He also stated that the SD memory card that contained the twenty images of children also contained over 500 pornographic images that did not involve children. On redirect examination, Mr. Ferguson testified his analysis of the defendant's other electronic equipment (hard drives and laptops) appeared to contain many pornographic photographs involving minors, but he had not flagged them because they did not appear to Mr. Ferguson to have been under the age of thirteen. He also had not flagged the animated representations of child pornography.

In the defendant's case-in-chief, the defendant testified on his own behalf. He stated that he was taking welding classes at Delgado when the police arrested him on September 9, 2015. He denied that he ever "intentionally...purposefully...[or] deliberately" possessed any child pornography. He admitted that he did search for bestiality and animated pornography he called "hantai," but insisted he only searched for animated representations of adults, not children. The defendant testified that he would search for "anime," "bukkake," and "hentai," and would download large zip files containing thousands of pornographic images, but did not intend to possess the images of child pornography also contained therein. He explained that when he browsed through the zip folders, the files were labeled numerically and he could not see the images unless he opened each file individually.

The defendant recalled telling the investigating officers that he was aware that he had possessed images of child pornography, but that he had been deleting them because he "did not want them on [his] device" or "be associated with that." He further explained that he would manually transfer the downloaded images from his computer to his cell phone, but that somehow he apparently carelessly/accidentally included the child pornography with the manual transfers of the other files, notwithstanding his claimed belief that he had successfully deleted all of the files depicting child pornography.

The defendant testified that he had created two Twitter accounts, although he guessed that the reason one had been blocked was because he uploaded bestiality. He denied that he had ever engaged in conversations with other Twitter users, and denied having knowledge of the private exchange of child pornography with another Twitter user that the State had earlier alleged.

On cross-examination, the defendant acknowledged that he possessed animated images of children (depicted as young as five) being "gang-raped," but explained that nobody had been harmed because they were merely drawings. The defendant also claimed that his stepson, who was apparently incarcerated in Pennsylvania at the time the child pornography was uploaded, had access to his Twitter account. The defendant acknowledged that the pornographic images containing human children had been downloaded on different dates: that they were not all included in one large zip file. The defendant further admitted that he had, in fact, uploaded two large files onto Twitter that contained "zoo porn," and agreed that the private messages sent from his account described the sender as a thirty-eight-year-old black man, which the defendant evidently was at the time. The defendant also could not explain how the same (illegal) images of children that investigators discovered on a memory card in his cell phone were also discovered uploaded onto his personal Twitter account, as he maintained that he had not been the sender of the flagged images.

On redirect examination, the defendant testified that he told the investigators that he stopped deleting the child pornographic images because there were too many files in the zip folders to scan thoroughly, and he "felt like [he] had deleted the majority of stuff that was inappropriate."

ERRORS PATENT

Although it does not appear in the minutes or the docket master, the transcript reflects that the defendant waived the sentencing delays after filing motions for a new trial and a post-verdict judgment of acquittal.

THE STATE: I would ask that we put on the record that defense waived delays for the sentencing.
COURT: I was about to say that.
DEFENSE: Yes, Your Honor, I would waive delays or did waive delays for sentencing when we began the hearing.
COURT: Sentencing delay is waived.

A review of the record reveals that the sentence the court imposed was illegally lenient. The court sentenced the defendant to serve thirteen years imprisonment at hard labor on each of the ten counts for which he was convicted with sentences to run concurrently, but omitted the requirement that the sentence "be served without benefit of parole, probation, or suspension of sentence." La. R.S. 14:81.1(E)(5)(a). Nevertheless,

This Court has recognized that "paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court." State v. Wyatt, 2011-0219, p. 20 (La. App. 4 Cir. 12/22/11), 83 So.3d 131, 143 (citing State v. Williams, 20001725 (La. 11/28/01), 800 So.2d 790 ). Accordingly, "this Court need take no action to correct the trial court's failure to specify that the defendant's sentences be served without benefit of parole, probation or suspension of sentence" because it is statutorily effected. State v. Wyatt, 2011-0219, p. 20, 83 So.3d at 143 (citing La. R.S. 15:301.1(A) ).

State v. Dominick, 2013-0270, pp. 3-4 (La. App. 4 Cir. 1/30/14), 133 So.3d 250, 252. Thus, this Court is not required to take any action as this error is statutorily self-correcting.

DISCUSSION

ASSIGNMENT OF ERROR

The defendant asserts that "the State failed to associate any counts with any specific conduct, either in the bill of information or at trial," and that "the court failed to specify on which counts it found [defendant] guilty and on which it acquitted." Because the State tried the defendant on only twenty of the eighty-four counts with which he was initially charged, and because the court's verdict was simply, "Guilty as charged on ten counts. Not guilty on the remaining counts," it is "impossible" to know for what conduct the defendant is being punished and for what conduct he was acquitted. As such, the defendant argues, the verdict violates due process and cannot stand, and the defendant cannot be tried again on the chance that he may be convicted for conduct of which he was already acquitted.

In support of the defendant's assertions, he cites only one case: People v. Archer, 238 A.D.2d 183, 656 N.Y.S.2d 237 (N.Y. App. Div. 1997), in which the defendant was tried on, inter alia , three counts of criminal possession of a weapon in the third degree; but the jury convicted on only one count, and acquitted the defendant on the other two. The Court reversed the defendant's conviction, holding that, because the charges "in the indictment were identical and did not specify which gun, of the three recovered by the police at or shortly after the defendant's arrest, pertained to which count," and because the jury instructions "failed to assign a specific gun to a specific count," notwithstanding the State's request for the specific instruction, it was "impossible to conclude from [the] verdict which of the three guns defendant was convicted of possessing, and it [could not] be determined whether all 12 members of the jury voted to convict him of possessing the same gun." The Court then dismissed the weapons charges, "since a remand could [have led] to retrying defendant on one of the two charges for which he was previously acquitted." Id., at 183-84, 656 N.Y.S.2d at 238-39.

The State in this case, argues that the defendant failed to preserve the issue for review, as he lodged no objection at any time following the verdict or imposition of sentence, and did not assert the issue in either his motion for a new trial or for a post-verdict judgment of acquittal.

La. C.Cr.P. art. 841 provides:

A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
B. The requirement of an objection shall not apply to the court's ruling on any written motion.

A contemporaneous objection is required for two purposes: (1) to put the trial court on notice of the alleged irregularity or error, so that the trial judge can cure the error, and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection. State v. Lanclos, 2007-0082, p. 6 (La. 4/8/08), 980 So.2d 643, 648 ; State v. Le, 2017-0164, p. 18 (La. App. 4 Cir. 4/11/18), 243 So.3d 637, 656.

Moreover, the defendant also chose not to file a motion for a bill of particulars which would have compelled the State to set forth "more specifically the nature and cause of the charges against defendant:" information defendant now complains is "impossible" to determine. La. C.Cr.P. art. 484. If the defendant believed the bill of information was defective, he could have asked the court to order the State to amend the information, or, after trial began, could have moved for a mistrial under La. C.Cr.P. art. 487.

"The time for testing the sufficiency of an indictment is before trial by way of a motion to quash or an application for a bill of particulars." State v. Reel, 10-1737, p. 9 (La. App. 4 Cir. 10/3/12), 126 So.3d 506, 514 (citing State v. Gainey, 376 So.2d 1240, 1243 (La. 1979). It is well-settled in Louisiana that "[a] post-verdict attack on the sufficiency of an indictment does not provide grounds for setting aside a conviction unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense." State v. Cavazos, 610 So.2d 127, 128 (La. 1992) ; see State v. Phillips, 10-0582, p. 10 (La. App. 4 Cir. 2/17/11), 61 So.3d 130, 137 ; State v. Page, 08-531, p. 16 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, 452 ; State v. Johnson, 07-1040, p. 7 (La. App. 4 Cir. 9/10/08), 993 So.2d 326, 330.

State v. Brazell, 2017-0032, p. 12 (La. App. 4 Cir. 4/18/18), 245 So.3d 15, 28.

In the instant case, the bill of information charged the defendant with eighty-four identical counts which stated that between March 31, 2015 and September 9, 2015, the defendant violated "[La.] R.S. 14:81.1, in that the said Dan C. Pittman possessed various photographs, films, video tapes, or the visual reproductions of sexual performances where victim is under the age of thirteen and Dan C. Pittman is seventeen or older." At the start of trial, the State indicated that it was only "proceeding on counts one through twenty," and confirmed it had discussed the charges with the defendant. It does not appear from the record that the defendant, at any time before, during, or after trial, informed the district court that he was unaware of the conduct for which he was being charged or tried, nor did he indicate at any time to the district court that he could not determine the counts for which he had been convicted or acquitted, notwithstanding his numerous opportunities to have done so.

Although the defendant now complains of the alleged error on appeal, a thorough review of the entire record reveals that the defendant may have chosen not to bring this issue to the trial court's attention at any time because he was not, in fact, unaware of the conduct for which he was being charged or tried, and that it was not, in fact, impossible to determine exactly what conduct related to the charges for which the defendant was convicted.

At the hearing on the defendant's motion to suppress his statements, Detective Ratcliff testified that he discovered a cell phone during the search of the defendant's residence that contained ten pornographic images of female children aged eight to twelve, which defense counsel confirmed several times during cross-examination:

DEFENSE: And so it would be your understanding that the ten images that remained on [defendant's] cell phone, were those ten images that he did not [delete]?
WITNESS: Correct.
* * * * * *
DEFENSE: Okay. And so I know we were having conversations earlier about the number of counts that [defendant] is charged with. Today, you are here testifying specifically about ten images that you recovered from [defendant's] cell phone- (State's objection is overruled)- So your testimony today is about the ten images that you found on [defendant's] cell phone?
WITNESS: Correct.
DEFENSE: And you charged- you only wrote an affidavit, or maybe charged, as an officer, [defendant] with only ten counts, not eighty? (State's objection is overruled)
WITNESS: Yes.

Moreover, at the defendant's subsequent probable cause hearing, defense counsel summarized his appreciation of the conduct underlying the counts charged as follows:

Your Honor, if you recall, when Investigator Ratcliff testified at the motion hearing on April 20, he identified that the images recovered-he recovered about ten images from [defendant's] cell phone. However, with respect to the other, I believe, seventy-four images, they were originally uploaded to a Twitter account, a Twitter file. Investigator Ratcliff was unable to confirm, or actually identify, that those images were uploaded by an IP address belonging to [defendant]. Given the fact that the only representation of images in [defendant's] possession were the ones that were actually discovered on the date the search warrant was executed, we ask you to find no probable cause for the Twitter images. And we would like to focus your attention to the images on the cell phone. Specifically, though the information given by Investigator Ratcliff, [defendant] articulated he downloaded a massive file including hundreds of images. Amongst those images, Investigator Ratcliff said there were about ten that were inappropriate and potentially illegal in nature...It became clear through the testimony that amongst the hundreds of images that [defendant] downloaded, only about ten of them were actually in the nature that's alleged today. For those reasons, Your Honor, we ask you to find no probable cause in all counts for [defendant].

At the start of trial, the State indicated that it was proceeding on counts one through twenty and that it had discussed the charges with defense counsel. During its opening statement, the State asserted that a computer forensic expert discovered "twenty photographs of children under the age of thirteen performing sexual acts with adult males." The State further explained,

that ten of the children out of the twenty are, in fact, known victims that were identified by the NCMEC that are confirmed to be under the age of thirteen in the photographs. The remaining ten photographs, Your Honor, I would submit, that by looking at them, you can use your common sense and know that these were very young children. There is not a question of if they are at the brink of thirteen or fourteen; they were very young, five, six years old. And you can see that via looking at the images.

In his motions for a new trial and post-verdict judgment of acquittal, the defendant asserted only that there was insufficient evidence to support the conviction and that the State impermissibly attacked the defendant's character by referring to his crimes as "sick, vile, and despicable." During his oral argument for a downward departure from the statutory minimum sentence at the sentencing hearing, the defendant asserted that he "did not possess an overly voluminous amount of images that are articulated to be illegal in 14:81.1," and differentiated the illegal material from the other images also discovered in his possession. He also asserted that the defendant "has become aware of what is appropriate and what isn't appropriate," because "this trial...has been one that has been informative for him as well as provided him an understanding of what type of behavior is and is not allowed."

In the State's counter-argument, it specified the conduct for which the defendant had been convicted, stating, "The legislature had already contemplated that the sentence is more when a child is under the age of thirteen years old, and Your Honor found that ten of those counts, the ten children who were under the age of thirteen when you rendered your verdict in this case...These were kids in the five-to-seven-year range that we identified through NCMEC."

All parties including the court understood that the ten counts for which the defendant was convicted were for the possession of the ten photographs discovered on his cell phone (that he admitted he knew he possessed) of the children specifically identified by the NCMEC of being under thirteen years old. The ten photos were introduced separately and the NCMEC report confirmed each photo was of a child under the age of thirteen. Thus, this case is distinguishable from Archer in that it is determinable from the record exactly which ten photographs defendant was convicted of possessing, notwithstanding the more general statutory language contained in the first twenty counts in the bill of information. The record supports that the defendant was acquitted of the ten counts charging him with possessing the remaining ten photographs Mr. Ferguson flagged on his cell phone that were NOT identified by the NCMEC as children under the age of thirteen. Consequently, the defendant's complaint that it is "impossible to know what [defendant] has been convicted of," is unsupported by the record and is, therefore, meritless.

CONCLUSION

For the above reasons, the trial court's verdict was not vague and ambiguous such that it was impossible to determine what conduct and evidence the court found proved the defendant's guilt on the ten counts for which he was convicted, and the lack of evidence underlying the remaining counts for which he was acquitted. Accordingly, we affirm the defendant's convictions and sentences.

AFFIRMED

      Although the court did not specify on exactly which of the counts it found the defendant guilty and not guilty, the docket master and the minute entries reflect that the court found the defendant not guilty on counts one through ten and guilty on counts eleven through twenty.

      At the time of trial, Louis Ratcliff was employed as a detective with the St. Charles Parish Sheriff's Office. He will be referred to as Detective Ratcliff heretofore.

      The Oxford Dictionary online defines hentai as a subgenre of the Japanese genre of manga and anime, characterized by overtly sexualized characters and sexually explicit images and plots.

      Mr. Ferguson testified that image number two was the only file which did not contain a date stamp.

      Mr. Ferguson explained that the conversation was posted by "direct message," (a private conversation between two users) as opposed to a "tweet." (a broadcast in which anyone who follows the account can see).

      Supreme Court, Appellate Division, First Division, New York

      The Archer court faced the same issue, however it nevertheless chose to consider the error.


author: Judge Terri F. Love

text:
    STATE of Louisiana v. Donovan ALEXANDER
    NO. 2019-K-0036
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 3, 2019
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR RELATOR, STATE OF LOUISIANA
    John T. Fuller, Marcus O. DeLarge, John T. Fuller & Assoc, LLC, 909 Poydras Street, Suite 2270, New Orleans, Louisiana 70112, COUNSEL FOR RESPONDENT/DEFENDANT, DONOVAN ALEXANDER
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Dale N. Atkins )
   Judge Terri F. Love

The State of Louisiana seeks review of the trial court's December 6, 2018 ruling granting defendant's motion to suppress statement. The trial court found that questioning of defendant should have ceased once his cousin, an attorney, informed the police that he was there to serve as defendant's counsel.

We find that the right to counsel is invoked by a defendant. Defendant freely and voluntarily signed the waiver of rights form before giving his statement. Therefore, we find that the trial court erred by granting the motion to suppress statement. We grant the writ, reverse the trial court's ruling, and remand for further proceedings.

PROCEDURAL HISTORY

Defendant, Donovan Alexander, was charged by bill of information with possession with intent to distribute heroin, a violation of La. R.S. 40:966(A)(1) and illegally carrying a weapon with a controlled dangerous substance, a violation of La. R.S. 14:95(E). Mr. Alexander entered a plea of not guilty and filed a motion to suppress evidence, statement, and identification along with a request for a preliminary hearing. The trial court conducted a hearing on Mr. Alexander's motion to suppress statement and preliminary hearing. Following testimony and argument by counsel, the trial court denied Mr. Alexander's motion to suppress evidence and granted his motion to suppress statement. The State's application for supervisory review followed.

FACTUAL BACKGROUND AND TESTIMONY

Andrew Roccaforte, a New Orleans Police Officer assigned to the Task Force Office as DEA, testified he began investigating Mr. Alexander in June of 2016, when he received information from a confidential informant that Mr. Alexander was distributing heroin in the New Orleans metro area. The CI informed Officer Roccaforte that Mr. Alexander stored heroin and firearms at 8243 Curran in New Orleans, but lived in Kenner on Vintage Drive. Extensive surveillance of Mr. Alexander was conducted.

On June 21, 2016, the task force set up surveillance of the Vintage Drive location. The task force acquired consent to search that location. Two pounds of marijuana, a firearm, and Carisoprodol pills were seized from the Vintage Drive location, and Mr. Alexander was arrested.

Following Mr. Alexander's arrest, but on the same day, Officer Roccaforte and a team of agents proceeded to 8243 Curran Boulevard, a suspected "stash" house for Mr. Alexander. Dontrell Minor, a female friend of Mr. Alexander, opened the door and was extremely cooperative. Ms. Minor consented to the search of the residence. Ms. Minor admitted that Mr. Alexander stored narcotics and a firearm in the bottom dresser drawer in her bedroom. When the drawer was removed, Officer Roccaforte recovered a loaded firearm and an STP oil can with a false bottom and a secret compartment. When the STP can's false bottom was removed, Officer Roccaforte recovered about eight grams of heroin. Packaging material and a digital scale were also recovered from the bedroom. As a result, an arrest warrant was prepared two days later for possession with intent to distribute heroin and possession of a firearm with a controlled dangerous substance for Mr. Alexander from Orleans Parish.

Special Agent Joseph Blackledge, DEA, testified that he was the agent who arrested Mr. Alexander. Mr. Alexander was informed of his rights in accordance with Miranda following his arrest and once again before he was interviewed. Mr. Alexander signed a form indicating he waived his rights and gave a statement. Agent Blackledge summarized Mr. Alexander's statement as follows:

As he was detained at Kenner Police Headquarters they had some other investigators that did a search of the Curran residence. And during the recorded statement I told Mr. Alexander that that house was searched and they recovered some heroin and a firearm I believe. At that time he said it was his. And that he didn't want the girl that lived there to be blamed for anything.

In response to defense counsel's questions, Agent Blackledge stated he did not recall anyone by the name of Dwayne Burrell coming to the Kenner Police Department. Agent Blackledge stated if he had known Mr. Alexander's lawyer wanted to be present, he would have stopped the interview and accommodated the lawyer.

Following the testimony of Agent Blackledge, the trial court continued the hearing for the testimony of Attorney Dwayne Burrell. Attorney Burrell testified that he is Mr. Alexander's cousin and an attorney. Attorney Burrell received a call from Mr. Alexander's girlfriend informing him that the police were at Mr. Alexander's apartment. Attorney Burrell proceeded to the apartment in Kenner. Upon arrival, Attorney Burrell spoke with Mr. Alexander's girlfriend. The police were at the apartment searching the residence. Attorney Burrell attempted to stop the search, but the police informed him that drugs were found on the premises and Mr. Alexander was detained. Attorney Burrell informed an officer he wanted to speak with Mr. Alexander and that Mr. Alexander was not going to make any statements. The officers informed Attorney Burrell that Mr. Alexander was going to be booked and they were going to bring him to Gretna. Attorney Burrell was told he could speak with Mr. Alexander in Gretna. Attorney Burrell could not identify the officer he spoke with and stated there were several different officers from different agencies present. Attorney Burrell was not told that the officers were going to interview Mr. Alexander in Kenner.

When questioned by the State, Attorney Burrell stated he had represented Mr. Alexander in previous civil matters, but not criminal, although he was currently representing Mr. Alexander in a criminal matter in Jefferson Parish. When asked whether Mr. Alexander retained him to defend him in the matter sub judice , Attorney Burrell said he is Mr. Alexander's cousin and is always his attorney.

The trial court found probable cause, denied the motion to suppress evidence, and granted the motion to suppress the statement. With regard to the statement, the trial court found:

The officers specifically ... said he knew nothing about the defendant's cousin who is an attorney appearing at headquarters on his behalf. He said he would have allowed the attorney to come into the interview room had he known he was there.
Ultimately, the Court has to consider the State being treated as a single entity and any of the officers who were being-who were involved and who were present as being alerted that there shouldn't be any questioning of this gentleman.

MOTION TO SUPPRESS

The State contends that the trial court erred in granting Mr. Alexander's motion to suppress the statement because an attorney was not denied access to Mr. Alexander prior to his providing a statement.

It is well established that that before the State is allowed to introduce a confession into evidence, "it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises." La. R.S. 15:451. See also La. C.Cr.P. art. 703(D) ; State v. Holmes , 06-2988 (La. 12/2/08), 5 So.3d 42 ; State v. Simmons , 443 So.2d 512, 515 (La. 1983). The Louisiana Supreme Court described the process of determining whether a statement was freely and voluntarily given as follows:

If a statement is a product of custodial interrogation, the State must make a threefold showing: first, that the person was advised before questioning of his right to remain silent; second, that the person was told that any statement he makes may be used against him; and, third that the person was counseled that he has a right to an attorney, either retained or appointed. Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). When claims of police misconduct are raised, the State must specifically rebut the allegations. State v. Vessell , 450 So.2d 938, 942-943 (La.1984). A trial court's finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless the evidence fails to support the trial court's determination. State v. Benoit , 440 So.2d 129, 131 (La.1983). Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence. Vessell , 450 So.2d at 943. When deciding whether a statement is knowing and voluntary, a court considers the totality of circumstances under which it is made, and any inducement is merely one factor in the analysis. State v. Lavalais , 685 So.2d at 1053 ; State v. Lewis , 539 So.2d 1199, 1205 (La.1989).

Holmes , 06-2988, p. 34, 5 So.3d at 67-68.

When faced with a similar issue as the case sub judice , the United States Supreme Court holding in Moran v. Burbine , 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1985), found defendant had validly waived her right to counsel. In Burbine , the U.S. Supreme Court summarized the issue as follows:

After being informed of his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and after executing a series of written waivers, respondent confessed to the murder of a young woman. At no point during the course of the interrogation, which occurred prior to arraignment, did he request an attorney. While he was in police custody, his sister attempted to retain a lawyer to represent him. The attorney telephoned the police station and received assurances that respondent would not be questioned further until the next day. In fact, the interrogation session that yielded the inculpatory statements began later that evening. The question presented is whether either the conduct of the police or respondent's ignorance of the attorney's efforts to reach him taints the validity of the waivers and therefore requires exclusion of the confessions.

Id. at 415-16 (emphasis added). The U.S. Supreme Court analyzed the requirements of Miranda and stated:

Moreover, problems of clarity to one side, reading Miranda to require the police in each instance to inform a suspect of an attorney's efforts to reach him would work a substantial and, we think, inappropriate shift in the subtle balance struck in that decision. Custodial interrogations implicate two competing concerns. On the one hand, "the need for police questioning as a tool for effective enforcement of criminal laws" cannot be doubted. Schneckloth v. Bustamonte , 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). Admissions of guilt are more than merely "desirable," UnitedStates v. Washington , 431 U.S. at 186, 97 S.Ct. at 1818 ; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law. On the other hand, the Court has recognized that the interrogation process is "inherently coercive" and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion. New York v. Quarles , supra, 467 U.S. at 656, 104 S.Ct. at 2631. Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation. Declining to adopt the more extreme position that the actual presence of a lawyer was necessary to dispel the coercion inherent in custodial interrogation, see Brief for American Civil Liberties Union as Amicus Curiae in Miranda v. Arizona , O.T. 1965, No. 759, pp. 22-31, the Court found that the suspect's Fifth Amendment rights could be adequately protected by less intrusive means. Police questioning, often an essential part of the investigatory process, could continue in its traditional form, the Court held, but only if the suspect clearly understood that, at any time, he could bring the proceeding to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators.
The position urged by respondent would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney's efforts to contact him would contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society's legitimate and substantial interest in securing admissions of guilt. Indeed, the very premise of the Court of Appeals was not that awareness of Ms. Munson's phone call would have dissipated the coercion of the interrogation room, but that it might have convinced respondent not to speak at all. [Burbine v. Moran ] 753 F.2d [178] at 185 [ (1985) ]. Because neither the letter nor purposes of Miranda require this additional handicap on otherwise permissible investigatory efforts, we are unwilling to expand the Miranda rules to require the police to keep the suspect abreast of the status of his legal representation .

Burbine , 475 U.S. 412, 426-27, 106 S.Ct. 1135, 1143-44, 89 L.Ed.2d 410 (1986) (emphasis added).

Similarly, in State v. French , 11-576, pp. 4-5 (La. App. 5 Cir. 11/29/11), 79 So.3d 1155, 1158, the Fifth Circuit Court of Appeal stated:

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. State v. Loeb , 09-341, p. 11 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 924-25, writ denied , 10-681 (La. 10/15/10), 45 So.3d 1110, (citing La. R.S. 15:451 ); State v. Blank , 04-0204, pp. 9-10 (La. 4/11/07), 955 So.2d 90, 103, cert. denied , 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).
The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Loeb , 09-341 at 11-12, 34 So.3d at 925. Testimony of the interviewing police officer alone may be sufficient proof that a defendant's statements were freely and voluntarily given. State v. Mackens , 35,350, p. 13 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied , 02-0413 (La. 1/24/03), 836 So.2d 37.

In French , the defendant contended that his father's written and verbal assertion to the police that the father had retained counsel for defendant was sufficient to invoke defendant's right to counsel. French , 11-576, p. 8, 79 So.3d at 1159. The French Court relied on Burbine and found the following:

In State v. Carter , 94-2859 (La. 11/27/95), 664 So.2d 367, 370, the defendant was arrested and appeared in court for an initial appearance. At the appearance, the judge appointed a public defender to represent him. Two days later, an officer met with the defendant in jail, advised him of his rights, and asked if he wanted to make a statement. The defendant stated that he understood his rights and agreed to make his statement. He signed a waiver of rights form, which included the right to remain silent and to have an attorney present during questioning, and which notified him that any statements he might make could be used against him at trial. He thereafter made a statement. The defendant's subsequent motion to suppress the statement was denied. Id.
In Carter , the Louisiana Supreme Court held that where a defendant's federal and state constitutional right to counsel has attached, but defendant has not asserted or invoked the attached right, he may validly waive his right to counsel during an interrogation, provided the waiver is knowing, intelligent and voluntary. The right to counsel "is the right of the client rather than the attorney, so that it may be waived by the client without counsel's participation." Id. at 380.
In the instant case, defendant's father, Mr. French, stated that he had retained counsel for defendant but counsel had not yet met with defendant. Further, unlike either of the aforementioned cases, defendant spoke with his father via telephone before the interview so presumably he was informed by his father that an attorney had been retained. Defendant, however, did not ask to speak to that attorney at any point that day.

Id. at p. 9, 79 So.3d at 1160 (emphasis added).

Following the precedent of Burbine and guidance of French , we find that the trial court erred in granting Mr. Alexander's motion to suppress the statement. Mr. Alexander was advised of his rights in accordance with Miranda , voluntarily waived his rights, and signed a form reflecting same. Then, Mr. Alexander provided a statement.

DECREE

For the above-mentioned reasons, we find that the trial court erred by granting Mr. Alexander's motion to suppress statement, as he freely and voluntarily gave the statement. As such, we reverse the judgment of the trial court and remand the matter for further proceedings.

WRIT GRANTED

McKAY, C.J., CONCURS IN RESULT