text:
    STATE of Louisiana v. Michael D. SUMRALL.
    No. KA 09-1216.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Michael D. Sumrall.
    Asa Allen Skinner, District Attorney, 30th Judicial District Court, Terry Wayne Lambright, Attorney at Law, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Michael D. Sumrall, was found guilty of second degree murder after trial by jury. He was given the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. We affirm.

FACTS

Mark Schermerhorn was murdered at his home on June 23, 2006, while Defendant and Tina Pruitt were also present. Schermerhorn was stabbed eight times. The wound on his left front chest was six and a half inches deep; it punctured the upper lobe of the left lung and penetrated the pericardial sac. The wound on the right side of his back was the same depth; it punctured the lower lobe of the right lung and broke through a rib. The blow required a significant amount of force. Six separate wounds on the left side of the back were fairly close together. Four penetrated the back of the left lung, and three of those four went through his ribs at depths of up to seven and a half inches. Each of the wounds was potentially fatal, but would not have brought about rapid death or incapacitation. Thus, the victim was still conscious and able to move after the wounds were inflicted.

Schermerhorn’s body showed no defensive wounds. There were no signs of a struggle at his home. His body was positive for benzodiazepine and carisoprodol, both of which could have been prescribed, and for marijuana. His .04 blood alcohol level could have been caused by the body’s decomposition, but forensic pathologist Dr. Karen F. Ross could not exclude the possibility of alcohol consumption shortly before death.

Dr. Ross found small abrasions on both of Schermerhorn’s knees. Those abrasions were consistent with wounds made by the victim falling to his knees. Dr. |2Ross believed fear or anger, along with drugs or alcohol, could impact the murderer’s strength. Schermerhorn was 6'3" tall and weighed about two hundred and twenty-eight pounds.

Defendant and Pruitt admitted they were both present at the scene of the murder; thus, one or both of them was responsible. Trial testimony contained great factual detail from a number of witnesses. Defendant and Pruitt accused each other of the murder.

Testimony of Robert Marsh, Sr.

On Friday, June 23, 2006, Defendant and his mother picked up Pruitt from the home of Robert Marsh, Sr., where Pruitt had resided for a couple of years. Marsh did not think Pruitt was expecting Defendant, but she left Marsh’s home with him after about fifteen minutes, around 1:30 to 2:00 p.m. Marsh did not see Pruitt again until around 5:00 to 6:00 p.m. on Sunday, June 25, 2006. She was alone, and she said Defendant’s mother had brought her to his house. Pruitt lay down on the couch in the living room and slept.

Around 2:30 to 3:00 a.m. the next morning, Marsh’s son Bert woke him and said Pruitt wanted to tell him something. Pruitt was very upset and nervous and could not stay still. She said Defendant had killed Schermerhorn. Marsh told her to call the sheriffs office, and she did.

Testimony of Tina Pruitt

Pruitt knew Defendant only because he had come by Marsh’s home a couple of times. She lived at Marsh’s home even though she had her own trailer across the |;!street. Defendant had told her he would introduce her to someone who would help her find a job offshore.

When Pruitt and Defendant left Marsh’s house, she thought they were going to talk to Defendant’s boss in Pitkin. Instead, they went to the home of Schermerhorn, whom Pruitt had known for approximately twenty-five to thirty years, and with whom she had experienced “intimate relations” in the past, Pruitt did not know that Defendant and Schermerhorn knew each other.

When they arrived at Schermerhorn’s home, she and Defendant exited the vehicle, and Defendant’s mother left. Scherm-erhorn met Pruitt and Defendant at the door of his double wide trailer, dressed in shorts and a shirt.

During their visit, Schermerhorn gave Defendant a Lorcet pill; Pruitt got it from Defendant and took it for her back pain. She took no other drugs prior to the murder. After the trio visited for thirty to forty minutes, Defendant asked Pruitt if she needed to use the restroom. No disputes, arguments, or heated words were exchanged among any of them when she left the room. At that point, Schermer-horn was lying on the couch, and Defendant was sitting in a chair next to the couch. While Pruitt was in the bathroom for about two minutes, she heard “a loud bam,” and she thought Schermerhorn may have fallen. She exited the bathroom and saw Defendant in the kitchen holding a large butcher knife. Defendant said, “I just killed my best friend.” She asked Defendant what kind of joke he was playing, and he told her to look around the corner. She took one step into the living room and saw Schermerhorn lying on a broken coffee table, making a noise similar to snoring. When she told Defendant to call 911, Defendant told her to go into the kitchen while |4he “finish[ed] him off.” Pruitt thought she saw Defendant stab Schermerhorn in the stomach, but ■ later learned he was not cut there.

Pruitt went to the kitchen and got a root beer from the refrigerator because she was nervous, upset, and scared. After she sat at the kitchen table for a couple of minutes, she reentered the living room and saw Defendant “just standing there,” and she “looked down and seen [sic] all the marks on [Schermerhorn’s] back.” Defendant “grabbed [Schermerhorn] by the shorts and flipped him to get in his pocket,” and he removed Schermerhorn’s keys and wallet. Defendant then went into another room and got two long-barreled guns. Defendant told Pruitt “he could stay there two weeks but he knew it was bothering [her],” and so the pair left the trailer in Schermerhorn’s vehicle with his wallet and two guns.

Pruitt and Defendant spent that Friday night at the Leesville home of Pruitt’s brother, Fred Bolgiano, who was Scherm-erhorn’s friend. Bolgiano came home drunk late that night, and Pruitt did not talk to him about the murder. At some point on Friday, after the murder, Pruitt took some Xanax and used cocaine. On Saturday morning, June 24, 2006, Pruitt and Defendant drove Schermerhorn’s vehicle to EZ Pawn in Pickering, Louisiana, and pawned the two guns for $89. Pruitt and Defendant returned to Bolgiano’s home and spent Saturday night there, where Defendant burned a shirt with “a couple of drops of blood on it” and a wallet in Bolgiano’s yard.

When Pruitt was able to speak to Bolgi-ano alone, she whispered to him Defendant had killed Schermerhorn, and Bolgiano “just looked down at the floor and shook his head with a woooo look.” On Sunday, June 25, 2006, Defendant called his mother and asked her to meet them at Leebo’s, a convenience store on Highway 28. | fiSchermerhorn’s vehicle was no longer at Bolgiano’s residence at that point, and Pruitt did not know where it was. Bolgi-ano drove Pruitt and Defendant to Lee-bo’s, where they met Defendant’s mother. She drove Pruitt and Defendant first to Fort Polk to purchase beer, and then to the charity hospital in Alexandria to take Defendant to the psychiatric ward. At Fort Polk, they dropped off Pruitt at a store while they went on the base to buy beer for the ride to Alexandria; Pruitt said they were gone only one or two minutes. During the trip to the hospital, Pruitt heard Defendant tell his mother what he had done. Pruitt told her about an incident that occurred between her and Schermerhorn when they had dated “thirty some years ago.” Defendant’s mother took Pruitt back to the home of Robert Marsh around 3:30 or 4:00 that afternoon.

Pruitt spoke briefly to Marsh and tried to go to sleep. Around 4:00 the next morning, Monday, Pruitt “had been sitting up shaking,” and she told Bert Marsh what had happened. Bert told Pruitt she had to call the police, and he woke his father. Pruitt did not want to involve Bert because he was wanted by law enforcement. Pruitt told Marsh “the whole story.” He also told her to call the police, and Pruitt contacted the Vernon Parish Sheriffs Department to report the murder.

Pruitt testified she gave “many statements” as part of the investigation; she was not totally candid in the first statement “because everybody didn’t want their name brought up.” She said she and Defendant had first gone to Biven’s Landing after the murder, when in fact they went to Bolgiano’s home. Bolgiano had told her “not to bring his name up when — if anything happened.” Pruitt was charged with accessory after the fact and testified she spent one hundred and ten days in jail before she was | ,;released on July 31, 2006. She was never promised anything in exchange for any statement she made.

Until about a year before Defendant’s trial on May 4, 2009, Pruitt had heavily abused cocaine on a regular and frequent basis for a long time, along with other drugs and alcohol. After the murder, on the same day, she purchased cocaine before she and Defendant went to Bolgiano’s home, and used it “once or twice” that day. She used cocaine again the day after the murder, until sometime between Saturday night and daylight on Sunday.

Pruitt testified it “might be true” that she told the dispatcher to whom she reported the murder that she was concerned about things getting turned around to look as if she and Schermerhorn had a confrontation and she killed him. Defendant and his mother told her on Sunday, on the way to the Alexandria hospital, that they would say Pruitt and Schermerhorn were fighting, and Defendant took the knife from Schermerhorn and killed him. They were trying to make “deals” with her. Defendant made his mother believe that was what had happened, but Pruitt told her on the way back from the hospital what really happened. Their plan was for Pruitt to stay with Defendant’s mother that night, and she would take Pruitt to rehab the next day. Pruitt testified at trial she was no longer under the influence of drugs on Sunday and Monday after the murder on Friday.

While Pruitt and Defendant were at Bol-giano’s house, a number of people came and went — Louis Owers, Bert Marsh, Eric Williams, and another couple — but Pruitt never asked to leave with any of them. Pruitt’s testimony showed she had 17numerous opportunities to get away from Defendant, but took advantage of none of them.

Pruitt’s testimony brought out inconsistencies that emerged during the sheriffs department’s investigation. At one point, Pruitt told authorities she and Defendant had left Schermerhorn’s car at Leebo’s, when in fact, they “rented” the vehicle to Eric Williams, one of Pruitt’s drug suppliers. Pruitt did not tell the truth at first because she “was trying to keep Eric from having to get in the middle of it, too.” Contrary to what Marsh testified, Pruitt said Bert was passed out on the couch at Marsh’s home when she arrived. In Pruitt’s first statement, given at 6:03 a.m. on Monday, June 26, 2006, she said she and Defendant had spent Friday night at Biven’s Landing. In her second statement, given at 2:15 p.m. the same day, she said they went to Bolgiano’s home Friday night. She attributed the discrepancy to trying to cover Bolgiano and Bert. By the time she gave a third statement on July 31, 2006, she admitted taking Xanax and Soma, and using crack cocaine after the murder.

Pruitt admittedly alleged different details about what happened after the murder. However, she never, in any of the three statements she gave to police or at trial, deviated from the sequence involving the murder and the events prior to it. At some time after the murder, Pruitt was charged with conspiracy to possess cocaine and possession of marijuana. She pled guilty to first offense possession of marijuana, and the conspiracy charge was dropped. She was not offered any promises or induced in any manner to take the plea.

| ^Testimony of Fred Bolgiano

Bolgiano testified Pruitt resided in her own home next door to his at the time of the murder. He first testified he had no recollection of seeing Pruitt on Friday, but he did recall seeing her on Saturday. However, he later said they arrived on Friday, when he had been “drinking a good bit.” Pruitt was “with a guy” Bolgi-ano did not know. Bolgiano later identified Defendant from a photo lineup as the “guy.” Pruitt and Defendant were already at Bolgiano’s home when he arrived, and they had brought a big plastic garbage bag of beer, Hot Pockets, hamburger meat and “stuff.”

At some time on Saturday, Pruitt, out of Defendant’s presence, told Bolgiano Defendant had killed Schermerhorn. Pruitt was upset and “seemed like she was scared.” Defendant then walked into the room, and Bolgiano did not know whether to believe Pruitt. Bolgiano also saw Defendant standing next to a fire in his yard that day, several yards away from a burn pile already there. Bolgiano did not recall anyone else at his home on Saturday.

Defendant and Pruitt left Bolgiano’s home around two or three o’clock on Sunday afternoon. He took them to Leebo’s, at the intersection of Highways 117 and 28, where they were going to meet Defendant’s mother. At that point, the vehicle in which they had arrived was no longer at Bolgiano’s home, and he did not know what had happened to it.

Testimony of Yvonne “Betty” Sumrall

Yvonne “Betty” Sumrall, Defendant’s mother, took her son into Leesville from Pitkin on Friday, June 23, 2006. She thinks they may have gone by Schermer-horn’s house before they came into town, but she was not sure. Schermerhorn frequently called her or Defendant to help him do things.

[3On their way out of Leesville, heading home, they stopped to see Robert Marsh. Defendant went inside; a few minutes later, Pruitt, then Defendant, came out of the house. They got in the car, and Pruitt told Sumrall she needed a ride to Seherm-erhorn’s house because he wanted to see her. Defendant had been staying at Schermerhorn’s house, about a half mile from Sumrall’s home. When they arrived, Pruitt told her the last time she was there (without saying how long ago that had been), Schermerhorn had beaten her, thrown her down the steps, and shot at her as she ran up the driveway. Sumrall dropped off Defendant and Pruitt around 5:00 or 6:00 p.m. and left before they went inside.

Sumrall did not hear from Defendant anymore on Friday or Saturday. On Sunday morning, he called Sumrall and asked her to pick him up at Leebo’s. She arrived around 1:30 or 2:00 p.m. to find Defendant and Pruitt. Had she known Pruitt would be there also, she would not have gone. Defendant said he was sick and needed to go to the hospital in Alexandria. Defendant had on the same clothes he had been wearing on Friday, and they were clean. Sumrall said Defendant and Schermerhorn had known each other for fifteen or twenty years, and Defendant “cared a lot” about Schermerhorn.

After leaving Leebo’s, Sumrall went to Fort Polk and purchased gas and beer. Because Pruitt did not have identification, they left her at a convenience store outside the base. They returned to pick up Pruitt thirty to forty-five minutes later. Sitting in the back with the radio playing, Sumrall could not have heard anything they might have said to her. There was no discussion of a murder; in fact, she had no conversation with her son. Sumrall was furious with Defendant because “he was suppose^] to [have] been by himself.”

|10When Defendant got out of the vehicle at the charity hospital in Alexandria, Pruitt said she could drive Sumrall home. Pruitt was very distracted; “something was radically wrong,” but again, she never said anything about Schermerhorn’s murder. Sumrall made no agreement to take Pruitt to rehab the next day.

Testimony of Robert “Bert” Marsh, Jr.

Bert Marsh had known Schermerhorn and Pruitt all his life, and he saw Pruitt every day at drug and alcohol parties. According to Bert, Pruitt did not have a reputation for being truthful, and she was known to be violent. Bert went to Bolgi-ano’s home in the early evening on Saturday, June 24, 2006, with Louis Owers. Defendant and Pruitt arrived around dark, in a black car driven by “a colored man” known as “Little E.” Defendant and Pruitt came inside for an evening of “partying,” and the driver left in the vehicle. Bert noticed no stains or blood on Defendant’s t-shirt and pants.

Defendant left Bolgiano’s home with Bert and Owers for about an hour and a half. Defendant never said anything about Schermerhorn’s murder during that time. Bert had known Defendant to “drink and smoke weed,” but that night, Defendant also used cocaine, which Bert found odd. Bert left the party around 2:00 or 3:00 Sunday morning; Defendant, Pruitt, and Bolgiano were all still awake at that time. Pruitt did not act unusually at the party.

Pruitt had told Bert that Schermerhorn and Larry Engles owed her money, and she was so mad she had taken things out of Engles’ home. Bert was asleep on the couch at his father’s house early on Monday, June 26, 2006 when Pruitt arrived. He woke up around 4:30 a.m. to find her there, acting “real weird.” He did not know if she was high or terrified. She had not been terrified when he had seen her on | n Saturday. Pruitt seemed very upset, sitting on the floor rocking back and forth, and she started talking about the murder. She told Bert she “went to the bathroom and when she come [sic] out [Defendant] had a knife in his hand,” but Bert did not believe her. Bert told her not to implicate him or his father in the murder, and threw the telephone to her to call the police, which she did. Marsh was already awake at the time; Bert did not wake him.

When Pruitt called the police, Bert left so that he would not be arrested for the parole violation for which he was wanted. Bert was serving a sentence for simple burglary and unauthorized use of an access card at the time of his testimony. He was also convicted of felony theft in 1999.

Testimony of Defendant

Defendant took the stand at trial. He testified he and Schermerhorn were best friends and had known each other about twenty-five years and saw each other every day when Defendant was not working offshore. Defendant often helped Scherm-erhorn around his house. Defendant called Schermerhorn “Gilbert”; he left a note at Schermerhorn’s house on June 22, 2006, when he came home from an offshore job that read, “Say Gilbert I’m at home until the 1st of July.” Schermerhorn called Defendant that evening, and Defendant went to Schermerhorn’s house, where the two made gumbo, visited, and watched television until around midnight. Defendant is 5'10" tall and weighs two hundred and twenty pounds.

Around 8:00 a.m. on Friday, June 23, 2006, Defendant called Schermerhorn, who asked him to pick up Pruitt on Defendant’s way home from Leesville, where he went to see his parole officer. Defendant was convicted of theft in 1996, and of theft, forgery and unauthorized use of a movable in 2004. Defendant’s mother took him to 11{>Leesville, and then they stopped at Marsh’s home to get Pruitt, who did not know Defendant was coming to get her. Defendant did not know Pruitt, but had seen her at Marsh’s house a couple of times. He had asked his mother to drive him to Marsh’s house, but he did not tell her they were going to get Pruitt until they arrived at Marsh’s house. Defendant told Pruitt that Schermerhorn wanted to see her, and she left Marsh’s home to go to Schermerhorn’s house. Along the way, they stopped at Speedy Bee’s to buy beer and cigarettes. When they arrived at Schermerhorn’s house, Defendant and Pruitt got out of the car, and Defendant’s mother left. Defendant had no further contact with his mother until Sunday morning.

Pruitt and Schermerhorn went into Schermerhorn’s bedroom. Defendant could not hear their conversation, but he believed it was about money Schermerhorn and someone else owed Pruitt; she wanted him to pay. Defendant heard raised voices coming from the bedroom during the conversation. At Schermerhorn’s request, Defendant took his car to the store and purchased more beer and cigarettes; he was gone about thirty minutes. When he returned, Schermerhorn was sitting on the couch, and Pruitt was sitting in a chair at the end of the couch. Defendant and Schermerhorn talked of purchasing land at Toledo Bend, something they had discussed for a while.

Schermerhorn asked Defendant to try to connect a satellite receiver in his bedroom. Defendant and Schermerhorn went to the bedroom, then returned to the living room to look behind the television. Pruitt was not in the living room when they returned; Defendant thought she was in the bathroom. Schermerhorn stood right behind Defendant. As Defendant slid the television back against the wall, he heard Schermerhorn trying to say his name. Schermerhorn started to go down on his knees, | ^kneeling at the end of the coffee table. Defendant saw blood on his lips. Pruitt was at the end of the coffee table toward the kitchen. Defendant went to Schermerhorn to see what was wrong; he “was trying to breath[e] and just — didn’t sound good.” When Schermerhorn leaned over the coffee table, Defendant picked him up by the belt loops on his shorts and tried to put him on the coffee table, all without getting any blood on him. Prior to the noises Schermerhorn made, Defendant heard nothing unusual in the small living room where the three of them were.

Defendant asked Pruitt to call 911, but she began to stab Schermerhorn again. Defendant dropped Schermerhorn on the coffee table while Pruitt continued to stab him, and “like a coward [he] went and got in [Schermerhorn’s] bedroom closet.” He sat on the floor in Schermerhorn’s closet for about ten minutes that “seemed like hours.” Pruitt came to the closet door with a shotgun, and Defendant asked if she was going to shoot him. The shotgun had been located near the end of the couch in the living room; Defendant said Scherm-erhorn “kept his gun close to him.” Pruitt never threatened Defendant with the shotgun, and never said she would shoot him, but she had the shotgun in her hand. She told him they were going to her brother’s house and “he was going to make it right.” Defendant went with her without checking on Schermerhorn; in Defendant’s words, “[he] didn’t do nothing.” Pruitt had a trash bag with something in it when she left Schermerhorn’s house; they took it with them, along with the shotgun.

When asked why he did not call 911, Defendant responded, “I, I don’t know. To this day, I still don’t know.” Pruitt carried the shotgun and the trash bag when they left Schermerhorn’s house. A .22 rifle was already in Schermerhorn’s car. Pruitt drove Schermerhorn’s car to Speedy Bee’s; she went inside and bought beer, ice, and 114an ice chest while Defendant stayed in the car. Only a very short time after the murder, Defendant did nothing and said nothing to anyone about it, and he could not answer why. Defendant and Pruitt then traveled to Texas Street, where Pruitt purchased crack from a girl for two hundred dollars. Around dark, they went to Bolgiano’s house.

When they arrived, Pruitt took the ice chest and beer inside and set down the trash bag before going into the bedroom with Bolgiano for about fifteen minutes. Defendant sat in the living room the entire time, and could not explain why he did not leave. When Pruitt returned, she opened a beer and put the contents of the bag— “some hamburgers and some Hot Pockets and stuff she had took [sic] from [Scherm-erhorn]’s house” — in the freezer.

That Friday night, Defendant got drunk; Pruitt and Bolgiano drank a lot, but “didn’t get as drunk as [he] did.” When Defendant went to bed around 2:30 or 3:00 in the morning, Pruitt and Bolgiano were still drinking beer and smoking crack. Defendant also smoked crack for the first time. He never gave any thought about what he was going to do about the murder.

The next morning, Pruitt and Defendant left Bolgiano’s home in Sehermerhorn’s car to go to the “Crossings” area to purchase more drugs. They met someone called “Dirt”; Pruitt was going to trade each of Schermerhorn’s guns for a twenty-dollar rock of crack. Defendant stopped the deal because the guns “were [Schermerhorn]’s grandpa’s guns.” He, Pruitt, and Dirt went to the Head South pawn shop to pawn the guns, but the shop had just opened and had no money. They then went to EZ Pawn, where Defendant produced identifying documentation and signed the pawn ticket. He received $89 in the transaction. Defendant said nothing to the | impawn shop employee or anyone else about the murder, and he has no idea why he did not.

The trio then returned to the “Crossings” area, dropped off Dirt and met with Eric Williams, known as “Little E.” All three used drugs in the car while returning to Bolgiano’s house. Along the way, Pruitt “just started getting weird and talking to herself,” and Williams began to drive. Pruitt and Williams made a deal for Williams to use Schermerhorn’s car for an hour in exchange for fifty dollars worth of crack. They returned to Bolgiano’s house around noon on Saturday, June 24, 2006.

About an hour later, Williams returned to Bolgiano’s house. He gave Pruitt more crack in order to use the car for another hour. Williams left, and a few hours later, Bert arrived with Louis Owers. Williams ultimately returned again that night and gave Pruitt more drugs for use of the car. Defendant never saw the car again after that, and he did not know where it was.

Pruitt’s shirt had two small spots of blood about the size of a pea on it when they left Schermerhorn’s house, and when she wore it into Speedy Bee’s a short time after the murder. On either Saturday morning or Saturday evening, she built a fire in Bolgiano’s back yard and burned her clothes. Defendant was at the fire with Pruitt. Throughout that Saturday night, the people at Bolgiano’s house drank and used drugs. Defendant left with Louis Owers and Robert Marsh; they went to get money from an ATM. Throughout the time Defendant, Bert and Owers were together, Defendant said nothing of Schermerhorn’s murder, and he made no effort to avoid going back |16to Bolgiano’s house. Pruitt then called someone to bring more drugs. The night was steady with drug use and partying, and no one slept.

On Sunday morning, Defendant called his mother and asked her to come get him. He could not explain where they were, so he asked her to go to Leebo’s on Highway 28, where Bolgiano said he would take Defendant. Defendant and Pruitt met Ms. Sumrall around 12:30 or 1:00 p.m. Defendant asked Ms. Sumrall to take him to Fort Polk to get a beer because he had a hangover. At Fort Polk, they left Pruitt at a store outside the post because she had no identification. They purchased gas and beer at Fort Polk and returned to get Pruitt. After they left Fort Polk, Defendant told his mother he wanted to go to the hospital because he “really thought [he] was going nuts.” Defendant then drove them toward Pineville. He never told his mother he killed Schermerhorn, and Ms. Sumrall knew nothing of the murder.

Defendant checked himself into the hospital, saying he needed to talk to a doctor in the psychiatric ward. He thought he had depression and was “just going crazy.” He did not see his mother or Pruitt anymore that day.

Defendant’s sworn testimony was that he did not kill Schermerhorn; “Tina [Pruitt] did.” He was present when Schermerhorn died. He had no explanation for why he said nothing to anyone about the murder when he had multiple opportunities to do so; when asked why, he consistently responded, “I don’t know.”

Testimony of other witnesses

Sheriffs Deputy Keith James was the dispatcher on duty who received Pruitt’s call around 3:30 to 4:00 a.m. on June 26, 2006 Pruitt sounded “real nervous,” and said she witnessed a homicide on Marlowe Road when Defendant killed Schermer-horn. She told Deputy James she was “afraid for her life possibly.”

117Patrol Officer Jerry Twyman took the telephone from Deputy James, and Pruitt told him Defendant had killed Schermer-horn. Officer Twyman contacted Deputy Tommy Pollard, and they went to Scherm-erhorn’s residence around 4:00 a.m. They saw a blue light coming from inside the trailer that appeared to come from a television, but no one responded when they knocked on the door. When Deputy Pollard opened the door, two of the dogs in the yard ran inside and prevented the officers from entering the trailer, but Officer Twyman was able to see a body lying on the floor.

After an animal control warden was contacted and removed the dogs from the trailer, Chief Detective Marvin Hilton, Detective Ronald Wiggins, and Detective Yates went to the scene. The detectives entered the trailer around 6:35 a.m. and found Schermerhorn’s body face down to the left of the door, partially on the floor and partially on a coffee table that apparently broke when he fell on it. They saw six puncture wounds on Schermerhorn’s left back and one on his right back. They toned the body and discovered another puncture wound to the left chest that had bled a great deal more than the others. Detective Hilton saw no blood on the kitchen floor, but he found a butcher knife in the sink wrapped in cloth.

During Detective Wiggins’ interview of Pruitt, he learned of Defendant’s whereabouts, and asked Detectives Pollock and Kennedy to go to Huey P. Long Hospital around 7:00 a.m. They found Defendant there and brought him to the sheriffs office.

Just after 9:55 a.m., Detective Hilton received a call that Schermerhorn’s vehicle had been found at 1007 N. Ermine Street. He went from that location toJ^Bolgiano’s house around 11:00 a.m. to look for burned areas in the yard. In the front yard, he recovered some cloth-like material, and he found other potential evidence in the backyard. Lab reports, however, could not identify the burned items. Detective Hilton had Bolgiano view a photo lineup, and he identified Defendant as the person who was in his residence that weekend.

The trial began on May 4, 2009, and went to the jury on May 8, 2009. More than three hours after the jury began its deliberations, it sent a note to the court stating, “as of now, we cannot deceide [sic] NOW WHAT?” Questioning of the foreman by the trial court revealed the group was close to having the ten votes required for a verdict, without revealing whether the majority favored conviction or a not guilty or responsive verdict. The trial court instructed the jury to continue its deliberations. Defense counsel objected on grounds that the trial court’s instructions “border[ed] on being coerced,” that the jury’s question “kind of sends an occasion that there [sic] are almost hopelessly deadlocked.” He was concerned that the jury would think “they really want us to get this over with,” so those who were “holding out” would just “bail” to end it.

The jury returned at 7:58 p.m. with a verdict of guilty. Polling of the jury revealed ten “yes” votes and two “no” votes to convict. The court imposed the mandatory life sentence without benefit of probation, parole, or suspension on May 18, 2009.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record we find there are no errors patent.

^ASSIGNMENT OF ERROR NO. 1

Defendant contends the jury verdict that convicted him of the second degree murder of Schermerhorn fails to meet the legal standard of sufficiency of the evidence. He argues no physical evidence linked him to the murder, but he admits he was present when it occurred. Because Pruitt’s testimony is inconsistent and unreliable, Defendant argues, the evidence was insufficient to support his conviction.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). The essential elements of the crime of second degree murder are the killing of a human being with the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1.

The Jackson standard of review is now legislatively embodied in La. Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the insufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270; State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084. Indeed, a witness’s credibility is “a matter of the weight of the evidence, not subject to appellate review.” State v. Strother, 09-110, p. 15 (La.App. 3 Cir. 10/7/09), 19 So.3d 598, 607-08.

This case presents a finite number of possibilities of how the murder occurred. Either Defendant or Pruitt, or both of them, murdered Schermerhorn. Defendant says Pruitt did it; Pruitt says Defendant did it. The jury evaluated lengthy and detailed testimony from both of them. It believed Pruitt; it did not believe Defendant. We will not interfere with the jury’s credibility determination unless the testimony Pruitt gave would be insufficient to convict Defendant.

Assuming Pruitt’s testimony to be true, the evidence is sufficient to support Defendant’s conviction. Although she was not in the room when Schermerhorn was first stabbed, Pruitt returned to the room very shortly thereafter and found Defendant holding a knife. Defendant told her he had just killed his best friend, and he told Pruitt to leave the room while he stabbed Schermerhorn again. The autopsy showed Schermerhorn sustained eight wounds, up to seven-and-a-half inches deep, inflicted with enough force to pierce cartilage and bone and puncture his lungs.

Additionally, the jury could have reasonably disbelieved Defendant’s testimony. Defendant said he was never afraid of Pruitt, even though she killed his friend without provocation, and she pointed a shotgun at him. Defendant passed up opportunity after opportunity to report the crime before Pruitt reported it two-and-a-[half'21 days later. In fact, Defendant never reported that Pruitt, with whom he had no relationship, had murdered his best friend. And, from the Friday of the murder until Sunday afternoon, he chose to stay with Pruitt, a woman he did not know and had only seen a couple of times previously. His response to why he behaved as he did was simply, “I don’t know.”

Defendant offered some evidence to support his argument that Pruitt killed Schermerhorn. However, the jury’s verdict of guilty indicates a rejection of his claim of innocence. Given the evidence in the record, the jury’s rejection was reasonable, as was its verdict of guilty.

ASSIGNMENT OF ERROR NO. 2

Defendant argues the trial court erred by restricting his cross-examination of Pruitt in violation of the Fourteenth Amendment and the Confrontation Clause, and that the trial court further erred by refusing to allow a proffer of evidence he sought to introduce. Specifically, Defendant wanted to introduce evidence of Pruitt’s post-murder drug usage and the “deal” she received in this case as the State’s witness in order to place her credibility in doubt. The trial court held that potential testimony was inadmissible because it was “too unrelated — to [sic] far in time.”

The courtroom "debate began after defense counsel questioned Pruitt about prior convictions for drug possession. During the resulting sidebar conference, counsel indicated his intention to question Pruitt about drug charges filed against her after the murder, but unrelated to it. The trial court repeatedly advised defense counsel that he could ask about convictions, but none of the facts leading up to the convictions. Defense counsel felt evidence of Pruitt’s post-murder drug charges impacted her credibility, and her drug use affected her ability to recall the events of the murder.

^Other evidence Defendant sought to admit concerned Pruitt’s alleged five to six hundred drug purchases from an individual. Defendant argued the evidence somehow impacted Pruitt’s credibility; in his brief, he argues that evidence was “relevant to her motives and reliability as a witness” and affected “her credibility and her ability to remember things.” The trial court found that evidence far beyond Pruitt’s possible criminal activity related to this case, and disallowed its admission. Counsel also suggested Pruitt’s accusatory testimony against Defendant was prompted by a “deal” she made with the State regarding those post-murder charges. Introducing evidence of the charges, he argued, would show Pruitt’s motive to lie.

In fact, evidence of those charges was ultimately introduced by the State, not by Defendant. After the sidebar conference in which the trial court agreed that defense counsel could question Pruitt about her post-murder conviction, counsel failed to ask those questions, asking instead only whether Pruitt herself committed the murder. When the State recalled Pruitt, she testified she was charged, in an unrelated case, with conspiracy to possess cocaine and possession of marijuana. She explained the conspiracy charge was dropped, and she pled guilty to first offense possession of marijuana. Her plea had nothing to do with the murder case or her testimony in it.

Defendant’s brief suggests drug charges were dropped and/or minimized in exchange for Pruitt’s testimony, and this “deal” led to her release thirty-five days after her arrest on June 26, 2006. The record, however, does not support this theory. Indeed, on cross-examination, defense counsel himself pointed out that the date of Pruitt’s drug offense — not her plea^ — was in October of 2007, more than a year after the murder, and more than a year after she was released from jail without being charged with anything related to the murder. Thus, her purported desire to avoid | ¡>.<¡serious drug charges could not have been satisfied by any plea she would have made in exchange for testimony, when the drug offenses to which she pled had not yet been committed at the time of her release from jail.

Only relevant evidence, that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” is admissible at a trial. La. Code Evid. arts. 401, 402. Here, evidence of charges not leading to convictions does not help the jury determine the probability that any fact is true or false. Evidence of Pruitt’s drug charges so temporally removed from and unrelated to the murder is not relevant to Defendant’s guilt or innocence. Likewise, how many hundreds of times she may have purchased drugs from someone does not help determine any fact pertinent to the murder. And, regarding her plea agreement relative to post-murder drug charges, defense counsel himself showed that evidence provided no motive for Pruitt to lie, because the offenses which led to the plea occurred long after Pruitt’s release from jail with regard to this murder. Accordingly, the trial court did not err in disallowing the introduction of this evidence at trial.

Further, we find the trial court’s alleged error in disallowing a proffer of evidence likewise has no bearing on the outcome of the trial. If indeed the trial court erred, that error is of no moment because the very evidence of which Defendant complains was ultimately revealed to the jury through questions posed by the State. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

Defendant argues, particularly in light of what he considers to be a “modified Allen charge,” that the non-unanimous guilty verdict violates federal and state ^constitutions. He acknowledges this court’s decision in State v. Juniors, 05-649 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137, writ denied, 06-267 (La.9/15/06), 936 So.2d 1257, cert. denied, 549 U.S. 1226, 127 S.Ct. 1293, 167 L.Ed.2d 110 (2007), but urges this court to reconsider the issue.

Juniors contains a thorough discussion of this issue, and explains that La.Code Crim.P. art. 782(A), requiring at least ten jurors to concur in a verdict in a case “in which punishment is necessarily confinement at hard labor” is not unconstitutional. Relying on Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), this court agreed that unanimity is not constitutionally required.

Defendant argues Apodaca is “a brief departure” from the principle that the Sixth and Seventh Amendments of the United States Constitution require unanimous verdicts, citing Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This court in Juniors noted that each of those cases on which the defendant relied “concern what issues must be decided by a jury,” not the issue of the constitutionality of non-unanimous verdicts, as does Apodaca, Juniors, 918 So.2d at 1148.

Defendant has not distinguished his case from Juniors or shown any reason this court should deviate from its opinion in that case. Accordingly, we choose to maintain the Juniors rationale, and to reject this assignment of error.

1 ^ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, Defendant contends the trial court erred when it instructed the jury to continue its deliberations, and objects to that instruction as a “modified Allen charge.” This court explained an Allen charge in State v. Gauthier, 04-1608 (La.App. 3 Cir. 11/2/05), 916 So.2d 314, writ denied, 06-465 (La.9/22/06), 937 So.2d 378, quoting State v. James, 96-472, pp. 3-4 (La.App. 3 Cir. 12/11/96), 687 So.2d 485, 487, writ denied, 97-69 (La.5/16/97), 693 So.2d 796:

In [State v.] Nicholson, 315 So.2d 639 [ (La.1975) ], the supreme court set limits to the instructions that a trial judge can give to a jury after the jury announces it cannot reach a verdict. In Nicholson, the court held when a trial court gives a deadlocked jury an instruction that rises to the level of being an “Allen charge” or any “coercive modification” of an Allen charge, the trial court has committed reversible error. The Allen charge originated in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), where the United States Supreme Court approved a charge designed to break a jury deadlock and accomplish jury unanimity. One characteristic of an Allen charge is an admonition to the jurors in the minority to reconsider their opinion in favor of the majority in order to reach a decision. State v. Schamburge, 344 So.2d 997 (La.1977); State v. Washington, 93-2221 (La.App. 1 Cir. 11/10/94); 646 So.2d 448; State v. Caston, 561 So.2d 941 (La.App. 2 Cir.1990); State v. Campbell, 606 So.2d 38 (La.App. 4 Cir.1992). A second characteristic is the trial court implying to the jury that it must reach a decision because the trial court will not accept a mistrial. Id.
The Louisiana Supreme Court has banned the use of Allen charges and “modified” Allen charges to ensure that juror verdicts are not the product of coercion. Schamburge, 344 So.2d 997; Nicholson, 315 So.2d 639. “When the duty to reach a verdict is coupled with the trial court’s admonition that those in the minority should reconsider their position, there exists an almost overwhelming pressure to conform to the majority’s view.” Washington, 646 So.2d at 454-455.

Gauthier, 916 So.2d at 321.

In Gauthier, the jury submitted a question about its options and implied it may have been at an impasse. The trial court instructed the jury that he would send them back to deliberate for an additional thirty minutes, and it urged the jury members to 12fi“come to some kind of agreement.” Id. The trial court encouraged them not to surrender their individual opinions, but to consider the other jurors’ views and weigh them against their own. This court held counsel was not ineffective for failing to object to this charge, as it “was not an Allen charge.” Id. at 322.

Similarly, the trial court ordered the jury to return to deliberation and return a verdict when the jury informed the court it could not reach the required vote after slightly more than an hour of deliberations in State v. Anders, 06-589 (La.App. 3 Cir. 9/27/06), 941 So.2d 93. This court held the court’s comments “merely indicate it felt it was much too soon in deliberations for the jury to conclude that it could not reach a verdict.” Id. at 101-02.

Here, the jury sent a note to the trial court asking, “as of now, we cannot de-ceide [sic] NOW WHAT?” The trial judge called the jury to the courtroom, and this exchange occurred:

BY THE COURT:
Let me ask you this. Without giving me the numbers at this point, are you close to, to the ten one way or the other — the ten you need to reach a verdict?
BY [THE FOREMAN]:
Yes, sir.
BY THE COURT:
All right, sir. So, it — it’s not at least at this point an evenly split division that— there’s, there’s — it’s close one way or the other. Is that correct?
BY [THE FOREMAN]:
Yes, sir.
BY THE COURT:
|?jAU right. All right, well, we’ve been at this for three hours and a little over. I’m going to do this and this is just my call. I’ve explained to you in the charge the duty to deliberate towards a verdict, and what each of you should do about considering your own positions and talking about it and, and thinking it through and determining just exactly where you stand. I’m going to instruct that you go back into there now and deliberate some more. Now, I’m not going to give you a time frame. I’m not allowed to tell you how long I intend to keep you here or anything of that kind. But, based on what you told me, if you are close to one, one verdict — to a verdict one side or the other — one way or the other, I’m going to ask you to go back and continue your deliberations — continue to talk among yourselves and see if there’s any, any movement or any change and, and give it a little more effort and a little more time ... [I]t is your duty to deliberate and try to reach a verdict if, if you can without doing harm to your own position and conscious [sic] and so forth as I’ve said. But, I’m going to ask you to give it a little more time and try a little more if you would please.

The trial court never admonished the jurors in the minority to reconsider their position. He never determined which way the deliberations leaned, only that they were close to the required number for a verdict. He encouraged the jurors to consider and think through their positions, to discuss those positions, and to try to reach a verdict without doing harm to their positions. These words of encouragement do not equate with an admonition to the minority jurors to reconsider their views in favor of the majority.

Further, the trial court did not imply the jury must reach a verdict because he would not accept a mistrial. He specifically would not give the jury a time frame to come up with a verdict. He never mentioned the consequences of not reaching a verdict. He merely asked them to spend a little more time on their deliberation and to try harder. This is not a modified Allen charge, and thus, this assignment of error is without merit.

| ^ASSIGNMENT OF ERROR NO. 5

Defendant argues he should be granted a new trial because the trial court erroneously denied his motion in limine, allowing evidence of other crimes committed by Defendant, where the State did not file a pre-trial Prieur notice. The State contends the evidence admitted was part of the res gestae, and therefore, was not subject to Prieur notice.

During opening statements, the State mentioned that Defendant and Pruitt left Schermerhorn’s residence after the murder in his vehicle with some of his property. Defendant objected on grounds the comments alluded to evidence of other crimes that were inadmissible at his second degree murder trial. Defendant then Sled a motion in limine to prevent the introduction of evidence relating to the perceived other crimes.

The trial court denied that motion with regard to the items taken from Schermer-horn’s house. The trial court believed Defendant had reasonable notice through discovery responses that the State intended to use the evidence.

Louisiana Code of Evidence Article 404(B)(1) states:

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

Thus, when evidence of other crimes is “admissible for other purposes,” such as those shown in the first part of this article, the State must provide reasonable pre-trial notice of its intent to introduce the evidence at trial. However, the article deals 123with a second instance where evidence of other crimes is admissible — “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding”— and this use of other crimes evidence does not require pre-trial notice to the defendant. We find that the second scenario is present here, and therefore, pre-trial Pri-eur notice was not necessary. Therefore, the issue is whether the other crimes evidence is an integral part of Schermer-horn’s murder.

The Louisiana Supreme Court discussed the admissibility of other crime evidence when it relates to conduct formerly known as res gestae in State v. Taylor, 01-1638, pp. 10-12 (La.1/14/03), 838 So.2d 729, 741-43, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004):

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res ges-tae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an |Sflhonest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

The res gestae doctrine in Louisiana is broad; it includes the testimony of witnesses “pertaining to what they heard or observed before, during, or after the commission of the crime, if the continuous chain of events is evident under the circumstances.” State v. Williams, 614 So.2d 252, 254 (La.App. 3 Cir.1993). Pruitt’s trial testimony was that she observed Defendant leave Schermerhorn’s house with Schermerhorn’s keys, wallet, and guns within minutes of the murder. These acts, when combined with the murder, form “a continuous chain of events.” Stated differently, this testimony “helps to complete the story of the crime.” The other crimes evidence allows the jury to infer and conclude as necessary to reach an honest verdict. The trial court properly denied Defendant’s motion in limine and properly found the filing of a pre-trial Prieur notice unnecessary.

CONCLUSION

Each of Defendant’s assignments of error is without merit. The jury chose between contradictory versions of how the murder occurred by making credibility assessments; it believed Pruitt’s testimony that Defendant killed Schermerhorn. This court may not substitute another factual conclusion for the jury’s determination. Pigford, 922 So.2d 517. Pruitt’s testimony was not unconstitutionally limited. The evidence Defendant sought to proffer was in fact presented by the State, such that any purported error concerning the proffer was harmless. This court has previously held that a non-unanimous verdict is not unconstitutional. Juniors, 918 So.2d 1137. The trial court did not present an Allen charge to the jury that encouraged the minority members of the jury to surrender their position or threatened a mistrial in absence of 131an imminent verdict. Finally, the other crimes evidence presented by the state was part of a continuous chain of events intertwined with the murder itself.

DECREE

Defendant’s conviction for second degree murder is affirmed.

AFFIRMED.

      . In order to distinguish between Robert Marsh, Sr. and Robert “Bert” Marsh, Jr., this opinion refers to Marsh, Sr. as "Marsh” and Marsh, Jr. as “Bert.”

      . The record is not clear whether Defendant went to the hospital in Alexandria or Pine-ville.

      . Obviously, one hundred and ten days did not pass between the date of the murder on June 23, 2006 and the date of Pruitt’s release on July 31, 2006.

      . Although Pruitt was charged with being an accessory after the fact, the District Attorney’s office ultimately decided not to formally charge her with any crime.

      . The offense date was in October, 2007.

      . At another point in his testimony. Defendant said he did not know the subject of the argument.

      . The record is not clear whether Defendant was referring to Robert Marsh, Sr. or Robert "Bert” Marsh, Jr. However, the context and the testimony of other witnesses suggests Defendant meant Bert Marsh.

      . This murder weapon was a long-bladed knife, but neither this knife nor any other was ever identified.

      . Defendant here relies on the same cases.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Tommy MANUCY v. JOE MANUCY RACING.
    No. WCA 09-1246.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Rehearing Denied May 12, 2010.

      Gregory Edgar Bodin, Baker, Donelson, Bearman, Caldwell & Berkowitz, Jeremy Berthon, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellant, Louisiana Workers’ Compensation Corporation.
    Harry Karl Burdette, The Glenn Ar-mentor Law Corporation, Lafayette, LA, for Plaintiff/Appellee, Tommy Manucy.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

Lin this matter, the Louisiana Workers’ Compensation Corporation (LWCC) appeals the decision of the workers’ compensation judge granting Tommy Manucy indemnity benefits. For the following reasons, we hereby reverse the decision of the workers’ compensation judge and render judgment in favor of LWCC.

On November 13, 2005, Mr. Manucy was working in the capacity as a “leg man” for his son’s horse training company, Joe Ma-nucy Racing, when he was knocked down and kicked and/or trampled by a horse. He experienced immediate pain in his leg and was taken to the hospital in an ambulance. The next day, his knee was immobilized, and Mr. Manucy was placed on crutches. On January 18, 2006, Mr. Manu-cy had surgery to repair a torn ACL. Mr. Manucy was unable to return to Joe Manu-cy Racing or any other employment since the accident.

On June 1, 2007, Mr. Manucy filed the current claim for workers’ compensation. The workers’ compensation judge found that Mr. Manucy continued to work until August of 2006, at which point the workers’ compensation judge found Mr. Manu-cy’s injury to have developed into a disability, preventing the running of prescription on his claim. The workers’ compensation judge awarded Mr. Manucy $350 per week in indemnity benefits. From this decision, LWCC appeals.

LWCC asserts two assignments of error on appeal. It claims that the workers’ compensation judge erred in finding that Mr. Manucy’s injury was a developing one, preventing his claim from prescribing, and that the workers’ compensation judge erred in finding an employer/employee relationship between Mr. Manucy and his son. For the following reasons, we agree with LWCC that Mr. Manucy’s claim has prescribed.

| Louisiana Revised Statutes 23:1209 states:

A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

As noted by the supreme court in Winford v. Conerly Corp, 04-1278, pp. 5-6 (La.3/11/05), 897 So.2d 560, 564:

The Workers’ Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La.4/10/95) 652 So.2d 1323, 1325 (citing Lester v. Southern Casualty Ins. Co., 466 So.2d 25 (La.1985)). In furthering this policy, this Court has construed La. Rev.Stat. 23:1209(A)’s term “the time the injury develops” liberally in cases in which the worker attempts to continue working until no longer able to perform his employment duties. Sevin, 652 So.2d at 1325-26 (citing Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise-Workers’ Compensation § 384 (3d ed.1994)).
This Court has consistently held that an employee who suffers a work related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Id. at 1326. The “time the injury develops,” is generally understood as the date the disability develops, which is usually identified as the time when it becomes clear that the worker can no longer perform his or her employment duties in a satisfactory manner. Id. at 1325-26 (citing Swearingen v. Air Prod. & Chem., Inc., 481 So.2d 122, 124; Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 525). The Sevin Court found that the “developing injury” rule is applicable where the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so. Id.
|sThe jurisprudence has generally identified two situations that signify the date a developing injury was found to be disabling for the purpose of prescription. The first is the date of termination of employment. Scott v. Wal-mart Stores, Inc., 03-0104 (La.App. 4 Cir. 7/2/03) 851 So.2d 1210, 1214; (see Boudreaux v. Angelo Iafrate Const., 02-0992 (La.App. 1 Cir.2003) 848 So.2d 3, 7). The second is the date of medical diagnosis where the diagnosis notifies a previously unaware injured employee of a disabling condition. Scott, 851 So.2d at 1214 (see Holcomb v. Bossier City Police Dept., (La.App. 2 Cir. 8/25/95) 660 So.2d 199); see also Collier v. Southern Builders, Inc., (La.App. 2 Cir.1992) 606 So.2d 885.

The workers’ compensation judge found that Mr. Manucy’s injury was not severe enough to force him to quit working until August of 2007. We find this determination to be completely unsupported by the record. While Mr. Manucy’s leg injury may have worsened over time, the record before us is clear that Mr. Manucy’s injury was, in fact, immediately disabling. His knee injury was instantaneous and traumatic. He was taken immediately to the hospital via ambulance. Mr. Manucy testified that he was told the day after the accident that he would require surgery for the injury. He stated that he was told that his knee was “busted in two” and that the injury was so severe that there was too much damage to know the ultimate outcome for the injury. Mr. Manucy admitted that after the accident he was unable to do the work of a leg man, as he simply could not bend down. His employment ended immediately. He testified that he was in a cast for the two months between the accident and the subsequent surgery and that he could not have worked at all. Moreover, he stated that he could not have worked for six to eight weeks after the surgery while he was recovering from that surgery.

Despite the workers’ compensation judge’s finding that Mr. Manucy tried to work after the accident, Mr. Manucy himself testified that he never attempted to gain employment after the accident. Mr. Manucy stated that while he had been able to do certain “little things” around the house and with his own horses, he could not do those |4things at work because “the track demands more.” Mr. Manucy was no longer able to perform his employment duties immediately after the accident, nor did he even attempt to do so. Accordingly, the workers’ compensation judge’s finding that his injury was developing is clearly incorrect. Because Mr. Manucy’s injury was not a developing one, his claim for indemnity benefits has prescribed.

Our determination on the prescription issue makes it unnecessary to address the other issues raised by LWCC’s second assignment of error.

For the above reasons, the decision of the workers’ compensation judge is hereby reversed. We hereby render judgment dismissing Mr. Manucy’s claim. Costs of this appeal are hereby assessed against Mr. Manucy.

REVERSED AND RENDERED.


text:
    CLOVELLY OIL CO., INC. v. MIDSTATES PETROLEUM CO., LLC.
    No. CA 09-1230.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Raymond Anthony Beyt, Beyt <& Beyt, Lafayette, LA, for Defendant/Appellee, Midstates Petroleum Company, LLC.
    Marshall Taylor Darden, Carver, Dar-den, Koretzky, Tessier, Finn, Blossman & Arceaux, LLC, New Orleans, LA, for Plaintiff/Appellant, Clovelly Oil Company, LLC.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD Ezell, Judges.
   EZELL, Judge.

I iln this matter, Clovelly Oil Company appeals the granting of Midstates Petroleum Company’s motion for summary judgment dismissing its declaratory action and suit for breach of contract. For the following reasons, we hereby reverse the grant of summary judgment and remand this case to the trial court.

By assignment and bill of sale dated September 1, 2007, Midstates acquired mineral leases, wells, agreements, and equipment located in Evangeline Parish from Opex Energy. The contract included (original emphasis removed, bold emphasis ours):

All operating agreements, joint venture agreements, seismic exploration agreements, area of mutual interest agreements, farmout and farmin agreements, pooling unitization agreements, pooling declarations, Orders, allowables, records, certificates, permits, licenses, right-of-way, servitudes or easements, logs, seismic lines, cores, cuttings, samples and other technical data (and maps or interpretations of any of the foregoing), options, division orders, transfer orders, production sales contracts, purchase, sale, exchange, and processing agreements and all other contracts, agreements and instruments affecting the production, storage, treatment, transportation, processing or sale or other disposal of Hydrocarbons, including, without limitation, all of the rights, title and interest acquired by Assignor by virtue of that certain Partial Assignment and Bill of Sale dated effective June 1, 2005, and recorded in Book 145, Page 377, under File No. 547553 of the Conveyance Records of Evangeline Parish, Louisiana (hereinafter referred to as “Subject Agreements”).

The assignment went further to state that Midstates:

accepts this Assignment and Bill of Sale and acknowledges delivery of the Assigned Interests. Assignee hereby assumes and acknowledges responsibility for satisfaction and discharge, at its sole cost, risk and expense, of all obligations and liabilities of Assignor specified in, associated with or accompanying the Assigned Interests, subsequent to the Effective Time hereof, and generally and specifically all obligations relating to the ownership or use thereof.

. One of the agreements Opex had when the assignment to Midstates was made was a joint operating agreement (JOA) with Clovelly. This JOA had been originally signed in 1972 and had passed to both Opex and Clovelly as successors in interest to 12the original parties. The JOA covered all wells and operations confined within parts of Evangeline Parish defined as the “Unit Area.” Clovelly owned a 56.25% working interest in the Unit Area, while Opex owned 43.75% prior to the assignment to Midstates. Clovelly was also appointed operator of all leases within the Unit Area by the JOA. This JOA was never recorded in the Evangeline Parish public records.

Around September 1, 2007, Midstates began conducting exploration and development on lands within the Unit Area without notification to Clovelly. On May 7, 2009, Clovelly filed the current suit seeking a declaratory judgment that Midstates was bound by the terms of the JOA previously held by Opex. Midstates filed a motion for summary judgment in response to the suit. The trial court granted Mid-states’ motion for summary judgment, finding that under the Louisiana Public Records Doctrine, Midstates was not bound by unrecorded contracts, thereby dismissing Clovelly’s claims. From that decision, Clovelly appeals.

Clovelly asserts two assignments of error on appeal, both alleging that the trial court erred in granting summary judgment where there existed genuine issues of material fact.

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. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.
A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B).

Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353.

|sThe trial court relied on the Louisiana Public Records Doctrine in making its decision. The public records doctrine and its basic principles of recordation are set forth in La.Civ.Code arts. 3338 and 3342, “which protect third persons from the effect of unrecorded instruments affecting real estate and attempts to vary the terms or statements of fact in recorded instruments.” 1 Peter S. Title, Louisiana Real Estate Transactions § 8:26 (2d ed.2008). It is undisputed that the JOA in this matter was not recorded in the public records. However, as noted in J & R Enterprises-Shreveport, L.L.C. v. Sarr, 43,364, p. 10 (La.App. 2 Cir. 8/13/08), 989 So.2d 235, 241:

As an exception to our public records law and the doctrine’s protection of third persons who rely on same, a person who by contract assumes an obligation or is bound by contract to recognize it is not a third person with respect to the obligation or right or to the instrument creating or establishing it.

Accordingly, if Midstates assumed the JOA under its assignment from Opex, it can not claim protection as a third person under the Public Records Doctrine. This is clearly a genuine issue of material fact and is indeed in dispute. Clovelly claims that Midstates knew of the JOA when it wrote the language of the assignment declaring “[a]ll operating agreements, [and] joint venture agreements” as assigned interests and before assuming “all obligations” of Opex. Midstates admits that no less than four copies of the JOA were present in the Opex documents viewed as part of its due diligence prior to the assignment. And while Midstates claims the all-inclusive language it used in the agreement was standard “boilerplate” language, as the drafter of the contract, any ambiguities are to be construed against it. Aptaker v. Centennial Ins. Co. of New York, 198 So.2d 188 (La.App. 1 Cir.1967). Clovelly also introduced an affidavit from an Opex employee familiar with the transaction stating that Opex intended to assign the JOA to Midstates as part of the deal. Again, if it ^assumed the JOA as part of the assignment from Opex, Mid-states can not disregard that agreement simply because that document was not recorded in the public records under La.Civ. Code art. 3343. This is a genuine issue of material fact that is in dispute.

Additionally, there remain genuine issues of material fact as to whether Mid-states, at a minimum, tacitly confirmed or ratified the JOA by acting in compliance therewith following the assignment. See La.Civ.Code art. 1843. The affidavits of Paul Gardner and Harold Werner indicate that Midstates may have acted in conjunction with the JOA in its dealings with Clovelly after it assumed Opex’s rights, and there is no evidence in the record before this court contrary to this assertion.

The existence of these genuine issues of material fact dictate that, while Midstates may ultimately succeed at trial on this matter, this case is not presently suitable for summary judgment. Accordingly, we reverse the decision of the trial court and remand this matter for further proceedings in compliance with this decision.

For the above reasons, the decision of the trial court is hereby reversed. We remand for further proceedings consistent with this opinion. Costs of this appeal are hereby assessed against Midstates Petroleum Company.

REVERSED AND REMANDED.

      . citing La. C.C. art. 3343; Bradley v. Sharp, 35,034 (La.App. 2 Cir.8/22/01), 793 So.2d 500, writ denied, 01-2618 (La.12/14/01), 804 So.2d 633


author: PICKETT, J.

text:
    Keith SMITH v. BOISE CASCADE, LLC.
    No. 09-1384.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Jeffrey M. Cole, Plauche, Smith & Nies-et, Lake Charles, LA, for Defendant/Ap-pellee, Boise Cascade, L.L.C.
    John E. Brown, Attorney at Law, Lake Charles, LA, for Claimant/Appellant, Keith Smith.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, J.

|2The claimant, Keith Smith, appeals a decision by a Workers’ Compensation Judge (WCJ) dismissing his claim for weekly benefits and medical care. We affirm the decision of the WCJ.

FACTS

The claimant, Keith Smith, began working for the defendant, Boise Cascade, May 3, 1999. Todd Carlock, the Boise Emergency Medical Technician (EMT), testified, in deposition, that on June 19, 2007, Mr. Smith came to him and told him he wanted to go home to see his doctor because he was having stomach pains. Mr. Carlock stated that Mr. Smith neither mentioned having back pain nor reported any incident at work causing his back to just “seize up.” Subsequently, Mr. Smith applied for short-term disability. He filled out a short term disability claim form on July 6, 2007. On that form, Mr. Smith indicated his last day of work was June 19, 2007; that he left work because of an “illness;” and that, at the time, he had “chest pain and pressure and severe back pain.” The doctor’s portion of the form, which was filled out by Dr. Ariel Ton, noted that in January 2006, Mr. Smith consulted her for “acute back pain” of unknown origin. Mr. Smith also applied for short term disability benefits at that time. The 2006 disability claim form indicates that Mr. Smith’s disability was not due to his employment. On the current disability claim form, Dr. Ton did not attribute Mr. Smith’s 2007 symptoms to any work injury, rather she noted that X-rays showed “degenerative changes at L5-S1 — possible disc degenerative change/herniation of nucleus pulposus.”

Mr. Carlock testified that during 2006 and through July 2007, the claimant, Mr. Smith, neither reported an on the job injury nor did he file for workers’ compensation |8benefits. It was not until his short-term disability benefits were about to expire, that Mr. Smith filed for workers’ compensation benefits.

LAW AND DISCUSSION

On appeal, the claimant seeks review by this court of a decision by a Workers’ Compensation Judge (WCJ) finding that he failed to prove he sustained his burden of proving he was involved in an on-the-job accident resulting in a disabling injury.

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the he/she suffered a work-related accident:

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” _JjLa. R.S. 23:1031(A). An “accident” is defined as an “unexpected or unfor-seen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).
The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed. 1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted):

When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so | ¡.contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 269, 271-72.

Monceaux v. R & R Const., Inc., 05-533, pp. 5-7 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 798-801(emphasis ours), writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317.

On his first visit to Dr. Ton on June 19, 2007, Mr. Smith complained of pressure in his chest which was occasionally accompanied by sharp pain, nausea, and diarrhea. Although Mr. Smith complained of back pain to Dr. Ton on his June 28, 2007 visit, and stated that the pain had been present for that last one to two weeks, he did not relate the back pain to an accident at work; nor did he relate the back pain to work accident on his visits on July 10, July 19, August 2, or October 12, 2007. By the August visit, Dr. Ton had concluded that Mr. Smith was suffering from chronic lower back pain and she referred him to Dr. Troy M. Vaughn, a neurosurgeon. Dr. Vaughn ordered a discogram which he found normal, concluded that Mr. Smith was not a candidate for surgery, and recommended supportive treatment. He opined that Mr. Smith would reach maximum medical improvement in approximately six months.

In her oral reasons for judgment the WCJ stated:

Mr. Smith was quite talkative and was able to explain work duties, etc. He testified that on the date at issue his job was a seventh hand. At trial, he testified he was driving a Bobcat and at some point during the course of the day as he got off the Bobcat he felt a severe, sharp pain in his | Bback. He testified his back/chest started hurting. He told his foreman he was hurting and he was going home.
[T]he court finds that Mr. Smith doesn’t actually know what happened to his back. He had never reported a work accident; in fact, he selected short-term disability benefits and when they ran out, he then filed a workers’ compensation claim. Mr. Smith wants the Court to believe his view of the accident was confusing enough that his inconsistent testimony is believable; however, there are too many inconsistencies. He wants the Court to believe he received no orientation on workers’ compensation cases and he did not understand how to report an accident, but what is most telling is his trial testimony that he was hurt while exiting the Bobcat but other evidence shows he was hurt while pushing heavy carts. Mr. Smith’s testimony alone discredits or casts serious doubt on his version of the worker’s compensation incident. Further, the alleged incident, he did not mention a work incident either to a supervisor or to the on site nurse; in fact, [he] did [ ... ] not mention a work incident to his physician.

Mr. Richard Franklin, who was Mr. Smith’s shift supervisor, testified that Mr. Smith made no report of an accident to him on June 19, 2007. He further stated that Mr. Smith did not complain of back pain at that time nor any time the previous year.

In sum, the WCJ was presented, on one hand, with Mr. Smith’s inconsistent versions of his alleged accident, the facts that he failed to report an accident to anyone at Boise Cascade or to any of his physicians consulted through 2007, and that he applied for short term disability benefits immediately following his ceasing to work. On the other hand the WCJ heard that Mr. Smith started complaining of low back pain on June 28, 2007, and that some doctors, consulted after suit was filed, concluded that Mr. Smith had suffered a work related injury on June 19, 2007 (i.e., Dr. Erich W. Wolf, II).

Considering the record as a whole, especially the conflicting testimony and evidence, and the standard of review — i.e. that “the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the |7record viewed in its entirety” [Mon-ceaux 919 So.2d at 799], we cannot say the WCJ clearly erred in this case.

Accordingly, for the reasons stated, the decision of the Workers’ Compensation Judge is affirmed. Costs of this appeal are assessed to the appellant, Keith Smith.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Roy P. RICHE, Jr. v. Faye Thevenot RICHE.
    No. 09-1354.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Rodney Marchive Rabalais, Rabalais & Roy, Marksville, LA, for Plaintiff/Appellee, Roy P. Riche, Jr.
    Susan Ford Fiser, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Faye Thevenot Riche.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|, Appellant, Faye Thevenot Riche, appeals the trial court’s dismissal of her supplemental demand for partition of the community of acquets and gains against her former spouse, Roy P. Riche, Jr. For the reasons that follow, we affirm.

FACTS

Mr. Riche filed for divorce in March 2006 pursuant to La.Civ.Code art. 103 after over 42 years of marriage to Ms. Riche. Ms. Riche answered the suit, averring that she had left the marital home in September 2005. She demanded interim spousal support and an order from the trial court granting her the use of a van purchased during the marriage, ordering Mr. Riche to produce financial records of his own and of his business, a sole proprietorship operating as Roy P. Riche Insurance Agency and enjoining Mr. Riche from damaging, disposing of or encumbering the property of the community. A judgment was rendered on July 7, 2006, and signed on August 14, 2006, ordering spousal support in favor of Ms. Riche, partitioning a portion of the community property, and reserving the remainder of the community for partition at a later date.

Ms. Riche filed her original petition for partition of the community property in August 2006. Pursuant to La. R.S. 9:2801, the parties were ordered to submit Detailed Descriptive Lists (DDL) within 45 days, and to file traversals of those lists within 60 days of their filing. Ms. Riche filed her DDL on September 20, 2006. That DDL contained a number of items and valuations, including the insurance agency.

Concurrent with the filing of the petition for partition, Ms. Riche issued written discovery to Mr. Riche, including interrogatories, requests for production and requests for admissions intended to ascertain and affix the value of the |2insurance agency. Later, Ms. Riche caused subpoenae duces tecum to be issued to Mr. Riche requiring him to produce financial documents relating to the agency.

Mr. Riche failed to file a DDL until November 9, 2006, when Ms. Riche filed a motion to have hers deemed true and correct. His DDL did not list the insurance agency. He did file a traversal of Ms. Riche’s DDL, in which he traversed her valuation of the agency.

In January 2008, the parties entered into a “Final Settlement of Community.” That document was silent as to the disposition of the insurance agency. Ms. Riche received a number of movables, including $60,000.00 cash. Mr. Riche received a number of movables as well, including the balance in a Capital One bank account in the name of “Roy P. Riche, Jr., d/b/a Roy Riche Insurance.”

Subsequent to the settlement, Ms. Riche retained new counsel. In January 2009, she filed a supplemental petition for partition, in which she asserted entitlement to her community portion of Mr. Riche’s retirement from Baroid, Inc., $70,000.00 received from the sale of the community home; the proceeds of Cottonport Bank account 700004811; $115,436.00 withdrawn by Mr. Riche from two joint bank accounts in 2004; a $14,000.00 loan to Mr. Riche’s brother; and the insurance agency, including business receipts of the agency from the date of termination of the community through trial. Mr. Riche responded with an exception of res judicata, asserting that Ms. Riche was attempting to relitigate matters concluded in the final settlement of January 2008.

At trial of the exception, Mr. Riche introduced, over the objection of Ms. Riche, correspondence between counsel that detailed the negotiations between counsel over her interest in the business. Ms. Riche objected to these on the grounds that they constituted offers of compromise and hearsay. The trial court |soverruled her objections. The trial court ruled from the bench and maintained Mr. Riche’s exception. From this judgment, Ms. Riche filed the current appeal.

ASSIGNMENTS OF ERROR

Ms. Riche assigns as error:

(1) The trial court’s maintaining the exception of res judicata and finding that the parties intended the partition to settle all community property and claims between them so as to foreclose her claim for one-half of the value of the insurance agency and also her claim for an accounting of the business income from the agency; and,
(2) The trial court’s admitting and considering the offers of compromise between counsel, which she claims are inadmissible as . offers of compromise under La.Code Evid. art. 408 and constitute inadmissible hearsay.

ANALYSIS

Actions to partition community property are governed by La. R.S. 9:2801, et seq. Section 2801 provides that either spouse can initiate such an action by filing a motion for partition. Within 45 days of service of this motion, both sides are to submit detailed descriptive lists of all community property, the fair market value of the property, the location of each asset and all community liabilities. La. R.S. 9:2801(A)(l)(a). Within 60 days of service of the last detailed descriptive list, each party is to file a traversal or concurrence of the other’s list. The traversal is then tried either as summary or ordinary procedure, at which the court is to determine the community assets and liabilities and the valuation of the assets. La. R.S. 9:2801(A)(2). The statute also prescribes rules under which the assets are to be partitioned.

In the present matter, the parties entered into a final settlement of the partition. The document provided:

Appearers further declared that they previously settled a portion of the community pursuant to Judgment on Rule rendered on July 7, 2006 Land signed on August 14, 2006, and that they now desire to settle and liquidate the remainder of the community which formerly existed between them and they have agreed to settle the same in the following manner....

and concluded, after a recitation of which property devolved to whom, with:

It is acknowledged by the parties that the net property and cash received by each, after deducting of liabilities assumed by either party, are equal.
The parties hereto do hereby fully acquit, release, discharge and relieve each other from any and all claims whatsoever of any nature and kind by their own separate and paraphernal estates against the former community of ac-quets and gains existing between the parties hereto and being partitioned herein, and against each other’s separate and paraphernal estates. It is the intention of the parties hereto to lay at rest forever, finally, any and all claims they have against each other arising out of or existing during their marriage with respect to use, disposition, sale or transfer of any of them separate and paraphernal funds or property or the use of the community funds on or affecting same, whether same was by purchase, improvement, continuing payments on Mortgages, or otherwise, and the parties do hereby further acknowledge and declare that the property received by each, after deducting liabilities assumed by Roy P. Riche, Jr. is equal in value, that the property has been justly and equally divided without one receiving more in value than the other.
The parties declared that they have read this agreement and understand its contents, and that each is fully satisfied with its provisions. As a result thereof, the parties discharge each other from all other accounting to the community which formerly existed between them, said community being fully settled and liquidated as set forth above.

This agreement was made a judgment of the trial court by a separate judgment signed by the court on January 22, 2008.

Actions, including divorce, are instituted in Louisiana with the filing of a pleadings. La.Code Civ.P. art. 421. Among the limitations on the institution of proceedings is the notion that one must assert all causes of action arising from a transaction or occurrence that is the subject matter of the litigation. La.Code Civ.P. art. 425(A). This rule does not apply to divorce actions under La.Civ.Code arts. 102 and 108, incidental actions under La.Civ.Code art. 105 (custody, child |fisupport, spousal support, injunctive relief, use and occupancy of the family home or community movables or immovables, or use of personal property), actions for spousal educational or training contributions, or actions for partition of community property. La.Code Civ.P. art. 425(B). Ms. Riche asserts that article 425(B) exempts the present matter from the application of res judicata. We disagree.

Article 425(B) applies to the institution of proceedings after the action for divorce is decided. The purpose is to clarify that a party instituting divorce proceedings is not required to include in that action her causes of action for these incidental causes of action. Id., 1991 Comment. Article 425(B), therefore, allows Ms. Riche to file her initial demand for partition of community property; it does not, however, render her supplemental demand immune to an exception of res judicata. That doctrine is governed by other statutes.

Res judicata is codified in La. R.S. 13:4231, et seq. The essence of the doctrine is that a valid final judgment is conclusive between the parties, and all causes of action arising out of the transaction or occurrence that is the subject of the suit are extinguished and merged into a judgment in favor of the plaintiff, or are extinguished and merged into a judgment in favor of the defendant as to preclude subsequent action. This bars the subsequent relitigation of any issue that was actually litigated and determined if that determination was essential to the judgment. The supreme court has articulated a five-step test to determine whether res judicata attaches to a previous judgment:

(1) The judgment is valid;
(2) The judgment is final;
(3) The parties are the same, and appearing in the same capacities;
| fi(4) The cause of action asserted in the second suit existed at the time of the judgment; and,
(5) The cause of action asserted in the second suit arose from the same transaction or occurrence that was the subject of the first litigation.

Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049.

Section 4232 sets forth exceptions to the rule stated in section 4231. One of those exceptions involves actions for divorce, and states in pertinent part:

In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

La. R.S. 13:4232(B). “Settlement,” as employed in the document confected between the Riches, is known in the Louisiana Civil Code as a “compromise.” “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La.Civ.Code art. 3071. A compromise precludes subsequent litigation based on the matter that was compromised. La. Civ.Code art. 3080. Comment (b) to article 3080 provides that the preclusive effect of the article is tantamount to that of former article 3078, which provided that a transaction or compromise had the effect of a thing adjudged; therefore, res judica-ta would attach as though the document were a judgment.

The compromise here was valid. There have been no allegations that any fraud or other vices of consent were present. The compromise met the formal requisite of La.Civ.Code art. 3072. The parties did not lack capacity. La.Civ.Code 17art. 3073. The compromise had a lawful object, the amicable resolution of a community property partition. La.Civ.Code art. 3074.

The judgment was final. La.Civ.Code art. 3080. The parties are the same, and appear in both actions in the same capacities. The cause of action existed at the time of the compromise: the partition of the former community.

The cause of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first: the termination of the community of acquets and gains between the parties.

Ms. Riche asserts that the issue of the valuation and disposition of the agency was never litigated because it was not specifically referenced in the judgment. She maintains that if there is doubt regarding whether it was an issue in the compromise, that doubt should be resolved in favor of allowing the litigation to proceed. See Patin v. Patin, 00-969 (La.App. 1 Cir. 6/22/01), 808 So.2d 673. We agree that when doubt exists over whether her substantive rights have been litigated, those should be resolved in her favor; in the present matter, though, we do not doubt that they were.

Ms. Riche listed the agency in her first detailed descriptive list. The compromise document stated that it was their “desire to settle and liquidate the remainder of the community that formerly existed between them.... ” The Riches did not reserve any issues for litigation at a later date, as they had in the August 14, 2006 judgment. We find that the issues relating to the agency were determined in the compromise, and that the trial court did not err in maintaining Mr. Riche’s exception of res judicata.

|8We need not address Ms. Riche’s second assignment of error. Our decision is in no way influenced by the correspondence between Ms. Riche’s first attorney and Mr. Riche’s counsel.

CONCLUSION

The trial court did not err in maintaining the exception of res judicata filed by Mr. Riche. The compromise Final Settlement of Community was valid and final. The parties were the same in the amended partition demand as in the first, and appeared in the same capacities. The cause of action was identical in both actions. Finally, the issue of the valuation of the insurance agency was an issue actually adjudicated in the compromise. The judgment of the trial court maintaining the Exception of Res Judicata is affirmed. All costs of this appeal are taxed to appellant, Faye Thevenot Riche.

AFFIRMED.