author: THIBODEAUX, Chief Judge.

text:
    Vesta Halay JOHNSTON, et al. v. Susan Halay VINCENT, et al.
    17-391
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Rudie Ray Soileau, Jr., Hunter William Lundy, Lundy, Lundy, Soileau & South, P.O. Box 3010, Lake Charles, LA 70602, Telephone: (337) 439-0707, COUNSEL FOR: Defendants/Respondents-Susan Halay Vincent and Martin Bryan Vincent
    John Michael Veron, J. Rock Palermo, III, D'Ann R. Penner, Veron, Bice, Palermo & Wilson, LLC, 721 Kirby Street, Lake Charles, LA 70601, Telephone: (337) 310-1600, COUNSEL FOR: Plaintiffs/Applicants-Vesta Halay Johnston, Lake Charles Rubber and Gasket Company, LLC
    James David Cain, Jr., Thomas Patrick LeBlanc, Loftin, Cain & LeBlanc, LLC, 113 Dr. Michael DeBakey Drive, Lake Charles, LA 70601, Telephone: (337) 310-4300, COUNSEL FOR: Defendants/Respondents-Gulf Coast Rubber & Gasket and Moby Goodwin
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Candyce G. Perret, Judges.
   THIBODEAUX, Chief Judge.

Vesta Halay Johnston and Lake Charles Rubber and Gasket Co., L.L.C. (LCR & G) filed suit against Susan Halay Vincent, Martin Bryan Vincent, Moby Goodwin, and Gulf Coast Rubber and Gasket, L.L.C. (GCR & G) for defamation and unfair trade practices. Shortly thereafter, the parties entered into a consent judgment to preserve all of the companies' electronic and digital data as well as the parties' smart phones (Preservation Order). Due to the defendants' unsatisfactory responses to discovery, the plaintiffs' filed a motion to comply which the trial court granted (Production Order). The plaintiffs then filed their motion for sanctions against defendants, alleging violations of the Production Order. In their supplemental memorandum, the plaintiffs further alleged that the defendants had violated the Preservation Order by failing to preserve an iPhone 4 that they claimed belonged to Mr. Vincent and was used by him at times relevant to their suit. Taking the matter under advisement, the trial court subsequently denied the motion for sanctions. After the trial court then denied their motion for reconsideration, the plaintiffs sought writs from this court. Finding no manifest error in the trial court's factual conclusion that the plaintiffs failed to prove that the defendants violated either discovery order, we deny the writ.

I.

ISSUES

The plaintiffs ask this court to decide:

(1) whether the trial court abused its discretion when it denied sanctions under La.Code Civ.P. art. 1471 ;
(2) whether the trial court erred when it incorrectly interpreted the Preservation Order and the Production Order; and
(3) whether the trial court correctly applied the four-factor test for sanctions under La.Code Civ.P. art. 1471.

II.

FACTS AND PROCEDURAL HISTORY

This family dispute involves LCR & G, a private, family-held business started in 1957 by Michael Halay, the father of Mrs. Vincent, Mrs. Johnston, and Kathryn Halay Heinen. In 1991, Mr. Halay promoted his son-in-law, Mr. Vincent, to general manager of LCR & G and subsequently named him vice president.

Mr. Halay died in 2004, and his three daughters inherited his estate, including LCR & G, in equal one-third shares. LCR & G was reorganized on June 2, 2005, and the three sisters became managing members. In November 2013, Mrs. Vincent filed a shareholder derivative suit against Mrs. Johnston and Mrs. Heinen, claiming that they were interfering with Mr. Vincent's management of the company. Mr. Vincent was later terminated from LCR & G on September 25, 2014. That same month, Mrs. Vincent filed a petition to dissolve LCR & G, and the company was put in receivership. The receivership was shortly dissolved, and the trial court ordered formal mediation, which took place in October 2014. On October 14, 2014, Mrs. Vincent sold her interest in LCR & G to her sisters for $8,615,000. In early November 2014, the Vincents and Mr. Goodwin opened a new, competing business-GCR & G-and allegedly hired eleven key employees from LCR & G.

On October 14, 2015, Mrs. Johnston and LCR & G sued the defendants, alleging that GCR & G and its principals had engaged in unfair trade practices, breached their contractual and fiduciary duties, and defamed the plaintiffs by, inter alia , taking the plaintiffs' proprietary information, soliciting customers, as well as employees, while still employed by the plaintiffs, and making false public statements about the plaintiffs' financial condition. In part, the plaintiffs sought an expedited contradictory hearing to consider the issuance of an order to preserve and quarantine electronic devices until their computer forensic expert was allowed unimpeded access to copy all data and metadata. The defendants, however, disagreed with the quarantine of their electronic devices. Eventually, the parties agreed upon the Preservation Order at issue herein, and the trial court signed a consent judgment on November 18, 2015, consistent with the parties' agreement.

The Preservation Order required both companies to create and preserve a digital image of all data in an "accessible, usable form":

IT IS ORDERED, ADJUDGED AND DECREED that the parties have a duty to preserve documents, information, data and other electronic or digital communications or compilations of data which are or may be relevant to issues in this litigation. This includes any and all records, notes, memos, letters, photographs, logs, e-mails, ledgers (whether on paper or kept electronically or digitally) pertaining in any way to the allegations of this lawsuit. This includes but certainly is not limited to, any and all business records pertaining the operations of [LCR & G] before October 14, 2015 and to the operations of [GCR & G] from October 15, 2014.
....
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all parties agree to cease and desist from any activities or acts the result of which would inadvertently or intentionally result in the deletion or destruction of materials which may be the subject of a discovery request or may be potentially relevant.

It also required the parties to preserve all records and content pertinent to their claims and defenses on their iPhones:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties agree to take appropriate measures to preserve and prevent from deletion, destruction or alteration any and all records and content pertinent to plaintiffs' claims or defendants' defenses in or on: (1) any and all work electronic mail account(s) to which the parties have access; (2) any and all personal electronic mail account(s) to which Vesta Halay Johnston, Susan Vincent, Martin Bryan Vincent, and Moby Goodwin have access; ... (4) any and all cellular telephones, smart phones, or iPhones used for work by Vesta Halay Johnston, Susan Vincent, Martin Bryan Vincent, and Moby Goodwin; (5) any and all personal cellular telephones, smart phones, or iPhones of Vesta Halay Johnston, Susan Vincent, Martin Bryan Vincent, and Moby Goodwin[.]

GCR & G subsequently retained Kiersted Systems (Kiersted) in Houston, Texas, to create and store its digital image database.

On December 10, 2015, plaintiffs filed their first set of requests for production of documents. Relevant to the issues herein, the plaintiffs sought the production of "all correspondence, emails, and texts messages between any and all of the defendants and any and all employees of LCR & G between August 2014 to December 2014." In response, defense counsel sent a correspondence to the plaintiffs' counsel, dated January 27, 2016, requesting that the plaintiffs provide a list of former and current employees, as well as any other search terms that the plaintiffs would like the defendants to use to search the image database. The defendants referred to that correspondence in their response to the plaintiffs' requests. On March 3, 2016, the plaintiffs filed their first motion to compel, arguing that they "should not have to produce a list of employees. Mr. Vincent has the experience and the background to generate a list of his own."

After hearing the matter, the trial court granted the motion and signed the Production Order on April 6, 2016. Therein, the trial court ordered "the defendants ... to produce all correspondence, emails, and text messages between any and all of the defendants and any and all employees of LCR & G ... between August 2014 and October 2014 without LCR & G producing a list of employees." But, "to the extent that the plaintiffs want GCR & G to produce correspondence, emails, and text messages between any and all of the defendants and any and all employees of LCR & G between November and December 2014, the plaintiffs must first supply GCR & G with a list of said employees."

The plaintiffs then filed their motion for sanctions on June 30, 2016, arguing that "the defendants have refused to comply with this Court's judgment." In their supporting memorandum, the plaintiffs complained (emphasis in original): "To date, not one single email or text message has been produced by the defendants in this litigation." The matter was set for hearing on September 12, 2016.

On August 31, 2016, the plaintiffs conducted the La.Code Civ.P. art. 1442 deposition of GCR & G for which Mr. Vincent appeared as representative (the 1442 deposition). During this deposition, Mr. Vincent was specifically asked about the preservation of an iPhone 4 that he allegedly purchased in February 2013. He explained that he "probably had a 4[,]" but he did not remember when he bought it and did not know what had become of it. It was an iPhone 5 that he used in the time period relevant to the motion to compel-August 2014 through December 2014-and had been using since October 2013. That phone was backed up on his home computer, which was imaged by Kiersted, when he upgraded to an iPhone 6 in March or April 2015. Prior to this deposition, the defendants, through Mr. Vincent, had produced text messages, some of which dated back to July 3, 2014, that were reproduced from the backup of Mr. Vincent's iPhone 5 on his personal computer.

In their reply memorandum of law in support of their motion for sanctions, filed on September 8, 2016, the plaintiffs, for the first time, argued that "Mr. Vincent's failure to preserve the physical iPhone 4 and any backup he made to his computer of the iPhone 4, if they existed on October 12, 2015, is a flagrant and deliberate violation of the Preservation Order." They also claimed that "according to the plain language of the Preservation Order, all of the physical iPhones, whether personal or work, from the years 'pertinent to plaintiffs' claims', were covered by the order. One of plaintiffs' claims is that Mr. Vincent began scheming to start a competing business to destroy Mrs. Johnston and LCR & G as early as 2013." In support of this claim, plaintiffs cited paragraph 14 of their original petition in which they alleged: "Bryan and Moby began planning their new venture, GCR & G, before it was formally incorporated on October 30, 2014."

At the outset of the September 12, 2016 hearing, the plaintiffs again advanced their complaint that the defendants had violated the Preservation Order by not preserving the iPhone 4, and they produced a receipt that reflected the purchase of an iPhone 4 from AT & T for the LCR & G phone number assigned to Mr. Vincent on February 26, 2013. They also produced AT & T bills for LCR & G from August and September 2013, which included the number assigned to Mr. Vincent. However, the company's AT & T bill from October 2013 showed that Mr. Vincent's number was no longer billed to LCR & G. The November 2013 bill revealed the removal of Mrs. Vincent's number as well from the company's AT & T account. From October 2, 2013, and November 2, 2013, respectively, both of the Vincents' numbers were billed by AT & T to Mr. Vincent's personal account.

The testimony of the plaintiffs' forensic expert, Brian Wilson, further established that the direct imaging of an iPhone is the best method of preservation, with the backup being "the only next best" way of preserving the iPhone's data if the phone is not available. "[T]he messages retrieved through an iTunes backup would likely be the same text messages that you would received from a directly connected iPhone." Deleted texts are preserved on an iPhone as long as the messages are on the phone, but over time the deleted messages are overwritten by new data with a phone's continued use. Also, the consumer has no way of controlling what is backed up as it is subject to an Apple protocol, but all texts messages on the phone, even deleted ones, are automatically backed up. If the data on the iPhone is not captured and backed up before the device is used again, however, the chance that it will retain the identical data after use is "astronomically, no." "[A] file inside the backup ... tells you precisely when the backup occurred." Emails are protected and cannot be collected from the phone for security reasons; "you would have to go to the source to get that e-mail."

The deposition testimony of Fred Behning, the Kiersted employee who actually imaged the defendants' digital data, revealed that the defendants did not turn over their smart phones to be directly imaged. Rather, only the computer backups of the iPhones were imaged and preserved. This, the plaintiffs argued, meant that evidence of the text messages was irretrievably lost. Mr. Vincent, in the 1442 deposition, had explained how, at the time of the imaging in November 2015, he did know where his iPhone 5 was, as he had already upgraded to his iPhone 6 by that time. Therefore, only the backup was available. However, he later discovered that his son had the iPhone 5, which Mr. Vincent then retrieved and stored in his desk drawer at his office.

During closing arguments held on October 31, 2016, defense counsel informed the trial court that the defendants were actually producing text messages from the iPhone 5 dating back to October 2013, from the image harvested by Kiersted. The trial court, after studying all the exhibits and its previous orders, concluded that there was no violation of either the Preservation Order or the Production Order. In its signed judgment, dated November 4, 2016, the trial court found:

The evidence shows the Defendants have not responded to discovery as effectively and efficient as the Plaintiffs, but, legally, they are not in violation of any Court order. The information at issue was subject to a preservation order with which the Defendants are still in compliance.

The court also ordered the defendants "to follow the Plaintiffs' model in producing the correspondence, emails, and text messages" to "prevent any further discovery delays."

On November 14, 2016, the plaintiffs filed a motion for reconsideration or rehearing of their motion for sanctions, arguing, relevant herein, that:

the evidence is undisputed that the Defendants violated the Court's preservation order in ... not presenting all iPhones to Fred Behning for preservation and harvest....
....
[And] ordering the Defendants to comply with discovery now-after the evidence has been irretrievably lost-is a vain and useless gesture. As Brian Wilson's uncontradicted expert testimony made clear, it is no longer possible to retrieve the evidence the Court previously ordered the Defendants to produce. As a result of the Defendants' failure to turn over their phones and otherwise preserve the electronic evidence they were ordered first to preserve and then to produce, it is irretrievably lost....
As the Plaintiffs attempted unsuccessfully to explain at the closing arguments on October 31, 2016, the only sanction that can remedy the Defendants' failure to comply with the Court's orders on discovery is an order of default. Anything less rewards the Defendants for failing to preserve and produce the critical evidence that would prove the Plaintiffs' claims. (Emphasis in original)(footnotes omitted).

The defendants opposed the motion and filed a motion to strike and/or dismiss. The trial court denied the motion to strike after a hearing on January 12, 2017. During the hearing, the plaintiffs sought to admit exhibits reflecting subsequent discovery activities and evidence that was not available at the time of original hearing. In light of the defendants' objection to the exhibits, the motion for reconsideration was pretermitted until February 24, 2017, with the parties to submit additional briefing on the exhibits. A second hearing was held on March 15, 2017, during which the trial court agreed that it was undisputed that Mr. Vincent had an iPhone 4, but that "it's also undisputed he had an iPhone 5 from '14 on which was pre separation." The trial court further questioned counsel as to whether "we know" that it was in existence at the time of the preservation order, to which plaintiffs' counsel replied: "That's a judgment call you've got to make." While remarking on the possibility of the iPhone 4's existence, the trial court found that "[t]here is no probability there." Though the plaintiffs "have a lot of circumstantial evidence[,]" the trial court ultimately concluded that they had not carried their burden of proof. Accordingly, the trial court denied the motion for reconsideration or rehearing, reasoning:

Just in summation, I believe while the plaintiffs' argument is persuasive, I do not find that they have met their burden. The court is going to note in its earlier denial that the preservation order was a general, broad order to protect information from being lost. There was no specific protocols put in place; and I agree that the defendants could have done a much better job; but what they did, did not violate the order, at least is the way the court reads it as having been rendered.
....
Specifically the arguments on reconsideration have planted additional seeds that may or may not grow into fruition. Until that can be established, the court will not sanction the defendants.
....
The lost phone that cannot be accounted for also is just [an allegation]. Nothing else has been established.... Some have been substantiated with circumstantial support but insufficient at this stage for the court to sanction.
The court is looking at specific allegations and violations and do[es] not find they are present and will find for the defendants at this time.
....
Common sense dictates that while technical violations of discovery may not be found here, one cannot help but raise a questioned eye as to the operation, the credibility, and the good-faith efforts to be forthcoming on all matters by the defendants. And, in summary, too many coincidences does not a good argument....
I'm not going to say that you would be prohibited from revisiting these areas as things may or may not be discovered. There is other things that have been alluded to that may bring forth that information; but at this stage, I do not feel that I overcome my initial determination.

The trial court signed its judgment on March 19, 2017. The plaintiffs are now before this court on writs seeking review of this ruling, denying their motion for reconsideration or rehearing.

III.

TIMELINESS

As an initial matter, the defendants argue that the plaintiffs' writ application is not timely and should be dismissed. Because the Louisiana Code of Civil Procedure does not provide for a motion to reconsider an interlocutory order, the defendants argue that the motion for reconsideration filed herein did not suspend the time for applying for supervisory writs. However, the trial court allowed the motion for reconsideration or rehearing to go forward, with the admission of two new exhibits and extensive arguments from both sides. Thereafter, the trial court rendered a new judgment "from which [the plaintiffs] could seek supervisory review from this court." Indus. Pipe, Inc., v. Plaquemines Par. Council , 12-1348, p. 7 (La.App. 4 Cir. 9/14/12), 100 So.3d 896, 900. Because the plaintiffs' writ application was received in this court within the time designated by the trial court, we find that the writ is properly before us.

IV.

STANDARDS OF REVIEW

Our "discovery articles grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or to obey an order compelling discovery." Garza v. Int'l Maint. Corp. , 97-317, pp. 2-3 (La.App. 3 Cir. 10/29/97), 702 So.2d 1021, 1023. Given this wide discretion, a trial court's "ruling should not be reversed absent an abuse of discretion." McWilliams v. Exxon Mobil Corp. , 12-1288, p. 5 (La.App. 3 Cir. 4/3/13), 111 So.3d 564, 570, writ denied , 13-1402 (La. 11/8/13), 125 So.3d 451. Prior to imposing sanctions, however, the trial court must first determine whether a party or his attorney has failed "to comply with discovery orders." Horton v. McCary , 93-2315 (La. 4/11/94), 635 So.2d 199, 203. As a factual finding, this determination is subject to the manifest error or clearly wrong standard of review. Rosell v. ESCO , 549 So.2d 840 (La.1989).

V.

LAW AND DISCUSSION

"A party to litigation may apply to a court for an order compelling discovery when another party fails to answer properly propounded interrogatories or requests for production. La.Code Civ.P. art. 1469(2)." Garza , 702 So.2d at 1023. Louisiana Code of Civil Procedure Article 1471 sets forth the sanctions available for a party's failure to comply with such an order:

A. If a party or an officer, director, or managing agent of a party or a person designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Subparagraphs (1), (2), and (3) of this Paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.
B. Absent exceptional circumstances, a court may not impose sanctions under this Article on a person or party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
C. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Interpreting the above provisions, our supreme court in Horton , 635 So.2d at 203 (citations omitted) (alterations in original), explained:

There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery. Refusal to comply with court ordered discovery is a serious matter. Trial judges must have severe sanctions available to deter litigants from flouting discovery orders.
The Louisiana rule, like Federal Rule 37, allows the trial court to sanction a disobedient party with dismissal or a default judgment. Both dismissal and default are draconian penalties which should be applied only in extreme circumstances. Because the sanctions of dismissal or default involve property rights, those sanctions are generally reserved for the most culpable conduct.
Federal district courts consider four factors before granting a default judgment: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party's trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.
Dismissal and default are generally reserved for those cases in which the client, as well as the attorney, is at fault. The record must support "a finding that the failure was due to ... willfulness, bad faith, or fault."
Although the federal courts allow a final judgment on the merits as a default sanction, at least one Louisiana court has interpreted LSA-C.C.P. art. 1702 to require proof of a prima facie case.

The party seeking sanctions bears the burden of proving, by a preponderance of the evidence, a violation of the discovery order or breach of a duty imposed therein. See Joyner v. Wear , 27,631 (La.App. 2 Cir. 12/6/95), 665 So.2d 634, writs denied , 96-40, 9642 (La. 2/28/96), 668 So.2d 370 (burden of proof by a preponderance of the evidence for imposition of sanctions for frivolous pleadings). It logically follows, therefore, that the plaintiffs bore the initial burden of proving, by a preponderance of the evidence, that the defendants failed to comply with the Preservation Order and/or the Production Order.

In its denial of the plaintiffs' motion for reconsideration or rehearing, the trial court specifically found that the plaintiffs had not proven, by a probability of the evidence, that the iPhone 4 even existed when the Preservation Order was signed and so could not prove that the defendants had violated the discovery order by failing to preserve it. The burden to provide a justifiable reason for their failure to preserve the iPhone, therefore, never shifted to the defendants. Although the plaintiffs now argue that the defendants had a duty to preserve the iPhone 4 from the time Mrs. Vincent filed her initial shareholder derivative suit against her sisters in November 2013, and that the trial court erred in failing to read the Preservation Order as incorporating this continuing duty, the issue before the trial court was whether the plaintiffs had proven, by a preponderance of the evidence, a violation of the discovery orders as issued by the trial court. The issue presently before this court is whether the trial court manifestly or clearly erred in finding that the plaintiffs have not proven that the defendants violated either order.

After reviewing the evidence, we cannot say the trial court erred in its finding. Relevant herein, the Preservation Order required the defendants "to take appropriate measures to preserve and prevent from deletion, destruction or alteration any and all records and content pertinent to plaintiffs' claims or defendants' defenses in or on" their work or personal smart phones. The plaintiffs' primary concern in seeking the Preservation Order as to the iPhones was the destruction or deletion of pertinent text messages that could help prove their claims. Along these lines, the trial court, in response to plaintiffs' motion to compel, ordered the defendants to produce all correspondence, emails, and text messages between them and any employee of LCR & G from August 2014 through October 2014.

As regards the iPhone 4, all the evidence shows is that Mr. Vincent used an iPhone 4 in 2013 that was purchased by LCR & G, on February 26, 2013, for the company phone number assigned to Mr. Vincent as reflected in the AT & T receipt submitted by the plaintiffs. Mr. Vincent has always maintained, however, that he upgraded to an iPhone 5 when he moved his phone number to his personal account in October 2013. The AT & T bills submitted by the plaintiffs lend support for this claim in that they reflect how the Vincents' phone numbers were removed from LCR & G's account in October and November 2013. The undisputed assertions made to the trial court regarding the production of text messages from October 2013, harvested from the backup of Mr. Vincent's iPhone 5 on his personal computer, lend even further support for the defendants' position.

In this manner, all the text messages from August 2014 through October 2014 sought by the plaintiffs in their motion to compel and ordered to be produced by the trial court should have theoretically been preserved in the Kiersted image of the backup of Mr. Vincent's iPhone 5 taken in November 2015. As defense counsel explained during his closing arguments on October 31, 2016, the defendants are producing, in spreadsheet fashion, text messages from this time period and all the way back to October 2013, from that image, albeit in a less than timely or forthcoming manner.

Moreover, the plaintiffs conceded in memorandum to the trial court that the defendants' failure to preserve the iPhone 4 violated the Preservation Order, "if it existed on October 12, 2015." But it was the plaintiffs who had to prove that the iPhone 4, more probably than not, existed on that date and had not been lost long before then, as the defendants have staunchly maintained. The evidence, however, does reasonably show that they failed to prove either the existence of the iPhone 4 or its use by Mr. Vincent beyond the February 2013 receipt and the September 2013 AT & T bill, respectively.

Regardless, at this time the plaintiffs have not proven the irretrievable loss of the text messages which, they argue, would warrant the imposition of the sanctions sought. Rather, the undisputed assertions made to the trial court demonstrate that the defendants are producing text messages back to October 2013. All the messages exchanged prior to October 2013 were made from an LCR & G phone on an LCR & G phone number issued by AT & T, which the plaintiffs should have the authority to request from AT & T.

Accordingly, we find no manifest or clear error in the trial court's finding that no technical violation of the discovery orders has been proven at this time. With that said, however, we agree with the trial court that the evidence produced does show that the defendants have not been forthcoming, efficient, or effective in their discovery practice so far.

As our supreme court has recognized, in Hodges v. S. Farm Bureau Cas. Ins. Co. , 433 So.2d 125, 129 (La.1983) :

The basic objectives of the Louisiana discovery process are (1) to afford all parties a fair opportunity to obtain facts pertinent to the litigation, (2) to discover the true facts and compel disclosure of these facts wherever they may be found, (3) to assist litigants in preparing their cases for trial, (4) to narrow and clarify the basic issues between the parties, and (5) to facilitate and expediate the legal process by encouraging settlement or abandonment of less than meritorious claims.

The defendants' reluctance and delay in responding to discovery herein thwart these objectives, as well as offend the very purpose behind our discovery laws. We note with great disapproval that the defendants did not produce a single text message until after the plaintiffs filed their motion for sanctions. And when the messages were finally produced, they were piecemeal and did not correspond with the AT & T phone records. Rather, the messages and emails were admittedly hand-selected and reproduced by Mr. Vincent from his computer. The defendants did not even search their Kiersted database until after the September 12, 2016 hearing. While neither the Preservation Order nor the Production Order was explicit as to the manner or method of preservation or production, the trial court order requiring the defendants' compliance with the plaintiffs' model of production made in its original denial of sanctions hopefully will remedy any deficiencies in these orders.

Nevertheless, La.Code Civ.P. art. 1462(E) acknowledges the issues that have arisen with the recent advent of electronic discovery and grants the courts discretion to appoint a special master to aid in the production of such discovery:

If the requesting party considers that the production of designated electronically stored information is not in compliance with the request, the requesting party may move under Article 1469 for an order compelling discovery, and in addition to the other relief afforded by Article 1469, upon a showing of good cause by the requesting party, the court may order the responding party to afford access under specified conditions and scope to the requesting party, the representative of the requesting party, or the designee of the court to the computers or other types of devices used for the electronic storage of information to inspect, copy, test, and sample the designated electronically stored information within the scope of Articles 1422 and 1425.

By appointing a designee, the court can direct the manner and scope of the search while ensuring the protection of the responding party from undue burden and disclosure of protected information. In this way, the court facilitates the requesting party's access to relevant and discoverable information and, at the same time, protects the responding party from unwarranted exposure, both of which are even more necessary now as discovery continues to move in an electronic and digital direction.

Pursuant to the Preservation Order herein, both parties preserved their electronic and digital data. That data is now contained in image databases, which, under the provisions of La.Code Civ.P. art. 1462(E), can be "inspect[ed], cop[ied], and test[ed]" by a designee of the court for good cause shown. Although the exhibits and hearings in this matter have not demonstrated a technical violation of the discovery orders, they have shown good cause for the appointment of such a designee, particularly given the voluminous nature of the electronic discovery in this case, the hostility evident in the correspondence between counsel for both parties, and the outright reluctance of the defendants to cooperate effectively in the production of their electronic data. In light of this, we believe that the appointment of a special master to oversee the electronic discovery in this matter is warranted.

VI.

CONCLUSION

For these reasons, we find no manifest or clear error in the trial court's finding no technical violation of the discovery orders herein. With the strong recommendation for the appointment of a special master, we affirm the trial court's judgment, denying the plaintiffs' motion for reconsideration or rehearing.

Costs are assessed to the Defendants/Respondents.

WRIT DENIED .

      In their second set of requests for production, filed on July 21, 2016, the plaintiffs extended the relevant timeframe back to August 2013.

      Prior to October 2013, the phone number and the phone associated with that number belonged to LCR & G, and any messages archived by AT & T for that number up until that date should legally be accessible by the company. During the 1442 deposition, plaintiffs' counsel explained how her "client has requested text messages from AT & T [ ] [t]o answer your discovery requests [and] AT & T has agreed to send us those text messages.... They can ... produce things that have been deleted from the phone." Counsel then informed the defendants that she had a completed authorization form for them "limited by date from October 1st, 2013 through December 31st, 2014." The time-sensitive nature of such an authorization was also stressed.

      Moreover, according to the expert trial testimony, the backup of the iPhone 5 contains a file that tells "precisely when the backup occurred." The plaintiffs make much of the defendants' failure to produce their actual iPhones for imaging in November 2015. However, their expert also testified that deleted messages are overwritten with continued use. Therefore, it logically follows that, if the backup occurred in March or April 2015, as Mr. Vincent testified to in the 1442 deposition and which the date file should prove, then the backup, created at least six months before suit was filed, would contain messages that could very well have been overwritten by November 2015 with the phone's continued use seemingly by Mr. Vincent's son.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    Monojit BANERJEE v. Shalini BANERJEE
    CA 17-245
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Richard Damian Mere, Attorney at Law, P.O. Box 3301, Lafayette, LA 70502-3301, (337) 269-5555, COUNSEL FOR PLAINTIFF-APPELLANT: Monojit Banerjee
    Shalini Banerjee, 2034 Sobha Moonstone Apts., Kempapura Maid Rd., Hebbae Kem, Bangalore, India, 560024, DEFENDANT-APPELLEE
    Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
   PERRET, Judge.

Appellant, Monojit Banerjee ("Mr. Banerjee"), a Louisiana resident, is seeking custody of his children who currently reside with their mother, Shalini Banerjee ("Mrs. Banerjee"), in India. Both parents became United States citizens through the naturalization process, and their children are United States citizens by way of birth. This matter came before the trial court on a petition for divorce and custody of minor children filed by Mr. Banerjee. The trial court denied the child custody petition for lack of subject matter jurisdiction after applying the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). We agree with the trial court's finding of no jurisdiction for the reasons that follow and now affirm.

ISSUE FOR REVIEW

This court must decide whether Louisiana has subject matter jurisdiction over this child custody matter.

FACTUAL AND PROCEDURAL HISTORY

Mr. and Mrs. Banerjee were married in 1994 in Bangalore, India. The couple moved to the United States, to Waterloo, Iowa, and had two children, born in 2005 and 2007. The parties and their children resided in Iowa until 2010. In 2010, the family moved back to Bangalore, India, residing there together until June 14, 2014, when Mr. and Mrs. Banerjee physically separated. Mr. Banerjee remained in India until March 2015. At that time, it is alleged Mrs. Banerjee threatened Mr. Banerjee with physical violence, court action, and criminal penalties. Mr. Banerjee, therefore, fled to the United States, taking up residence and employment in Lafayette, Louisiana. The children remained in India with Mrs. Banerjee and have never resided in the state of Louisiana.

Mr. Banerjee filed for divorce on March 4, 2016, under La.Civ.Code article 103(1). Mrs. Banerjee remains in India with the children, and allegedly refuses to allow Mr. Banerjee to see them. Mr. Banerjee informed the trial court he continues to pay for rent, school, and living expenses for his children. Mr. Banerjee also made a trip to India in May of 2016, in the hopes of seeing his children, but alleges Mrs. Banerjee would not permit it. Mrs. Banerjee allegedly filed a domestic violence lawsuit in India against Mr. Banerjee in 2014, but, according to Mr. Banerjee, no resolution has been reached. However, Mr. Banerjee alleges custody proceedings have never been filed in India.

Counsel for Mr. Banerjee contacted the United States Department of State and the United States Embassy in India for assistance with visitation, but counsel was advised neither agency could facilitate visitation unless Mr. Banerjee obtained a custody judgment from a United States court.

The trial court heard testimony and received evidence at the hearing on Mr. Banerjee's petition for divorce and custody of minor child. Though the trial court granted the divorce, the trial judge indicated he believed there was an issue with jurisdiction over the child custody issue. At the conclusion of the hearing, the trial court left the record open for jurisprudence and statutory law from India to be submitted. Thereafter, Mr. Banerjee submitted a "Memorandum in Response to Issues Raised by This [the trial court] Court" on June 7, 2016.

The trial court reviewed the information submitted by Mr. Banerjee and the review conducted by the hearing officer, and then determined "India's jurisdictional standards are in substantial conformity with the UCCJEA and the Court does not find that the child custody laws of India violate fundamental principles of human rights." Additionally, the trial court concluded India takes into consideration where the children and the parties have the most substantial contacts and, specifically, that, in this case, that the children and Mrs. Banerjee have never been to the State of Louisiana. The trial court also discussed how India, not Louisiana, would qualify as the children's Home State under the UCCJEA. Mr. Banerjee now appeals the jurisdictional ruling to this court.

STANDARD OF REVIEW

Whether a court has subject matter jurisdiction is reviewed on appeal under the de novo standard of review. Chamberlin v. Chamberlin , 14-1322 (La.App. 3 Cir. 4/22/15), 176 So.3d 1118, writ denied , 15-0972 (La. 6/19/15), 172 So.3d 1093 ; Otwell v. Otwell , 10-1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232.

LAW AND DISCUSSION

Louisiana courts have jurisdiction over a minor's status in a "proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state." La.Code Civ.P. art. 10(A)(5). However, a second tier of inquiry into the jurisdiction over custody issues exists under the UCCJEA, La.R.S. 13:1801, et seq. Even if a Louisiana court has subject matter jurisdiction, that jurisdiction must be declined based on limitations imposed by the UCCJEA. Albitar v. Albitar , 16-167 (La.App. 5 Cir. 6/30/16), 197 So.3d 332. The UCCJEA's limitation on jurisdiction was designed to avoid jurisdictional competition among states, to "assur[e] that custody litigation takes place in the state with which the child and his family have the 'closest connection' and where relevant evidence is located, promot[e] a stable home environment, deter[ ] abductions, and encourag[e] cooperation among the courts of different states." Id. at 345, quoting Stelluto v. Stelluto , 05-74, p. 8 (La. 6/29/05), 914 So.2d 34, 39.

Additionally, the UCCJEA covers custody issues involving foreign courts and countries. Louisiana Revised Statutes 13:1805 orders Louisiana courts to treat a foreign country as if it were a state. Therefore, when a foreign country makes a custody determination "under factual circumstances in substantial conformity with the jurisdictional standards of this Act," Louisiana must recognize and enforce that determination. La.R.S. 13:1805. But, "if the child custody law of [the] foreign country violates fundamental principles of human rights," Louisiana is not required to apply the UCCJEA. La.R.S. 13:1805(C).

Mr. Banerjee suggests this court has jurisdiction for two reasons. First, Mr. Banerjee argues Louisiana has jurisdiction under the UCCJEA because a foreign court has refused or failed to take jurisdiction over this custody matter. Second, he argues Louisiana is not required to apply the UCCJEA because India's laws violate fundamental principles of human rights by effectively denying Mr. Banerjee contact with his children. We address both arguments below.

Jurisdiction under the UCCJEA.

The UCCJEA provides the grounds for a state to assert jurisdiction in a custody case:

A. Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child's home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
(3) All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under R.S. 13:1819 or 1820; or (4) No court of any other state would have jurisdiction under the criteria specified in Paragraph (1), (2), or (3) of this Subsection.
B. Subsection A of this Section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

La.R.S. 13:1813.

Section A(1) of La.R.S. 13:1813 affords jurisdiction to the "home state" of the child. Home State is defined as the "state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding[.]" La.R.S. 13:1802. Mr. Banerjee, in his Memorandum to the trial court, acknowledged this section does not apply in this case. We agree. According to the definition of Home State in La.R.S. 13:802, the children's Home State would be India. The family moved to India in 2010 and the children have continued living there through the present. Moreover, the Banerjee children have never resided in Louisiana.

Section A(2) of La.R.S. 13:1813 affords jurisdiction to the court of another state only when another court does not have jurisdiction or the Home State declines jurisdiction after finding another forum more appropriate, and subsections (a) and (b) are met. Similarly, section A(3) may afford a court, other than the Home State, jurisdiction if "all courts having jurisdiction have declined" to exercise that jurisdiction finding another forum more appropriate. La.R.S. 13:1813(A)(3).

Mr. Banerjee suggests that La.R.S. 13:1813"does not contemplate a situation where the foreign court has refused or failed to take jurisdiction over the child custody matter." We disagree and consider how other courts, who also implement the UCCJEA, have applied this language in similar factual scenarios.

In the California case of In re A.C. , 13 Cal.App.5th 661, 220 Cal.Rptr.3d 725 (2017), a California court concluded it had subject matter jurisdiction although it was not the Home State according to the UCCJEA. The mother, who was born in California, but lived in Mexico, was deported from Mexico back to California along with her two children at the border. San Diego police officers arrived at the border after the mother and children were detained, because they received a call that the mother might be unfit to care for the children. A petition was filed by the San Diego County Health and Human Services Agency because they believed the children were at risk of harm due to the mother's inability to care for them. The mother asserted only a court in Mexico could have jurisdiction over the matter, as she and her children had been residing in Mexico prior to their deportation, and her children had Mexican citizenship. The California district court made good faith attempts to contact the Mexican courts to discover whether they intended to exercise jurisdiction over the custody matter. The California court received no response. After determining the children and mother had substantial contacts with California, i.e. they previously lived in California and had family members residing in California who could provide care for the children, the California court held it had subject matter jurisdiction under the UCCJEA. Specifically the court stated:

Mother also asserts the court could not exercise subject matter jurisdiction under section 3421, subdivision (a)(2), because there is no evidence showing that the children and at least one parent had significant connections to California other than mere physical presence and that there is [no] substantial evidence available in California concerning the children's care, protection, training, and personal relationships. However, Mother fails to acknowledge and dispute evidence in the record showing that Mother and the children had significant connections to California and that there is substantial evidence in California regarding the children's care, protection, training, and personal relationships. (§ 3421, subd. (a)(2).)

Id. at 738-39. Unlike In re A.C. , this court is unaware of any attempts by the trial court to contact India's courts, or by Mr. Banerjee, to discover whether India's courts would exercise jurisdiction in this matter.

A New York court in Gharachorloo v. Akhavan , 67 A.D.3d 1013, 889 N.Y.S.2d 256 (2009), also refused to exercise jurisdiction where the children were born in New York, but had resided in Iran for several years prior to the father commencing custody proceedings in New York.

Although Mr. Banerjee has not been served with notice of any custody proceedings in India, India is the Home State of the children and has not declined jurisdiction. There is no evidence in the record to show that India has declined jurisdiction in this custody matter, finding Louisiana the more appropriate forum. Mr. Banerjee suggests otherwise and argues India failed to take jurisdiction over the matter, but also admits neither he nor Mrs. Banerjee has sought the assistance of the Indian courts as to child custody matters. However, this court notes that Mr. Banerjee curiously asks the court to consider the delays that have taken place in India "in the case at bar." The only proceedings Mr. Banerjee has informed this court of in India are those related to domestic violence.

Additionally, Mr. Banerjee has not proven that the children have substantial connections to Louisiana. Louisiana Revised Statutes 13:1813(2) requires that when a Home State declines jurisdiction, the child must have significant connections with this state prior to Louisiana having jurisdiction. The children have never lived in or visited Louisiana. The children's only connection to Louisiana is that their father has taken up residence in this state. On the other hand, the children have lived in India since 2010, more than five years before this action was commenced in Louisiana. Their mother lives in India. They also have relatives of both sides of their family in India. Though Mr. Banerjee testified the children do not have extended family in India, he did state his mother, father, and sister resided there on the date of the trial court hearing, and that Mrs. Banerjee's father and brother live in India. Furthermore, Mrs. Banerjee did not single-handedly decide to uproot her children to India. The family, Mr. Banerjee included, made the decision to move to India in 2010, and resided there together as a family for several years. This fact is a consideration in India's determination of jurisdiction, as seen in material provided by Appellant in the record. For instance, Appellant provided the trial court with the Supreme Court of India's decision in Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243 (India) in which India denied jurisdiction after the child was removed from the U.K. by the mother, who unilaterally decided to move the child. Also, see those cases cited therein by India's Supreme Court and Judgment of Sole Custody, Archana Bansal v. Sanjeev Gopal, No. 02-4869-M3 (La. 15th Judicial District Court 11/14/02), provided by Appellant.

The trial court summarized its application of the UCCJEA in its Reasons for Ruling as follows:

In this case, the children and their mother have never been in the State of Louisiana. Further, the father has only lived here for approximately one (1) year prior to instituting these proceedings. Under the UCCJEA, Louisiana is not the home state of the minor children. On the other hand, India would qualify as the home state under the statute. Neither minor child has a significant connection with the State of Louisiana, nor is there substantial evidence available in this state concerning the children's care, protection, training and personal relationships. Also, no other courts having jurisdiction have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the children. See R.S. 13:1813.

After a review of the record and the above discussed jurisprudence, we agree with the trial court's determination that Louisiana does not have jurisdiction under the UCCJEA in this case.

Non-Application of UCCJEA under La.R.S. 13:1805(C).

Mr. Banerjee also asserts on appeal that the UCCJEA does not apply in this case. Louisiana Revised Statutes 13:1805 states:

A. A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Subparts A and B of this Part.
B. Except as otherwise provided in Subsection C of this Section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this Act shall be recognized and enforced under Subpart C of this Part.
C. A court of this state need not apply this Act if the child custody law of a foreign country violates fundamental principles of human rights.

Louisiana Revised Statutes 13:1805 mandates that Louisiana courts treat a foreign country as if it were a state of the United States, unless the foreign country's child custody laws violate fundamental principles of human rights. This statute went into effect on August 15, 2007.

Prior to the effective date of La.R.S. 13:1803, the Uniform Child Custody Jurisdiction Act (UCCJA) governed and a similar provision allowed a court to apply the UCCJA to the international arena. La.R.S. 13:1722 (2006)(repealed 2007). This provision stated:

The general policies of this Part extend to the international area. The provisions of this Part relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

Amin v. Bakhaty , 01-1967, p. 10 (La. 10/16/01), 798 So.2d 75, 83. However, the UCCJA at the time of this decision only provided that the trial court could consider a foreign nation to be a "state," but it did not mandate the court to do so.

Under the UCCJA, the Louisiana Supreme Court in Amin , upheld Louisiana's jurisdiction over custody, even though Louisiana was not the child's Home State, by concluding there was no other "state," as defined by the UCCJA, and that Louisiana jurisdiction was in the best interest of the child. The UCCJA at the time defined a "state" as "any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia." Amin , 798 So.2d at 81, fn 11.

In reviewing the best interest of the child, the supreme court quoted the trial court's reasoning:

When making an award of custody, this Court is compelled to consider Ahmed's best interest. See La. C.C. arts. 131 and 132. The only other forum that could possibly determine custody would be Egypt. However, the Egyptian Court is not compelled to consider the minor child's best interest. Dr. Bakhaty would have the absolute right to guardianship, as well as the right to physical custody. This Court believes that a parent's interest in a relationship with his or her child is a basic human right. State in Interest of A.C., 93-1125 (La. 10/17/94), 643 So.2d 743. However, it is most likely that Ms. Amin will be deprived of a relationship with Ahmed if she is forced to return to Egypt to pursue custody or visitation rights, particularly in light of the fact that she has been convicted of removing the minor child from the territory of Egypt without Dr. Bakhaty's permission. Since the minor child has always lived with his mother, it would not be in his best interests to deprive him of a relationship with her at his age. Therefore, this Court believes that it is in Ahmed's best interest that this Court assume jurisdiction under the provisions set forth in La. R.S. 13:1702(A)(4). An analysis of the provisions of the UCCJA, the statute's stated purpose, and review of other jurisdictions applying the UCCJA leads this Court to the same conclusion.

Amin , 798 So.2d at 82. The supreme court further investigated the discretion of the trial court to consider a foreign country a state, and reviewed jurisprudence from Louisiana and other jurisdictions. The supreme court noted:

In exercising that discretion, the courts' recognition of foreign courts generally turned on the following issues: (1) whether the child custody laws of the foreign jurisdiction and those of the United States were similar, particularly in light of considering the best interests of the child; (2) whether foreign custody decrees existed prior to initiating any proceedings in the reviewing court; (3) whether any of the parties were U.S. citizens; and (4) whether the parties received adequate notice and a chance to be heard in the foreign forum.

Id. at 84. Furthermore, the most prevalent consideration was whether the foreign jurisdiction "applied the best interests of the child in its application of their child custody laws ." Id. (Emphasis added). In Amin , the supreme court affirmed the trial court's decision to decline recognizing Egypt as a "state" "based on the fundamental differences between Egypt's child custody laws and Louisiana's child custody laws. In Louisiana, custody in all cases will be determined by a court in the best interest of the child." Id. at 85 (citations omitted). However, "custody laws in Egypt follow strict guidelines, irrespective of the best interest of the child." Id. at 85. For instance an expert in the case testified that Egypt follows Islamic law, which under such the concept of "guardianship" provides the father with the absolute right to the guardianship and physical custody of the minor child. Id. Additionally, after divorce, the mother's physical custody is generally only allowed if the father lives nearby and can continue to exercise control. Id.

The trial court in this case also reviewed Amin , and asked Mr. Banerjee to provide information explaining why Mrs. Banerjee's rights and benefits in relation to the children would be greater than his in India. Specifically, the trial court stated, "But the reason they did not apply this [the UCCJEA ] is because it did not give the mother any basic civil rights in term of custody of her children. So if it's the same thing in reverse, that information would be very helpful to the Court." The trial court issued Reasons for Ruling which, in part, reviewed the information provided at its request:

After reviewing all of the information submitted by MR. BANERJEE's counsel, which has been filed into the record of this proceeding, the Court finds that India's jurisdictional standards are in substantial conformity with the UCCJEA and the Court does not find that the child custody laws of India violate fundamental principles of human rights.

After reviewing a recent pronouncement from India's supreme court in the case of Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243 (India), the trial court concluded:

It is clear that the legal principles applied by the court in India are very similar to the provisions of the UCCJEA. More particularly, the India court looks to where the children and the parties have the most substantial contacts.

Furthermore, the trial court found that India's courts are not reluctant to hear child custody matters involving non-citizens, as suggested by Mr. Banerjee. We agree. The articles and material provided by Mr. Banerjee suggest Indian courts will decline jurisdiction over custody matters where children have been brought to India by one parent from a jurisdiction where they have resided for some period of time, and where, in many of those cases, custody proceedings were already initiated before the parent moved the child. That is not the case here, where both parties and the children moved as a family to India in 2010. We also agree with the trial court's conclusion that India's child custody laws do not violate fundamental principles of human rights, finding only that there is a rebuttable presumption in favor of the mother when children are under the age of five, which has no application in the current case.

Although Mr. Banerjee suggests we can consider whether India's laws in general violate fundamental principles of human rights, we disagree. Louisiana Revised Statutes 13:1805(C) (emphasis added) clearly considers the foreign country's child custody laws only, stating, "A court of this state need not apply this Act if the child custody law of a foreign country violates fundamental principles of human rights."

Finally, Mr. Banerjee argues, as a non-citizen, he would not have access to Indian Courts. However, the articles and materials Mr. Banerjee provided do not show Indian courts are reluctant to hear custody matters involving non-citizens. Instead, those materials suggest the Indian courts' refusal to hear those cases was based on the fact that one parent made a unilateral decision to bring the child to India, or a foreign court already issued a custody order and the child was removed in violation thereof. After a reading of the record and law we agree with the trial court's above summarizations and conclude that India's child custody laws do not violate fundamental principles of human rights.

CONCLUSION

Based on the reasons recited above, we find that Louisiana does not have subject matter jurisdiction over this child custody matter. The judgment is affirmed. Costs of this appeal are assessed to Appellant, Mr. Banerjee.

AFFIRMED.

      Defendant, Mrs. Banerjee, contemporaneously responded to the petition for divorce and child custody in an e-mail to the court, dated August 2, 2016. The trial court forwarded the correspondence to Mr. Banerjee's counsel on August 19, 2016 and it was filed by the clerk of court on September 21, 2016. The e-mail addressed several allegations made in Mr. Banerjee's petition as well as made several allegations against him. The e-mail also indicated there may be filings related to the children in the Indian court system. While this might be considered a pro se Answer or Opposition, and although the trial court acknowledged receipt of the e-mail in its Reasons for Ruling, there is nothing in the trial court's written reasons or judgment to suggest the e-mail was accepted as an official pleading or as evidence by the court. Therefore, we will not consider the e-mail on appeal.

      Mr. Banerjee testified that, at the time of the hearing, he was in the process of sponsoring his parents and sister to come to the United States. Mr. Banerjee also testified he has other family living in the United States.

      La.R.S. 13:1701 and 13:1722 were repealed by Acts 2006, No. 822, section 2, effective August 15, 2007. The UCCJEA was introduced by House Bill No. 60. The proposed UCCJEA was recommended by the National Conference of Commissioners on Uniform State Laws in 1997 and, at the time of the House Bill, had been adopted in 42 states.

      The trial court states the UCCJEA was applied in Amin , but we note that it was the UCCJA at the time.


author: KYZAR, Judge.

text:
    STATE of Louisiana v. Reokenski Vodise THOMAS aka Reokenski Thomas
    17-526
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Richard A. Spears, 101 Taylor Street, New Iberia, LA 70560, (337) 367-1960, COUNSEL FOR DEFENDANT/APPELLANT: Reokenski Vodise Thomas, a/k/a Reokenski Thomas
    Trent Brignac, District Attorney, Timmy J. Fontenot, Marcus L. Fontenot, Nicole F. Gil, Assistant District Attorneys, Thirteenth Judicial District, P. O. Drawer 780, Ville Platte, LA 70586, (337) 363-3438, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The defendant, Reokenski Vodise Thomas, appeals his convictions for first degree murder, a violation of La.R.S. 14:30(A)(3), and attempted first degree murder, violations of La.R.S. 14:27 and La.R.S. 14:30(A)(3). For the reasons herein, we affirm the defendant's convictions but set aside his sentences and remand the matter for resentencing.

DISCUSSSION OF THE RECORD

The defendant was indicted by a grand jury for the first degree murder of Joseph John, in violation of La.R.S. 14:30(A)(3), when he had the specific intent to kill or inflict great bodily harm upon more than one person, namely the victim and his brother, Derricke John, and for the attempted first degree murder of the victim's brother, in violation of La.R.S. 14:27 and 14:30(A)(3), when he had the specific intent to kill or inflict great bodily harm upon the same two persons. The State then moved to consolidate the trial of the defendant with that of the co-defendant, Hilton Wilson, who was indicted on the same day as the defendant on the same charges.

Following an eight-day jury trial, the jury returned guilty verdicts as to each defendant, finding both guilty of the first degree murder and attempted first degree murder of the victim and his brother, respectively. Thereafter, the defendant was sentenced to serve life in prison for the first degree murder conviction and twenty-five years for the attempted first degree murder conviction, with each sentence to be served without the benefit of parole, probation, or suspension of sentence and the sentences to run concurrently. On appeal, the defendant raises two assignments of error: (1) The trial court erred in failing to grant a mistrial for two statements made by a witness regarding other crimes committed by the co-defendant in contravention of La.Code Crim.P. art 770(2) ; and (2) Based on the evidence produced at the trial, the jurors could not reasonably have concluded that the defendant was guilty beyond a reasonable doubt.

Sufficiency of Evidence

In his second assignment of error, the defendant asserts that the evidence presented at trial was insufficient for the jury to conclude that he was guilty of the crimes of first degree murder and attempted first degree murder beyond a reasonable doubt. Thus, we will address this assignment of error first.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt.
When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

State v. Hearold , 603 So.2d 731, 734 (La.1992) (footnote omitted).

In applying the sufficiency standard set out in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we also recognize the following:

A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman , 95-0154 (La. 11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave , 95-2328 (La. 4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon , 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

"First degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person." La.R.S. 14:30(A)(3).

Specific criminal intent is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La.Rev.Stat. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the defendant's actions and the circumstances of the transaction. State v. Maxie , 93-2158, (La. 4/10/95), 653 So.2d 526, 532. Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. State v. Seals, 684 So.2d 368, 373 (La.1996) (citing State v. Williams, 383 So.2d 369 (La.1980) ; State v. Procell , 365 So.2d 484 (La.1978) ).

State v. Robinson , 02-1869, p. 8 (La. 4/14/04), 874 So.2d 66, 74, cert. denied , 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La.R.S. 14:27(A).

During this eight-day trial, the jury heard extensive testimony and was presented with much physical, photographic, and documentary evidence. Derricke John testified that he and his two brothers were at their home at 120 East Washington Street in Ville Platte on the night of the shooting. He stated that he and Joseph, who he referred to as "Smoke," were outside under the carport, while his other brother, Erricke, was asleep inside the home. Derricke testified that suddenly he and Joseph were being shot at as multiple gunshots rang out and that they both began to run. He stated that Joseph fell as he ran and that he began to run the other way into an alley adjacent to the house. He said that he could hear and feel the bullets fired in his direction. He further stated that shortly prior to the shooting he saw a green Ford Taurus pass in front of the house. Derricke testified that after the shooting stopped he located his brother in the ally and found him bleeding from a gunshot to his abdomen. He stated that he ran into the house to wake Erricke, telling him that "Smoke" was shot. He said that he then ran to the Ville Platte Police station to report the shooting rather than call 911, stating that he thought it would be quicker since the station was only about a minute away if he hurried.

Derricke testified at trial that he was able to identify the defendant as one of the shooters, although he admitted not telling the authorities this on two other occasions. He also testified as to an incident earlier in the evening on Laran Street in Ville Platte, where the defendant fired a handgun at him and his brothers as they drove away from the location of a verbal altercation with the defendant. He was cross-examined extensively by counsel for both defendants as to these prior inconsistent statements and other potentially impeaching factors.

Erricke John, the brother of the victims, testified that he was home with his brothers at the time of the shooting. He stated that he was inside asleep at the time, but was awakened by Derricke telling him that "they" had shot Smoke. He stated that he went outside, saw his brother, and then waited until the authorities arrived. He said that he did not witness any of the events of the shooting because he was sleeping. He further testified about the Laran Street incident and stated that the defendant shot at them earlier as they pulled away in their vehicle following a verbal altercation.

Latasha Thomas testified that earlier on the night of the murder she arrived at her home on Laran Street, at approximately 7:00 p.m., and observed two vehicles partially blocking the driveway of her home. She stated that she saw Joseph John, who she also referred to as "Smoke," along with his brother Erricke. She said that she asked them to move their vehicles and they acknowledged her. Ms. Thomas testified that she then saw the defendant walk out toward the street with a handgun. She stated that she asked him not to shoot because her daughter was at home, but he fired the gun anyway in the direction of the Johns' vehicle as they drove away. She said that she called the police to report the shooting and retrieved a shell casing discharged from the defendant's gun, which she gave to an officer upon his arrival.

Officer Lucas Griffen, of the Ville Platte Police Department, testified that he responded to the Laran Street shooting incident and recovered a shell casing from Ms. Thomas that she retrieved after the defendant fired it in the direction of the Johns' vehicle. That casing was later turned over to Detective Pat Hall, the lead Detective on the murder investigation.

Officer Cody Savoy, formerly of the Ville Platte Police Department, responded to the shooting on East Washington Street at approximately 11:30 p.m. and assisted with securing the crime scene He testified that he also responded to the scene of the reported 7:00 p.m. shooting incident on Laran Street. He reported that a shell casing was recovered by Officer Griffen from Ms. Thomas from that crime scene.

Officer Kyeishia Evans, of the Ville Platte Police Department, testified that she and Officer Griffen arrived at the scene on East Washington Street just after Officer Savoy. She stated that she stayed with the victim in the ally, where he was found bleeding from the gunshot wound to his abdomen. She said that he was alive but unresponsive. She stated that she held him and prayed for him until emergency medical personnel arrived to transport him to the hospital, where he later died from his wounds.

Dr. Terry Welke, a forensic pathologist, testified that he performed the autopsy on the victim and that the cause of death was a gunshot wound to the abdomen. He stated that he removed a bullet fragment from the victim's fatal wound, which he thought was a nine millimeter caliber slug, and turned it over to Detective Pat Hall. He stated that he also discovered a bullet fragment in the victim's forearm, which was later identified as a .25 caliber bullet, but concluded that this was not recent or related to the victim's death.

Bernadine Arvie, who lives in the area of the shooting on East Washington Street, testified that she and Lunel Robinson were at her home on the night of the shooting and that they heard multiple gunshots outside at approximately 11:30 p.m. She stated that they went outside onto her porch and observed two persons running away from the direction of the shooting. Ms. Arvie testified that she could not identify the persons running. Mr. Lunel Robinson also testified that he saw two men running away from the scene shortly after they heard multiple shots fired. He stated that one of the men was taller than the other. However he said that he was unable to identify the men as it was dark outside.

Joshua Joseph testified that after 10:30 p.m., on the night of the shooting, he saw the defendants get out of a Green Taurus automobile in an area close to the scene of the shooting on East Washington Street. He stated that he saw the two men walk away from the vehicle and, as he walked on, he heard gunshots coming from East Washington Street. Mr. Joseph testified that when he looked in the direction of the gunfire, he saw two men shooting towards a house, and he specifically identified the defendant as one of the shooters. Although he saw both men shooting in the direction of the murder scene, he was unable to identify the other shooter.

Lashaine Semien, the former girlfriend of the co-defendant, testified that she was with the co-defendant at their home on the night of the shooting, until he left just after 10:00 p.m. She testified that when he returned he told her he had been with the defendant and that he had probably shot someone he referred to as "Smoke," which was John Joseph. He told her that both he and the defendant shot at the victim.

Detective Pat Hall, of the Ville Platte Police Department, testified that he was the lead investigator on the John murder case. In processing the crime scene, he stated that he located nine shell casings from the position where the shooters fired from across the street at the victim's house, at 120 East Washington Street. He said that two bullet fragments were recovered, one from a vehicle located in the area between where the casings were found and the carport area of the victim's house and another bullet was found in the driveway. Detective Hall testified that he also collected DNA swabs from a fence, which appeared to have been touched as it was covered with dew. He stated that he thought the fence was jumped by the perpetrators while fleeing the scene. He said that he also retrieved two bullet fragments from the coroner's office, which were removed from the victim,. Detective Hall testified that Officer Griffen also gave him the shell casing from the Laran Street shooting, thinking it to be related. The casings, bullet fragments, and DNA samples, as well as reference samples from both defendants, were turned over to the Louisiana State Police (LSP) Crime Lab

Rodney Daigle, a former detective with the Ville Platte Police Department, testified that he worked the homicide the night it occurred, and he corroborated the testimony of Detective Hall, as did Connie Lamke, the secretary of the Ville Platte Police Department Investigations Division, who assisted in taking photographs of the crime scene, as directed by Detective Hall.

Cheryl Swearingen, an expert in forensic firearms analysis for the LSP Crime Lab, testified that the nine shell casings found at the crime scene were fired from the same nine millimeter firearm. She stated that one of the casings recovered from the vehicle was not shot from this firearm. Ms. Swearingen testified that the casing from the earlier Laran Street shooting was fired from the same firearm as the nine casings recovered from the murder scene. The bullet fragment recovered from the vehicle located in the line of fire between the shell casings and the victim's house matched one of the fragments recovered from the body of Joseph John during the autopsy. However, the other bullet recovered from the victim's arm was fired from a .25 caliber weapon.

Paul Berry, an expert in DNA analysis with the LSP Crime Lab, testified that the DNA swabs, recovered from the fence by Detective Hall, contained a combination of DNA from two persons. However, he stated that the technology utilized by the LSP Crime Lab was not advanced enough to learn any further information, so he sent the data to a more advanced lab, Cybergenetics, for further testing.

Dr. Mark Perlin, a DNA expert and the founder of Cybergenetics, a company specializing in the computer interpretation of DNA from a statistical perspective, testified that he analyzed the DNA forwarded to him by the LSP Crime Lab. He opined that as to one of the two sources, it was 157 million times more probable to be the co-defendant's DNA than any other black male. As to the other source, he opined that it was 340 million times more probable to be the defendant's DNA than that of another random black male.

The defendant argues that the evidence presented to the jury was insufficient to support his guilty verdicts for first degree murder and attempted first degree murder. He argues that the testimony of many of the witnesses was incredulous or otherwise not believable. We disagree. Despite extensive cross-examination of virtually all of the fact witnesses, including the police officers, by counsel for both defendants, it is clear that the jury accepted the witnesses' testimony and the resulting evidence in finding the defendant guilty of both crimes. It is not our role to second guess the trier of fact as to issues of credibility.

The evidence as presented established that the defendant shot at the victims multiple times as they stood in front of their home on East Washington Street. The defendant was identified by both Derricke John and Joshua Joseph as being one of two individuals firing towards the house. The defendant was also identified as having fired at the victims earlier in the evening, using the same weapon as the one used during the murder. The co-defendant's former girlfriend testified that he told her after the shootings that he and the defendant both shot at "Smoke." The DNA evidence recovered from the scene puts both defendants there around the time of the crimes. Ms. Arvie and Ms. Robinson both testified that they saw two persons running away from the scene of the shooting in this same general area shortly after the gunfire stopped.

The evidence taken as a whole clearly establishes that the defendant shot multiple times at both victims as they were under the carport of their 120 East Washington Street home; thus, establishing that he had the specific intent to kill more than one person. First degree murder, as defined in La.R.S. 14:30(3), includes "those murderers who formed an intent to commit multiple killings and who did in fact create the risk of multiple deaths through a single act or a closely related series of acts that resulted in at least one death." State v. Williams , 480 So.2d 721, 727 (La.1985). Further, "specific intent to kill can be inferred from someone pointing a gun at close range and pulling the trigger." State v. Tassin , 536 So.2d 402, 411 (La.1988), cert. denied , 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989). In addition, the State is not required to prove that the defendant actually pulled the trigger of the gun that fired the fatal shot, but only "that defendant acted in concert with his co-perpetrators, that defendant had the specific intent to kill, and that one of the aggravating elements enumerated in La.Rev.Stat. 14:30 was present." State v. Anthony , 98-406, p. 13 (La. 4/11/00), 776 So.2d 376, 386, cert. denied , 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000).

Accordingly, we find that there was sufficient evidence, when viewed in the light most favorable to the prosecution, to conclude the defendant's guilt beyond a reasonable doubt.

Other Crimes Evidence

In his first assignment of error, the defendant argues that the "Trial Court should have granted a mistrial when a witness mentioned two separate allegations of other crimes that the defendant committed." The statements complained of are from the testimony of Ms. Simien, co-defendant's former girlfriend. During her testimony, she made statements regarding two different alleged other crimes incidents related to the co-defendant. The other crimes incidents at issue appear in the record as follows:

BY THE STATE:
Q. Ms. Semien how many pages in that statement?
A. Eight.
Q. There's eight pages right. I'm gonna ask you to review page two or it has the words SK at the bottom. You recognize that?
A. Yes.
Q. Can you read what Mr. Krueger ask [sic] you?
A. "So Hilton Wilson told you after he got back to the house that he possibly shot somebody and that it was he and Kenski Thomas."
Q. What was your reply?
A. Yes.
Q. Later on in the statement y'all started talking about potentially another incident right on Easter do you remember that?
A. Yes.
....
Q. Page seven is he asking you about stuff that happened on Good Friday and Easter Sunday?
A. Yes.
Q. On page eight the part that Mr. Richard showed you is that your reply to what happened on Good Friday and Easter Sunday?
A. Yes.

The State argues, and we agree, that this line of questioning referred back to previous questioning of this witness by defense counsel who first elicited the information during cross-examination, as reflected in colloquy from earlier in her testimony, as follows:

BY MR. RICHARD:
Q. Is this one of the statements that you reviewed on page page [sic] eight of nine of the statement you gave on June 18th 2014 to Agent Krueger?
A. This is something else. This is another incident.
Q. Okay. So it's another incident whenever Agent Krueger asked and from that point at some point and [sic] time he says they went back and shot at the people that were shooting at them and you said "no he didn't tell me that that's the story that was around town and he got charged for that".
A. Okay that was another incident this this [sic] not the the the [sic] murder trial. This [is] something that happened before.
Q. And that's one of the statements you reviewed prior coming [sic] here today? Did you make more than one statement on June 18th to Agent Krueger?
A. No.
Q. That's the only statement you recall making right?
A. What you just showed me that was dealing with a drive by shooting that happened on Easter Sunday.

The next incident involving the co-defendant discussed by this witness appears as follows:

BY MR. FONTENOT, Attorney for State:
Q. Ms. Semien why did you and defendant Wilson break up[,] why was the relationship ended?
A The last time the relationship ended was because he went beat up another woman while he was driving my car and he went to jail for that. That was the last time the relationship ended.

As clearly reflected from the transcript, and as admitted by the defendant in his argument, neither of these statements involved him directly. Each of the other incidents referred to by Ms. Semien only involved the co-defendant.

In State v. Burdgess , 434 So.2d 1062, 1065 (La.1983) the supreme court discussed when other crimes evidence not otherwise admissible must result in a mistrial as opposed to situations where the trial court has the discretion to admonish the jury to disregard such, as follows:

Louisiana Code of Criminal Procedure Article 770 provides in part that:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion color or national original, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
In other situations where prejudicial remarks are made before the jury, the trial judge may use his discretion to admonish the jury to disregard the remark rather than grant a mistrial. La.Code Crim.P. art. 771. Since mistrial is such a drastic remedy, unless mandated by article 770, it should only be used in those situations which might result in substantial prejudice to the defendant. State v. Smith , 430 So.2d 31 [ (La.1983) ] ; State v. Tribbet , 415 So.2d 182 (La.1982) ; State v. Belgard , 410 So.2d 720 (La.1982).

In this instance, the trial court denied the defendant's motion for a mistrial, concluding that the statements were not made by the State or another court official. We agree. Each of the statements complained of were the statements of the witness Ms. Semien, not statements by the State or any other court official. As such, no mandatory mistrial was warranted under the provisions of La.Code Crim.P. art. 770. The trial court further declined to order a discretionary mistrial and offered to admonish the jury to disregard any statement concerning the other incidents as provided for under La.Code Crim.P. art. 771. Counsel for each defendant declared that they did not wish for such an admonishment to be given.

We conclude that the trial court did not abuse its discretion in failing to grant a mistrial as to the defendant herein. Neither of the statements complained of involved the defendant. In State v. Davis , 08-165, pp. 15-17 (La.App. 5 Cir. 7/29/08), 993 So.2d 295, writs denied , 08-2188, 082200 (La. 5/1/09), 6 So.3d 810, 811, the fifth circuit considered a motion for mistrial as to statements relating to a person or persons other than the defendant:

Defendant first complains that evidence of the threats his family made against Williams at the first trial was admissible other crimes evidence. Williams explained that he refused to testify at defendant's first trial in 2005 because defendant's family scared him. Defense counsel objected, arguing that Williams' testimony suggested that defendant and his family were involved in intimidation, which was inadmissible evidence of other crimes. She also argued that she had no Prieur notice of those crimes.
....
The trial judge was correct in that the prosecutor made no reference to other crimes that were committed or allegedly committed by the defendant. Instead, the prosecutor's questions made reference to other crimes that were committed or allegedly committed by defendant's family. La.Code Evid. art. 404(B)(1) only prohibits evidence of other crimes or bad acts committed by a defendant. Therefore, we find that the evidence in question was admissible and, therefore, the trial court did not err by overruling defense counsel's objection to it.
....
A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Smith , 04-340, p. 5 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. Id.

Further, in State v. Prudhomme , 532 So.2d 234, 238 (La.App. 3 Cir. 1988), writ denied , 541 So.2d 871 (La.1989), we refused to reverse the trial court's decision to admonish a jury to disregard a police officer's testimony regarding the alleged bad acts of one co-defendant at the trial of the other rather than grant a mistrial, reasoning as follows:

The facts of the instant case closely resemble State v. Prudholm , 446 So.2d 729 (La.1984), in which case a police officer alluded to other charges against a co-defendant ... in an unresponsive answer to a question posed by defense counsel. Defendant ... moved for mistrial, maintaining that the reference to other charges against [the co-defendant] cast him ... in an unfavorable light. The trial court denied the request for mistrial and admonished the jury to disregard the testimony. The Supreme Court affirmed the decision of the trial court, finding that the admonition was sufficient to assure the defendant a fair trial.

In this instance, the statements complained of were not made by or directly elicited by the State or other court official. Further, the incidents complained of were not acts of this defendant, but those of the co-defendant. Thus, the trial court correctly applied the provisions of La.Code Crim.P. art. 771, rather than La.Code Crim.P. art. 770, to these statements. Although the trial court ruled that it would indeed instruct the jury to disregard any reference to the complained of evidence, each defendant waived such an admonition. As such, there was no error in the trial court's ruling.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find two errors patent.

Absence of Counsel at Sentencing Hearing

The trial court minutes reflect that the defendant was unrepresented during his sentencing, and the transcript of the sentencing hearing confirms this fact. At a previous pre-sentencing conference, it was decided that an alternate attorney would stand in at sentencing for the defendant's attorney, who had a scheduling conflict. The transcript reflects that the attorney designated to appear for sentencing failed to appear and that the trial court proceeded with the sentencing without his presence. The record further reflects that the defendant did not waive his right to counsel at any time prior to his actual sentencing.

In State v. Joseph , 14-1188, pp. 3-4 (La.App. 3 Cir. 5/6/15), 164 So.3d 389, 391, this court addressed the error of the defendant being unrepresented during his resentencing:

Pursuant to the Sixth Amendment of the United States Constitution, a defendant has a right to counsel at every critical stage of criminal proceedings, including a resentencing hearing. State v. Dupas , 94-1264 (La.App. 3 Cir. 3/6/96), 670 So.2d 667. "Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be set aside." Id. at 669 (quoting State v. Flowers , 598 So.2d 1144, 1146 (La.App. 1 Cir.1992) ). In determining whether a defendant has knowingly and intelligently waived the right to counsel, a trial court must conduct "a meaningful inquiry" with the defendant regarding the waiver and must advise the defendant "of the dangers and disadvantages of self-representation." State v. Hayes , 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86. Alternatively, this court has found that a defendant's conduct can constitute an implied waiver of the right to counsel. State v. Batiste , 96-526 (La.App. 3 Cir. 12/11/96), 687 So.2d 499, writ denied , 97-174 (La. 6/30/97), 696 So.2d 1003 ; State v. Mitchell , 580 So.2d 1006 (La.App. 3 Cir.1991), writ denied , 613 So.2d 969 (La.1993). Such conduct includes dilatory tactics by a defendant, for example, obtaining multiple continuances by refusing to accept court-appointed counsel and failing to secure other counsel. Id. Additionally, a criminal defendant is entitled to court-appointed counsel at each stage of the proceedings if indigent and facing charges punishable by imprisonment. La. Const. art. 1, § 13.

Thus, a defendant has a right to counsel at sentencing and resentencing, unless that right has been knowingly and intelligently waived by the defendant.

Here, the defendant appeared at sentencing and was sentenced without the presence of his counsel. There was no waiver of record of the right to counsel. As such, the sentences imposed herein are vacated, and the matter is remanded to the trial court for resentencing.

Consolidation of Indictments for Trial

On October 29, 2015, well in advance of trial, the State moved to consolidate the trial of the defendant with that of the co-defendant, alleging that the two defendants "participated in the same act or series of acts constituting First Degree Murder; thus, they could have been properly charged in a single charging instrument[,]" and that "[t]he trials of each case would involve essentially the same issues and law enforcement and expert witnesses." The motion was granted that same day. There is no indication in the record that this action was agreed to by either of the defendants, nor is there any indication of record of any objection by the defendants to the consolidation of the cases for trial. The record reflects that both the defendant and the co-defendant were tried together for the murder of Joseph John and the attempted murder of Derricke John and that both were convicted.

In State v. Mathews , 00-2115, p. 14 (La.App. 1 Cir. 9/28/01), 809 So.2d 1002, 1013, writ denied , 01-2873 (La. 9/13/02), 824 So.2d 1191, and writ denied , 01-2907 (La. 10/14/02), 827 So.2d 412, the first circuit refused to reverse the conviction of one defendant wherein the separately indicted cases against the two defendants were erroneously consolidated for trial, holding as follows:

Code of Criminal Procedure Article 706 prohibits the consolidation of separate indictments for trial without the consent of the affected defendants. Designating the act of consolidation as one of amending does not remove the joinder from the strictures of article 706. Although the comments to article 706 explain that the prosecution may avoid obtaining the consent of all of the defendants by charging them in a single bill of indictment, the single bill cannot be a subsequent bill that resulted from the mere consolidation of two prior separate bills of indictment. See La.Code Crim. P. art. 706, Official Revision Comment b.

Here, however, the defendant did not timely object to the improper joinder or consolidation. "The objections of misjoinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment." La.Code Crim.P. art. 495. Absent a contemporaneous objection, the right to raise the issue is waived. La.Code Crim. P. art. 841 ; see State v. Peters , 298 So.2d 276 (La.1973) (on rehearing). Furthermore, this defect is not jurisdictional, nor does it constitute a denial of due process. Id. Accordingly, because the defendant failed to object to the consolidation of the cases for trial, that error was waived.

DISPOSITION

For the reasons stated herein, we affirm the convictions of the defendant for first degree murder and attempted first degree murder. However, we vacate the defendant's sentences and remand the matter to the trial court for resentencing consistent herewith.

CONVICTIONS AFFIRMED; SENTENCES VACATED; AND REMANDED FOR RESENTENCING.

      The defendant was not represented by counsel during sentencing, as will be discussed below.