author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Taurean Lamar THOMAS, Appellant
    No. 52,617-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    THE HATCH LAW FIRM, LLC, By: Christopher Hatch, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, WILLIAM J. EDWARDS, SAMUEL S. CRICHTON, CHARLES K. PARR, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, PITMAN, and STEPHENS, JJ.
   PITMAN, J.

After a jury trial, Defendant Taurean Lamar Thomas was found guilty of second degree battery and possession of a firearm by a convicted felon. He was sentenced as a fourth-felony offender to life imprisonment without benefit of probation, parole or suspension of sentence on the battery conviction, and to 20 years, also without benefits, on the conviction for possession of a firearm by a convicted felon. For the following reasons, Defendant's convictions and sentences are affirmed.

FACTS

On June 29, 2017, Defendant was charged by amended bill of information with the second degree battery of Ronald Reddix in violation of La. R.S. 14:34.1, and possession of a firearm or carrying a concealed weapon by a convicted felon in violation of La. R.S. 14:95.1. Both offenses were committed on June 22, 2016. A jury trial was held from September 25-27, 2017. The following evidence was adduced at trial.

Reddix's sister, Debra Reddix, testified that she received a call on June 22, 2016, from someone who told her that her brother was hurt and that she would find him at the house next door to her Aunt Sharon's house on E. 74th Street, Shreveport, Louisiana. Debra testified that upon arriving at her aunt's house, she saw her aunt in her yard, along with her next-door neighbor, Anzio Lee, and her brother seated behind the wheel of his green Ford F150 truck "laid over and I guess unconscious."

Debra further testified that she tried to wake up her brother by shaking him and that Reddix would mumble and then pass out again. She stated that Lee asked her to move her brother's truck from his driveway, so she drove it a block away. When she opened the door, her brother's head "kind of fell out" and that was when she saw a knot the size of an orange with blood around it at the base of the back of his head. She called 911, but her brother refused the aid of emergency services when the ambulance arrived. The police also came to the scene and attempted to speak to Reddix, but he was incoherent. She testified that Reddix's girlfriend, Michelle McCoy, took him to the hospital. She stated that she had no knowledge of Reddix having hearing issues prior to the June 22, 2016 incident.

McCoy testified that she had been in a relationship with Reddix for about 11 years. She stated that she received a call from Debra, who informed her that something had happened to Reddix. She confirmed that she met Reddix and Debra at E. 75th Street and that, at that point, Reddix was in the passenger side of his truck with "his head down, his eyes closed. All he would say was yes or no." She saw that Reddix's nose was bleeding. She testified that when she took Reddix to the hospital, she also saw that he had a bloody swollen knot on his head.

Officer Leona Gray of the Shreveport Police Department ("SPD") testified that she responded to a call on June 22, 2016, at E. 75th Street, where she met Reddix and McCoy. She witnessed that Reddix had a large knot on the back of his head "the size of a baseball" and that his speech was sluggish. Since the knot on the back of his head was so large, she suggested to McCoy that she take Reddix to the hospital, even though he had declined treatment by EMS.

Reddix testified that he knew Defendant and owed him about $ 20. He also testified that he knew Lee from the neighborhood and that he went to Lee's house on E. 74th Street to "hang out" on June 22, 2016. He stated that he had beer and whiskey prior to arriving at Lee's house, but that he had not used drugs for at least a few days prior to June 22, 2016. He confirmed that he drove a green Ford F150 truck. He stated that he first saw Defendant outside Lee's house in the front yard, where Defendant mentioned the debt he owed him and that it became a "hostile environment." He stated that he "had been drinking" and had "probably said some bad things." He further stated that he wanted to defuse the situation.

Reddix further testified that Defendant was about five to six feet away from him and that he tried to leave because he felt outnumbered by Defendant and Lee. He stated that no punches were thrown; but when he tried to get back to his truck, the "lights went out." The next thing he remembered was the emergency personnel, but did not remember getting into the truck or how he got to the hospital. He stated that it was morning when he went to Lee's house around 9:00-10:00 a.m., and he did not get to the hospital until nighttime. He was in ICU for two days. He also testified that he lost hearing in his right ear and could hear only ringing in that ear. He acknowledged that his memory was incomplete regarding the June 22, 2016 incident and admitted that he may have pushed Defendant in order to put distance between the two.

Lee testified that he had known Reddix for about 15 years and that he had known Defendant for six to eight months prior to the June 22, 2016 incident. The prosecutor asked Lee questions about his prior criminal history, which he denied remembering. This history included a conviction for felony theft in 1991, armed robbery and a conviction for the manufacture/distribution of a Schedule II CDS in 2003. He claimed that he had "caught a little light stroke, man, so my memory just ain't all that for (sic ) way back when." When questioned if he had any other criminal convictions, he replied, "I don't want to lie to you. I don't know what you're talking about."

Lee further testified that on the evening of June 22, 2016, Defendant arrived at his house first and Reddix arrived about 20 minutes later. Defendant confronted Reddix about the money he owed him, saying, "I want my money," and "Where my money?" Lee testified that Reddix then "swung on" Defendant, but he ducked and was not struck. Defendant then punched Reddix three to four times in the face. Lee stated, "Ronald Reddix had looked at me and then he looked at defendant. He fell on his butt and then he throwed his head back real hard." Lee admitted that when he gave a statement to SPD officers on June 27, 2016, he told them something different, i.e., that Reddix tried to grab Defendant's shirt and then Defendant struck Reddix four times with a closed fist. He also told them that before Defendant struck Reddix, he said, "Give me my money, bitch" and that Reddix intentionally "threw his head into the street."

Lee further testified that he asked Reddix if he needed an ambulance, and Reddix said no. He stated that after Reddix was on the ground, he and Defendant recorded a video, which he claimed was his own idea. When asked if he told SPD it was Defendant's idea to record the video, he said he did not remember. When asked if he told SPD that he believed he could not do anything about the video because Defendant had a gun, he replied, "Well, yeah."

The state introduced a video into evidence which depicted Defendant standing in the driveway of a home between two cars, with a third car and a green truck parked in the driveway behind him. Reddix appears in the video, lying down on the driveway, and he seems to be unconscious when the video begins. Defendant is standing in front of Reddix, rapping, "Why you make me do that?" Defendant also states, "I'm the real deal, Evander Holyfield." Defendant looks around and then pulls what appears to be a handgun from the rear waistband of his shorts, shows it to the camera and states, "I got iron." At one point in the video, Defendant turns to Reddix and states, "Why you make me do you this? I just got out. He duckin' me. I hurtin' bad. I need my money." Defendant continues to rap and states, "Hit you on your chin and make you holler, bruh." Near the end of the video, Reddix starts to move while lying in the driveway. Defendant is seen smiling and laughing in the video.

Lee further testified that Defendant did not take anything out of Reddix's pocket and confirmed that he gave the same statement to the SPD. Defendant asked him for "two soups" and left after he got them. He also stated that he and his neighbor, Sharon, helped Reddix up and put him in his truck. Reddix was "a little dazed" and "in and out." He added that when he and Sharon were helping Reddix to his truck, Reddix fell on his head twice-"Every time he fall, he just fall straight on his head."

Lee denied that Defendant stated that he might shoot Reddix while Reddix was unconscious. When asked, "Do you recall telling [SPD] that the reason you didn't call the police is because [Defendant] could have shot you," Lee responded, "I don't remember." When asked, "Did you tell [SPD] that the reason you did not help [Reddix] is because, quote - that you, quote, can't fight no gun," he responded, "I don't remember, sir." He testified that it was his idea to put the video on Facebook and when asked why he wanted to do that, he stated, "I caught a little light stroke, and I don't remember too much ... Only thing I can remember really is what had happened in the yard. And I don't remember why."

Lee affirmed that he approached Reddix and asked him to drop the charges against Defendant. He stated, "I was asking him why did he-is he pressing charges when he know he started it." He confirmed that he posted messages on Facebook, stating, "Man knocked out in my yard yesterday, died this morning," "Playing with people money," and "Rob him, too." When asked what he meant by the "rob him, too" Facebook message, he responded, "I don't know. Didn't nobody get robbed or nothing." He advised that he gave his statement to officers at the SPD, and he was under the impression that he could have been arrested.

SPD Sergeant Kevin Strickland testified about the interview he had with Lee on June 27, 2016, regarding the incident between Reddix and Defendant. Parts of the audio recording of the interview were played in court. In that recording, Lee stated that Defendant approached Reddix asking about money. Reddix then grabbed Defendant's shirt, and then Defendant hit Reddix about four times and Reddix fell to the ground. Lee stated that he did not know if Reddix hit his head then or when he was transferred to his truck. He saw that Defendant had a gun when he was fighting with Reddix. He stated that a video was made just after the incident and that it was Defendant's idea. He further stated that while Reddix was unconscious in the driveway, Defendant said he would shoot Reddix and then he went through Reddix's pockets and took about $ 8.00. He further stated that he did not believe he could call the police with Defendant there because Defendant had a gun. He and Sharon put Reddix in his truck and asked him several times if he wanted an ambulance. Reddix repeatedly answered, "No." He further stated that Defendant did not hit Reddix with the gun and did not point the gun at anyone.

The trial court recognized Dr. Hai Sun as an expert in neurology, who testified about the injuries sustained by Reddix when he came to the hospital on June 22, 2016. Dr. Sun confirmed that Reddix had a subarachnoid hemorrhage caused by trauma without loss of consciousness, meaning, Reddix had a brain bleed from the rupture of an artery on the surface of his brain. He stated that such an injury could cause pain and suffering, headaches, seizures or other conditions, and that Reddix was conscious when he arrived at the hospital.

Dr. Sun further testified that Reddix also had skull fractures to his occipital and temporal bones, a maxillary fracture to his face and a scalp contusion, with swelling and blood under his scalp. He stated that Reddix's injuries could have caused him to lose consciousness and could have affected his speech, hearing or memory. He also stated that Reddix had cannabis and cocaine in his system.

Kenneth McBroom was called by the state to establish Defendant's connection with his missing firearm. He testified that he had been married to Mary McBroom, who passed away on June 16, 2016. He stated that he kept a Taurus PT, 12 rounds, 9mm handgun in a holster near their bed at home and that Mrs. McBroom knew where the gun was kept. He had cleaned the gun about three days before his wife's death and discovered shortly after her death that the gun was missing. He provided the Caddo Parish Sheriff's Office ("CPSO") with photos of the box that the gun came in, the gun and its serial number and the gun's booklet. He examined a still picture taken from the video, shot by Lee, which showed Defendant holding a gun and confirmed that it resembled his own gun. He further confirmed that his gun had not been recovered.

CPSO Detective Keith Fox ("Det. Fox") testified about his role in investigating Mrs. McBroom's death, stating that she was found deceased on June 16, 2016, in her Jeep in the 12000 block of Keithville-Keatchie Road in Keithville, Louisiana. It was determined that her cause of death was a single gunshot wound to the chest and was ruled a suicide. The firearm and her purse were missing from the Jeep. Mr. McBroome advised him that his 9mm Taurus Pt 111 gun was missing and provided him with the serial number for the gun.

Det. Fox further testified that on the date of Mrs. McBroom's death, he made contact with Defendant, whom he saw across the street from where her body was found in her car. Defendant did not give any statements at the scene, but agreed to be interviewed by him. He stated that he spoke with Defendant twice and mirandized him on both occasions. At the first interview, Defendant said that he saw a white woman inside Mrs. McBroom's vehicle, who he thought was sleeping, but denied touching her vehicle. Defendant also said he saw a "Mexican" man nearby, and it was that man who called the police about Mrs. McBroom.

Det. Fox further testified that during his second interview with Defendant, he stated that he did touch Mrs. McBroom's car by putting his hand under his T-shirt to knock on the driver's side window, and then wiped down the window. Defendant also said he saw "purple fingers" on Mrs. McBroom's hand. Defendant denied going inside the vehicle or touching any part of the vehicle other than the driver's side window.

Det. Fox also testified that while he was investigating the McBroom case, he received a text message from SPD Detective Kelly Coffee, who sent a photo of a suspect that she was following in a case in Cedar Grove in Shreveport and informed him that there was a video of the suspect holding a handgun. He stated that the photo depicted Defendant standing outside and holding a handgun in his right hand. He confirmed that the gun in the photo was very similar to the one Mr. McBroom had said was missing from his home and from Mrs. McBroom's vehicle on the day of the suicide. Det. Fox further confirmed that the gun seen in the still image from the video is different from a comparison photo of the Taurus Pt III air soft, a toy or pellet gun, that the state produced and showed to him.

CPSO Detective John Colvin, a crime scene investigator, testified about the circumstances of Mrs. McBroom's death. He stated that there was no outside damage or signs of forced entry to her vehicle. A bullet, caliber unknown, was found on the inside of the back portion of the driver's seat. Mrs. McBroom was found in the driver's seat, unresponsive, and the door to the vehicle was unlocked. He testified that he lifted prints from the rear passenger door handle, the hood and the front driver's side door of the vehicle.

CPSO Corporal John McCain testified and was qualified by the trial court as an expert witness in fingerprint analysis and investigation. He stated that the palm print lifted from the exterior rear door handle of Mrs. McBroom's vehicle matched Defendant's prints. He also testified about the previously mentioned still image showing Defendant holding a firearm, but stated that the image quality was not good enough to obtain the gun's serial number.

Cpl. McCain further testified that the Taurus Pt 111 air soft toy gun looks substantially different from the Taurus Pt 111. He provided a photo of a Pt 111 air soft toy gun and advised that it shoots BBs or pellets. He stated that there is no scale for the firearm Defendant is holding in the still photo and that he did not know if there were other replica Pt 111s or other similar-looking imitation firearms. The jury was shown photographs of the Taurus Pt 111 taken from the owner's manual, along with an enlarged photograph of the gun in Defendant's hand in the still photograph taken from the video. Cpl. McCain stated that he had researched replica firearms and noted the similarities and differences between the two guns. He also provided a picture of the Pt 111 air soft toy gun and compared it with the photo from the manual.

Faith Pinerkin testified that she had lived across the street from Defendant in Keithville since childhood. She stated that she saw Defendant standing in the street outside her house on June 16, 2016. He then came over to her house and she noted that he was nervous, shaky and pacing back and forth. She observed that he was wearing a white T-shirt, and he asked to use her phone, which he had never done before. He told her that he had seen Mrs. McBroom dead in her car, that he leaned in on the car to see inside and that he then wiped his handprints off the car. She stated that Defendant also told her that he needed to use her phone "to get to the city."

Louisiana State Police Detective Rod Johnson was qualified as a firearm recognition expert over the objection of defense counsel. He stated that he was familiar with the differences between pellet and toy guns and actual firearms. He compared the still video image of Defendant holding the gun with the gun photo Mr. McBroome had provided from the manual for his Taurus Pt 111, along with a photo of a Pt 111 air soft pellet or toy gun. He stated that the Taurus Pt 111 has an adjustable rear sight, which is not seen on a pellet or toy gun. In the still image from the video he could see the trigger safety sticking forward, the cut or flute in the slide of the gun and visible roll pins, all features toy guns do not have. He stated that the double trigger (a trigger within a trigger) on the Pt 111 stood out on the video still image, and he opined that the gun Defendant was holding in the video was either a Pt 111 or Pt 140. He testified that the Pt 111 and Pt 140 were indistinguishable from each other from the outside because the only difference between the two models is the caliber of bullet each gun used. He further testified that pellet or toy guns do not have adjustable sights, a trigger safety or a "takedown" ability to repair, disassemble or clean the gun. Looking at the photo of the Pt 111 air soft toy or pellet gun, he noted that it had no trigger safety, no rear sight and no takedown lever or cut in the slide. He also noted that the toy gun had a piece of orange plastic on the end which could be removed. He stated that the state's photo of the toy gun did not necessarily represent the sum of all possible imitation Pt 111s. He further stated that he could determine how large the gun was by the hand of the person holding it in the video.

After being advised of his Fifth Amendment rights, and against the advice of his counsel, Defendant elected to testify in his own defense. He stated that on June 22, 2016, his grandmother dropped him off on E. 75th Street and he walked to Lee's house on E. 74th Street. Only Lee was present when he arrived. He testified that Reddix arrived in his truck, and he asked Reddix, "What's up with my money? I gave you $ 20 and you said you were going to give me back $ 30." He stated that "[Reddix] looked at me crazy and he just rushed me and swung. And I ducked my head and just swung three, four-three, four punches. And looked up; he was on the ground. He attacked me. He was the aggressor." He claimed that he did not want to fight Reddix.

Defendant further testified that in the video of him and Reddix he had a "pellet pop gun" that he "got from Ronnie, a dude from California I had known from the studio on the west side of the neighborhood." He stated that he had been in jail for four to five years for simple burglary of an inhabited dwelling before the incident with Reddix, that he was released on parole sometime in March 2015 and that he was still on parole when he gave a second statement to Det. Fox on June 23, 2016. He stated that in 2016 he lived in Keithville, Louisiana, at 12437 Keatchie Road.

When Defendant was questioned on June 16, 2016, regarding his statement to Det. Fox the day of Mrs. McBroom's suicide, he admitted that he first told Det. Fox that he never touched her car. He stated that he did not remember in which interview he finally admitted that he had touched her car. He also stated that he did not know if he had told Pinerkin a different story than the statement he initially gave to Det. Fox.

While Defendant testified that he did touch Mrs. McBroom's vehicle, he stated that he never tried to open the vehicle door. He opined that his fingerprints were on the rear passenger handle because he was leaning on the car to see what had happened to her. He testified that he did not see anything on the dash of her car.

In his testimony, Defendant insisted that he had a "pellet pop gun" with an "air gauge" on the bottom of the gun in the video with Reddix. When asked if he knocked out Reddix, he replied, "He attacked me. He was unconscious." When asked if he called the police, he stated that although Lee had told him to leave, he told Lee to call the police and that he would stay because he had not been the aggressor-that Reddix had attacked him.

Defendant further testified that it was Lee's idea to make the video and that the gun was too small to be the Taurus Pt 111. He stated that he returned the gun to "Ronnie" after he made the video. He also stated that he did not know the extent of Reddix's injuries when the video was made.

The 12-person jury returned a unanimous verdict of guilty as charged as to both counts.

On December 6, 2017, the state filed a fourth-felony habitual offender bill against Defendant, which included the following information regarding Defendant's previous convictions:

1. 2016 second degree battery conviction, which was Defendant's fourth-felony offense.
2. On January 24, 2006, pled guilty in Docket No. 243,564, to simple burglary and was sentenced to two years at hard labor suspended, with two years of supervised probation, which was Defendant's first predicate felony conviction.
3. On October 15, 2009, pled guilty in Docket No. 279,466, to simple burglary and was sentenced to two years at hard labor, which was Defendant's second predicate felony conviction.
4. On April 11, 2011, pled guilty in Docket No. 290,519, to simple burglary of an inhabited dwelling and was sentenced to eight years at hard labor which was Defendant's third predicate felony conviction.

On January 29, 2018, Defendant filed a motion for post-verdict judgment of acquittal. On that same day, the trial court denied his motion and he pled not guilty to being a habitual offender.

On March, 5, 2018, Defendant's habitual offender hearing and sentencing were held and he was adjudicated a fourth-felony offender. He was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On the felon in possession of a firearm conviction, he was sentenced to 20 years without benefits, to run concurrently with his life sentence, with no fine or court costs. He was advised of his post-conviction relief time limits and right to an appeal.

Defendant now appeals.

DISCUSSION

Sufficiency of the Evidence: Second Degree Battery

Defendant argues that the evidence presented at trial was insufficient to prove he committed second degree battery because the state failed to prove he intended to inflict serious bodily injury upon Reddix. He contends that Reddix was the first aggressor in the conflict and that Reddix did not know who had hit him from behind after their initial confrontation. He asserts that there was no evidence presented at trial showing that he did anything other than defend himself against Reddix, or that he beat Reddix in a particularly severe manner. He further asserts that Lee testified that Reddix initiated the fight and appeared to strike his head intentionally on the ground after the altercation. He argues that the evidence failed to prove that Reddix suffered serious bodily injury. He also argues that Reddix tested positive for two illegal substances in his system, which would explain his behavior and physical condition on the day of the altercation.

The state argues that Defendant intended to cause serious bodily injury to Reddix by striking him four times in the face and knocking him unconscious onto the concrete, causing him to suffer blood loss in the back of his head and permanent hearing loss in his right ear.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Brown , 52,266 (La. App. 2 Cir. 9/26/18), 256 So.3d 431, writ denied , 18-1797 (La. 3/25/19), 267 So.3d. 597. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; Brown , supra ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. Brown , supra .

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Brown , supra . The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Brown , supra .

La. R.S. 14:34.1 provides, in part:

A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury [.]
...
(3) 'Serious bodily injury' means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

Second degree battery is a specific intent crime and, therefore, the evidence must show that the defendant intended to inflict serious injury. State v. Fuller , 414 So.2d 306 (La. 1982) ; State v. Linnear , 44,830 (La. App. 2 Cir. 12/9/09), 26 So.3d 303. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Linnear , supra . The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia , supra . State v. Jackson , 51,575 (La. App. 2 Cir. 9/27/17), 244 So.3d 764 ; State v. Linnear , supra .

Viewed in the light most favorable to the prosecution, the testimony from Reddix, Lee and Defendant shows that Defendant hit Reddix in the face three to four times and that he also likely hit him in the back of his head after he turned to leave. The jury clearly found Reddix's testimony more credible than Lee's or Defendant's. Furthermore, Reddix sustained fractures to his skull and face, causing unconsciousness, a hospital stay in the ICU and hearing loss in his right ear. While Reddix may have tried to grab Defendant's shirt, or as he testified, put space between Defendant and himself, Defendant used excessive force beyond what the situation required; he then made a video which shows Reddix lying unconscious on the ground while he stands in front of him rapping, smiling and laughing. We find that the evidence is legally sufficient to uphold the conviction of second degree battery.

Therefore, this assignment of error is without merit.

Sufficiency of the Evidence: Possession of a Firearm by a Convicted Felon

Defendant argues that the state did not prove beyond a reasonable doubt that the object he possessed in the video was "designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive." He contends that because the weapon the state calls a firearm had not been located at the time of trial, the jury was unable to examine it to determine if it was genuine. He further contends that the state produced testimony about visual features of the "firearm," but did not produce evidence that it was designed to fire or was capable of firing.

The state argues that this court has held that La. R.S. 14:95.1 does not require that the firearm in question be operable. It contends that what Defendant is actually asking this court to do is reweigh the evidence and assess the credibility of the witnesses' testimonies. It asserts that the gun Defendant was holding in the video was similar in size and shape to Mr. McBroome's missing firearm and that the replica toy gun pictured looked substantially different from the one Defendant held in the video. It argues that the jury heard and weighed all of the evidence and convicted Defendant of possession of a firearm by a convicted felon.

La. R.S. 14:95.1 states, in part:

A. It is unlawful for any person who has been convicted of ... simple burglary ... [or] burglary of an inhabited dwelling to possess a firearm or carry a concealed weapon.
...
D. For the purposes of this Section, "firearm" means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

To convict a defendant of possession of a firearm by a convicted felon, the state must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1 ; State v. Husband , 437 So.2d 269 (La. 1983) ; State v. Morris , 43,522 (La. App. 2 Cir. 9/17/08), 996 So.2d 306. The statute does not require the firearm to be operable. State v. Felder , 36,228 (La. App. 2 Cir. 8/14/02), 823 So.2d 1107, citing State v. Rogers , 494 So.2d 1251 (La. App. 2 Cir. 1986), writ denied , 499 So.2d 83 (La. 1987).

In State v. Powell , 15-0218 (La. App. 4 Cir. 10/28/15), 179 So.3d 721, writ denied , 15-2166 (La. 11/7/16), 208 So.3d 897, the defendant was convicted of illegal use of a firearm and of being a felon in possession of a firearm. Witnesses testified that they saw the defendant fire a gun at them. The defendant claimed he fired a paintball gun at the witnesses and he produced a paintball gun to the police. The police also found spent shell casings at the scene. Although they searched the defendant's house, no firearm was found. Despite this fact, the defendant was found guilty of the two charges and the convictions were upheld on appeal.

In State v. Hawkins , 52,086 (La. App. 2 Cir. 8/15/18), 253 So.3d 899, writ denied , 18-1590 (La. 3/25/19), 267 So.3d 594, the defendant shot at a house, and the police recovered .380 shells near the house and days later found a 9mm handgun in the yard of a home a few blocks from the scene of the alleged shooting. The defendant was not found with a gun on his person; and, despite conflicting testimony, a jury found the defendant guilty of the firearm charge. This court upheld the defendant's conviction of possession of a firearm by a convicted felon.

Evidence presented at trial shows that Defendant pled guilty to simple burglary of an inhabited dwelling in 2011. Defendant was seen near Mrs. McBroom's car on the day of her suicide, and his fingerprints were found on the door handle of her car. Lee testified that he saw Defendant with a gun, and the video shows Defendant pull out what appears to be a handgun similar in appearance to Mr. McBroome's missing handgun. Det. Johnson testified as to the similarities between the gun Defendant is holding in the video and the photo Mr. McBroome provided of his missing Taurus Pt 111. It is clear, when looking at the still shot of Defendant holding the firearm, that it is distinctly dissimilar to the photo produced by the state of the Pt 111 air soft toy gun. We find that the evidence presented at trial was sufficient to uphold Defendant's conviction for possession of a firearm by a convicted felon.

This assignment of error is without merit.

Habitual Offender Adjudication

Defendant argues that the trial court applied a ten-year, instead of five-year, cleansing period when adjudicating him a fourth-felony habitual offender. He contends that the law in effect at the time the state filed the habitual offender bill against him stated that the cleansing period was five years. He also contends that one of the felonies used to adjudicate him a fourth-felony offender was also used to convict him of possession of a firearm by a convicted felon, which amounts to impermissible "double counting" of his felonies. Lastly, he argues that the state failed to produce evidence of when he was discharged from state custody or supervision in order to prove that the cleansing period had not lapsed.

The state argues that the law in effect regarding the cleansing period for habitual offender adjudications was the law in effect when the offense was committed, and any changes to the Habitual Offender Law were prospective only. It asserts that Defendant's prior felonies were not "double counted," because the trial court only enhanced Defendant's second degree battery conviction-not his conviction for possession of a firearm by a convicted felon. Lastly, it argues that it was not required to prove Defendant's discharge date when less than ten years have elapsed between his last conviction and his subsequent conviction. It contends that trial testimony proved that Defendant was still on parole when Det. Fox made contact with him on June 23, 2016, which Defendant confirmed in his testimony.

At the time of Defendant's offense, La. R.S. 15:529.1 stated, in part:

A. Any person who, after having been convicted within this state of a felony ... shall be punished as follows:
...
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
...
B. The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

A 2017 amendment to La. R.S. 15:529.1 reduced the cleansing period for the predicate offenses listed in the habitual offender bill filed against Defendant from ten years to five years. 2017 La. Acts No. 257. The same amendment further provided that the change "shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." A 2018 amendment further clarified the legislature's intent by adding La. R.S. 15:529.1(K)(1), which provides that "notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." 2018 La. Acts No. 542. Prior jurisprudence has held that the habitual offender law in effect at the time the defendant committed the underlying offense is the version that applies; amendments to the habitual offender law apply only to offenses committed after the effective date of the amendments, which is November 1, 2017. State v. Parker , 03-0924 (La. 4/14/04), 871 So.2d 317 ; State v. Floyd , 52,183 (La. App. 2 Cir. 8/15/18), 254 So.3d 38.

Defendant's second degree battery charge was committed in 2016. The trial court stated on the record that it was using the ten-year cleansing period to adjudicate him as a fourth-felony offender, the law in effect in 2016. We find that the trial court used the correct cleansing period.

This assignment of error lacks merit.

A sentence imposed for possession of a firearm by a felon may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearms conviction is not also used as a prior felony conviction in the habitual offender bill of information. State v. Baker , 06-2175 (La. 10/16/07), 970 So.2d 948, cert. denied , 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed. 2d 49 (2008).

The state did not enhance Defendant's conviction for possession of a firearm by a convicted felon. The habitual offender bill clearly states that Defendant's second degree battery conviction was the fourth felony. There was no enhancement of the firearm charge, and Defendant was sentenced separately for that conviction.

Therefore, this assignment of error lacks merit.

The ten-year period begins to run from the date that a defendant is actually discharged from state custody and supervision.

State v. Anderson , 349 So.2d 311 (La. 1977) ; State v. Davis , 41,245 (La. App. 2 Cir. 8/9/06), 937 So.2d 5. In a habitual offender proceeding, the state bears the burden of proving that the period of time between adjacent offenses has not expired. State v. Ignot , 29,745 (La. App. 2 Cir. 8/24/97), 701 So.2d 1001, writ denied , 99-0336 (La. 6/18/99), 745 So.2d 618.

The record in the case sub judice reflects that Defendant's last previous felony conviction preceding the second degree battery conviction was on April 11, 2011, Criminal Docket No. 290,519, in which he pled guilty to simple burglary of an inhabited dwelling and was sentenced to eight years' imprisonment at hard labor. Since the date of commission of the felony giving rise to the present conviction for second degree battery was June 22, 2016, the ten-year period which would have prevented use of the last previous conviction for the purpose of sentencing Defendant under the Habitual Offender Law could not have elapsed. The state produced the bills of information, minutes and plea colloquies for Defendant's three predicate offenses. Furthermore, both Det. Fox and Defendant testified that Defendant was on parole when he was questioned by Det. Fox regarding the June 22, 2016 incident.

On October 15, 2009, Criminal Docket No. 279,466, Defendant pled guilty to simple burglary and was sentenced to two years' imprisonment at hard labor. On January 24, 2006, Criminal Docket No. 243,564, Defendant pled guilty to simple burglary and was sentenced to two years' suspended, with two years of supervised probation. The minutes for Criminal Docket No. 243,564 show that as of July 15, 2008, Defendant was still on probation and, therefore, still under state supervision. In all of the predicate felonies used to adjudicate Defendant a fourth-felony offender, Defendant was either still under state supervision or the offense was committed within the ten-year cleansing period prior to June 22, 2016.

This assignment of error lacks merit.

ERRORS PATENT

A review of the record reveals errors patent. First, the trial court failed to order that Defendant's life sentence and 20-year sentence for possession of a firearm by a convicted felon be served at hard labor as required by La. R.S. 15:529.1(G) and 14:95.1(B), rendering the sentences illegally lenient. The trial court also failed to impose a mandatory fine of not less than $ 1,000 and not more than $ 5,000 as required by La. R.S. 14:95.1(B), also rendering Defendant's sentence for possession of a firearm by a convicted felon illegally lenient.

Because La. R.S. 15:529.1 and 14:95.1 are mandatory felonies requiring any sentence to be served at hard labor, the error is harmless and self-correcting. State v. Foster , 50,535 (La. App. 2 Cir. 4/13/16), 194 So.3d 674.

Regarding the failure to impose the mandatory fine, the state did not object to the error, and Defendant obviously is not prejudiced by the trial court's failure to impose the mandatory fine. Accordingly, this court will not remand the case for correction of the sentence to include such a fine. State v. Brown , 52,501 (La. App. 2 Cir. 1/16/19), 264 So.3d 697 ; State v. Reynolds , 49,258 (La. App. 2 Cir. 10/1/14), 149 So.3d 471.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant Taurean Lamar Thomas are affirmed.

AFFIRMED.

      The video was played for the jury without audio and Lee verified that it was the video he took of Defendant with his phone. It was later played with the sound on.

      Det. Coffee interviewed Defendant about the incident in the case at bar; however, the interview was not published to the jury.

      After the trial was over and Defendant appealed, the state filed a notice in the record that the previously missing firearm had been recovered. The notice, filed August 17, 2018, stated that on September 27, 2107, the state prosecuted Defendant for possession of a firearm by a convicted felon and second degree battery; and, at that time, the firearm had not been recovered. On March 5, 2018, Defendant was sentenced to life in prison as a fourth felony offender. On July 23, 2018, Det. Keith Fox informed the assistant district attorney ("ADA") that the firearm used in the McBroom suicide had been recovered from under the passenger seat of a vehicle in which two men were riding following an unrelated consensual search of the vehicle. The ADA informed Defendant's trial attorney, Michael Enright, that same day via text message and later informed Defendant's appellate attorney, Christopher Hatch. Both occupants claimed ownership of the gun, which was the same gun stolen from the McBroom vehicle; both were charged with possession of a stolen firearm.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee v. Marcus U. JACKSON, Defendant-Appellant
    No. 52,423-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    DANIEL W. NEWELL, District Attorney, TERESA CULPEPPER CARROLL, J. CLAY CARROLL, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, STONE, and McCALLUM, JJ.
   McCALLUM, J.

Marcus U. Jackson ("Mr. Jackson") appeals the trial court's denial of his "Motion to Quash the Arrest Warrant and To Suppress." On April 3, 2018, Mr. Jackson entered a Crosby plea of guilty to possession of marijuana, fourth offense, while reserving his right to appeal the trial court's decision denying his motion. Mr. Jackson argues that the trial court erred because the arrest warrant was based on an affidavit that contained false or misleading statements. Therefore, Mr. Jackson contends that we should reverse the trial court and grant his motion to quash and suppress.

For the following reasons, we affirm the trial court's decision in denying Mr. Jackson's motion to quash the arrest warrant and to suppress. We further affirm the conviction and sentence of Mr. Jackson.

FACTS

On July 11, 2017, in the parish of Jackson, the Honorable Daniel W. Newell, through his assistant district attorney, Mr. J. Clay Carroll, filed a bill of information charging Mr. Jackson with two counts of criminal conduct. Count One was conspiracy to distribute schedule II CDS. Count two was possession of marijuana, fourth offense.

On November 7, 2017, at the conclusion of a preliminary hearing, the Honorable Jimmy C. Teat found probable cause to hold Mr. Jackson under his bail obligation pending trial. At the preliminary hearing, the court accepted evidence including the arrest warrant, the accompanying affidavit upon which the arrest warrant was issued, the testimony of the affiant, Deputy Shultz, and a video of the alleged meeting between the confidential reliable informant ("CRI") and Mr. Jackson. The Court also heard arguments by counsel for both Mr. Jackson and the State.

On February 1, 2018, Mr. Jackson filed a motion to quash the arrest warrant and to suppress any evidence obtained through the execution of the warrant. Mr. Jackson alleged that the arrest warrant in question contained "false and/or misleading statements." Therefore, Mr. Jackson sought to quash the arrest warrant, suppress certain evidence obtained through searches connected with the arrest and have all charges against him dropped. On April 3, 2018, the trial court held a hearing and denied Mr. Jackson's motion. Mr. Jackson then entered his Crosby plea of guilty to possession of marijuana, fourth offense.

The trial court considered the evidence within the record from the preliminary exam and heard additional arguments of counsel. Mr. Jackson argued that the affidavit, upon which the judge issued the arrest warrant, contained false or misleading statements. Specifically, Mr. Jackson argued that although Deputy Shultz stated within his affidavit that Mr. Jackson was seen and heard talking to the CRI, the video of the meeting neither visually nor audibly proved Mr. Jackson's presence. Mr. Jackson further argued that Deputy Shultz had previously stated that he reviewed the video prior to signing his affidavit and securing the arrest warrant. Therefore, Mr. Jackson asserted that Deputy Shultz intentionally misled the judge when securing the arrest warrant.

The affidavit in question states the following:

On or about March 15, 2017 I, Deputy Donovan Shultz was contacted by Deputy Mike Roland and Deputy Clay Sonnier with the Bienville Parish Narcotics unit. They advised met that they had a CRI who could come make a buy from Edward Zumwalt. They stated that they had already made a few cases on him and that Zumwalt did not have a way to get to Bienville Parish that day.
We meet a location in Jackson Parish where the CRI was searched along with vehicle being used. The CRI was given $ 225 for the buy. The CRI left the meet location to go to Zumwalt's residence located on Leon Drive in Jonesboro. Had approximately 12:51 the CRI sent a text stating that they were going to Poochie's house, Marcus U. Jackson. At approximately 13:09 hours the CRI arrived back to the meet location where he handed us a clear plastic bag with white material suspected to be methamphetamine.
The CRI was interviewed and searched again. The CRI stated that when CRI arrived at Zumwalt's residence that he stated that they had to go to Poochie's house. The film shows them going to that residence located on Robinson Street in Jackson Parish. CRI stated that Poochie arrived and walks up to the truck and ask where Zumwalt was and then goes to inside the trailer where he was at. Zumwalt then comes out and gives him the bag of suspected meth.
On or about April 7, 2017 to the Crime lab in Shreveport. We received a crime lab report back stating that the sample submitted weighed 5.14 grams and did test positive for Methamphetamine, Schedule II CDS.
Marcus U. Jackson did commit the offense of Conspiracy to Distribute a Schedule II CDS, that being Methamphetamine. This is done in violation of Louisiana Revised Statute 14:27 & 40:967.

The trial court noted that no evidence within the record reflected that Deputy Shultz reviewed the video prior to executing his affidavit or to securing the arrest warrant. The trial court further found that Deputy Bailey, who arrested Mr. Jackson and performed the search pursuant to the arrest warrant, acted in good faith. Therefore, the trial court found that the evidence obtained through the search did not bear the "poisonous fruits" complained of by Mr. Jackson.

The trial court sentenced Mr. Jackson to 42 months of imprisonment at hard labor. He now appeals the decision of the trial court, asserting the identical arguments outlined at the hearing on his motion to quash and suppress.

DISCUSSION

Titled "Warrant of arrest; issuance," applicable parts of Louisiana Code of Criminal Procedure Article 202 state:

A. A warrant of arrest may be issued by any magistrate pursuant to this Paragraph or as provided in Paragraph D of this Article and, except where a summons is issued under Article 209 of this Code, shall be issued when all of the following occur:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any....
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonably trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed a crime. State v. Williams , 448 So.2d 659 (La. 1984) ; State v. Smith , 49,356 (La. App. 2 Cir. 11/19/14), 152 So.3d 218, writ denied , 2014-2695 (La. 10/23/15), 179 So.3d 597 ; State v. Brown , 47,247 (La. App. 2 Cir. 9/26/12), 105 So.3d 734. When a warrant is challenged, the task for a reviewing court is to ensure that under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed. If the magistrate finds that the affidavit is sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. State v. Shiell , 16-447 (La. App. 5 Cir. 12/7/16), 204 So.3d 1213, writ denied , 17-0041 (La. 9/15/17), 225 So.3d 477. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. Id. ; State v. Gaubert , 14-396 (La. App. 5 Cir. 12/16/14), 167 So.3d 110, 114.

Minor inaccuracies in assertions in the affidavit may not affect the validity of the warrant. However, if intentional misrepresentations designed to deceive the issuing magistrate are made by the affiant seeking to obtain the warrant, the warrant must be quashed. Alternatively, if unintentional misstatements are included, these misstatements must be excised and the remainder used to determine if probable cause for the issuance of a warrant is set forth. Similarly, when the affiant omits material facts without intent to deceive, the reviewing court must add the omitted facts to those originally included and retest the sufficiency of the showing of probably cause. State v. Williams , supra ; State v. Smith , supra ; State v. Brown , supra . The term "intentional" means a deliberate act made for the purpose of deceiving the magistrate. State v. Rey , 351 So.2d 489 (La. 1977) ; State v. Smith , supra .

Titled "Motion to suppress evidence," relevant parts of Louisiana Code of Criminal Procedure Article 703 state:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
...
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false. State v. Shiell , supra ; State v. Dee , 09-712 (La. App. 5 Cir. 2/23/10), 34 So.3d 892, writ denied , 10-705 (La. 10/29/10), 48 So.3d 1097.

A trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Fountain , 49,637 (La. App. 2 Cir. 3/4/15), 162 So.3d 652 ; State v. Roberson , 46,697 (La. App. 2 Cir. 12/14/11), 81 So.3d 911, writ denied , 12-0086 (La. 4/20/12), 85 So.3d 1270. An appellate court reviews a trial court's ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying de novo review to findings of law. State v. Fountain , supra .

Mr. Jackson argues that the arrest warrant in question was secured based on an affidavit executed by Deputy Shultz. The affidavit states that the CRI told Deputy Shultz that Mr. Jackson approached the vehicle, then approached the house and secured the controlled dangerous substances from another party in the house. Mr. Jackson contends that because Deputy Shultz viewed the video prior to writing his affidavit, and where the video does not show Mr. Jackson or record any conversation with the CRI, then Deputy Shultz intentionally included false statements or misrepresentations within his affidavit.

The video in question neither shows Mr. Jackson's approach to the vehicle, nor records his voice. The video does show gestures by the CRI that Deputy Shultz testified were the basis of knowing that Mr. Jackson approached the vehicle. Deputy Shultz testified that the CRI informed him that Mr. Jackson approached the vehicle, went into the house, and secured the controlled dangerous substances. Deputy Shultz further testified that the video included gestures by the CRI that indicated that Mr. Jackson was present and that he was the party involved in the crime.

With regard to Deputy Shultz's alleged intentional false statements or misrepresentations, Mr. Jackson did not produce any evidence of his claim. The Court noted that neither the State nor Mr. Jackson provided evidence or testimony that Deputy Shultz reviewed the video in question prior to writing his affidavit. In fact, counsel for Mr. Jackson even stated to the trial judge that she did not know if Deputy Shultz viewed the video before or after he wrote the affidavit. At best, Mr. Jackson can prove only that Deputy Shultz viewed the video prior to the preliminary exam hearing, not prior to his creation of the affidavit. Noting such in his ruling, Judge Teat correctly found that Deputy Shultz did not intentionally mislead the magistrate.

Additionally, the affidavit does not contain any misrepresentations or false statements. In his affidavit, Deputy Shultz does not state that the video shows Mr. Jackson. Instead, Deputy Shultz states that the CRI informed him that Mr. Jackson approached the vehicle and that he spoke with Mr. Jackson. During the preliminary hearing, Deputy Shultz testified that the video, including the hand gestures by the CRI on the video, supported the statement told to him by the CRI. The only time that Deputy Shultz mentions the video in question is to indicate that it shows that the CRI drove to Mr. Jackson's home. Therefore, the trial court correctly concluded that the affidavit in question did not contain false statements or misrepresentations.

Finally, even if the affidavit contained information that was unintentionally omitted, the outcome would not have changed. That Mr. Jackson cannot be seen or heard on the video does not diminish the substantial, sufficient basis for the issuance of the arrest warrant. The CRI stated that Mr. Jackson was present at the vehicle and the house and that Mr. Jackson approached the house and secured the controlled dangerous substance. Furthermore, Deputy Shultz included his conversation with the CRI in his affidavit along with lab reports of the substances that Mr. Jackson procured.

We find no evidence that Deputy Shultz purposefully or intentionally misled the magistrate. We find that the affidavit does not contain any false statements or misrepresentations. We further find that even including the fact that the video does not show or record Mr. Jackson, the affidavit was still sufficient for the magistrate to issue the arrest warrant. Therefore, we find Mr. Jackson's assignment of error to be without merit.

CONCLUSION

The judgment of the trial court is AFFIRMED. Furthermore, the conviction and sentence of Mr. Jackson are AFFIRMED.


author: WISE, Justice.

text:
    EX PARTE the ESTATE OF Fredrick O'Brian ELLIOTT, deceased, BY AND THROUGH his personal representative, Sonya WINDHAM
    (In re The Estate of Fredrick O'Brian Elliott, deceased, by and through his personal representative, Sonya Windham v. Brookwood Baptist Health 1, LLC, Baptist Health System, Inc., BBH PBMC, LLC, and Courtney Johnston)
    1170564
    Supreme Court of Alabama.
    September 7, 2018
    Charles C. Tatum, Jr., and Seth L. Diamond, Jasper, for petitioner.
    Jasper P. Juliano of Parsons, Lee & Juliano, P.C., Birmingham, for respondents Courtney Johnston and Baptist Health System, Inc., d/b/a Princeton Baptist Medical Center.
   WISE, Justice.

The petitioner, the estate of Fredrick O'Brian Elliott, deceased, by and through his personal representative, Sonya Windham ("the estate"), filed a petition for a writ of mandamus asking this Court to direct the Jefferson Circuit Court to vacate its March 7, 2018, order insofar as it denies certain requests for production of documents made by the estate. We grant the petition and issue the writ.

Factual Background and Procedural History

On July 14, 2017, the estate filed a wrongful-death action against Baptist Health System, Inc., d/b/a Princeton Baptist Medical Center ("PBMC"), and Courtney Johnston (hereinafter collectively referred to as "the defendants") and various fictitiously named defendants. The complaint alleged that, on September 7, 2015, Elliott was admitted to Princeton Baptist Medical Center complaining of nausea, vomiting, and gastritis ; that, as part of his treatment, Elliott "was ordered to undergo full bowel rest by having Trans-Peritoneal Nutrition (TPN) administered through a Peripherally Inserted Central Catheter (PICC Line)"; that a PICC line was inserted into Elliott's right arm, which line was used to administer a daily dose of TPN, which came in a sterile bag; and that, despite the treatment, Elliott's symptoms did not subside. The complaint further alleged that, on the morning of September 18, 2015, Courtney Johnston, Elliott's nurse, administered a TPN bag to Elliott; that Elliott continued to experience bouts of nausea and vomiting that interrupted the TPN infusion; that, later that day, while Windham, who is Elliott's mother, was present, Johnston came into Elliott's room and discarded the partially full TPN bag into the trash; that Windham was concerned and questioned Johnston because Elliott had not finished his entire nutritional dose; that Johnston told Windham that she was following doctor's orders; that Windham asked Johnston for the name of the doctor who had ordered the TPN bag to be removed and Johnston stated that she did not know; that Windham asked Johnston to find the doctor so she could talk to him; that Johnston became agitated and left the room; that Johnston returned to the room a few minutes later, took the TPN bag out of the trash can and reconnected it to Elliott's PICC line; and that Johnston apologized to Windham and told her that she had read the order incorrectly. The complaint also alleged that, soon after, Elliott became febrile; that, on September 21, 2015, Elliott's temperature spiked to 102.5º, he was sweating profusely, and he became "profoundly tachycardic and hypertensive"; that blood cultures revealed that Elliott had "a nosocomial infection and was septic with Proteus Mirabilis"; that the contaminated PICC line was later confirmed as the source of Elliott's infection; that Elliott was treated with intravenous antibiotics; that, although Elliott's bacterial infection seemed to resolve, "the damage done to [his] heart from the nosocomial infection was insurmountable"; that Elliott's heart suddenly stopped beating on September 30, 2015; that Elliott could not be resuscitated;

and that Elliott was pronounced dead at 6:15 p.m. that evening.

The complaint alleged that the defendants and the fictitiously named defendants had failed to discharge their obligations of care to Elliott and that, as a result, Elliott "suffered fatal injuries, extreme pain, suffering, and mental anguish." It also alleged that the defendants' malpractice resulted, in part, "from a systemic failure to adequately document and treat patients" and "a failure to maintain medical records which contained sufficient information to justify the diagnosis and treatment of those patients including" Elliott; that the defendants "failed to document the results, including at a minimum, documented evidence of assessments of the needs of [Elliott], for the establishment of appropriate plans of care and treatment, and for the care and services provided during his treatment as a whole"; and that those acts and omissions occurred as a result of PMBC's "understaffing and/or failure to properly train its staff and/or the incompetence of its employee." The complaint alleged claims of negligence, wantonness, and negligent and/or wanton hiring, training, and supervision. PBMC and Johnston subsequently filed answers to the complaint.

On August 10, 2017, the estate filed its "Second Request for Production to All Defendants," in which it requested:

"1. The entire employment file for Courtney Johnston.
"2. Any and all disciplinary records related to Courtney Johnston.
"3. Any and all training records related to Courtney Johnston.
"4. Any and all nursing policies, procedures, rules, regulations, and training modules related to the use and care of PICC Lines, TPN, and aseptic technique.
"5. Any and all disciplinary records related to any nurse, agent, or employee or any other individual arising from or related to having provided care for Fredrick O'Brian Elliott.
"6. Any and all complaints, reports, inspections, audits, investigations or writing submitted to or received from any licensing agency, accrediting or regulatory agency, body, or governmental entity arising from or related providing care for Fredrick O'Brian Elliott.
"7. Any document, writing, statement, record, related to any internal audits, investigations, root cause analysis, or finding performed by any of the above named defendants arising from or related to providing care for Fredrick O'Brian Elliott."

The defendants filed an "Initial Response (Objections) to [the Estate's] Second Request for Production to All Defendants." With regard to each request contained in Requests 1, 2, 5, 6, and 7, the defendants stated:

"Defendants object to this request for that as it is sufficiently broad that it seeks information that is privileged and not discoverable in this case pursuant to one or more of the following:
"a. Section 22-21-8 of the Code of Alabama [1975]
"b. Section 34-24-58 of the Code of Alabama [1975]
"c. Section 34-24-59 of the Code of Alabama [1975]
"d. Section 6-5-333 of the Code of Alabama [1975]
"e. Section 6-5-551 of the Code of Alabama [1975]."

(Emphasis omitted.) The defendants also asserted that Requests 1 and 2 requested "private personal identifying information." The defendants did not object to Requests 3 and 4. The defendants did not include any additional information or argument regarding those requests.

On January 4, 2018, the estate filed a "Motion to Compel Defendants to Produce Documents Responsive to [the Estate's] Second Request for Production." In its motion to compel, the estate argued:

"4. As it stands, defendants' objections are nothing more than shot-gun boilerplate responses that have no merit which amount to dilatory tactics and gamesmanship.
"5. Rule 26(b)(6) of the Alabama Rules of Civil Procedure requires any party withholding information on a claim of privilege or work product shall be supported by a description of the document sufficient to be able to contest the claim.
"6. Defendants have not provided a privilege log and they have not set forth why the requested information is over broad, privileged, and not discoverable.2
"7. Without defendants' answers, plaintiff will be unfairly prejudiced and cannot adequately prepare for trial.
"[8]. Plaintiff requests that the court order the defendants to produce documents responsive to each of plaintiff's requests and to provide a privilege log with sufficient detail, for the requests that were objected to, within fourteen days, or such other time deemed reasonable by the court, and for payment of the costs incurred in filing this motion in an amount the court deems equitable and just.
"_____________
"2'The party asserting the quality-assurance privilege has the burden of proving its applicability as well as the prejudicial effect of disclosing the information in question. Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 219 (Ala. 2000) (noting that, with regard to § 22-21-8, "the burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on the party asserting the privilege").' Ex parte Altapointe Health Sys.[, Inc.], [Ms. 1160544, Sept. 8, 2017]. ' "Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presented ...." Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096, 1103 (Ala. 2002) (quoting Ex parte DCH Reg'l Med. Ctr., 683 So.2d 409, 412 (Ala. 1996) ). The burden is on the party asserting the attorney-client privilege to establish the existence of an attorney-client relationship as well as other facts demonstrating the claim of privileged information. Ex parte DCH Reg'l Med. Ctr., 683 So.2d at 412.' Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355, 363 (Ala. Mar. 7, 2008)."

On February 1, 2018, the defendants filed a response to the estate's motion to compel. The defendants again did not object to Requests 3 and 4. However, with regard to the remaining requests, the defendants stated:

"REQUEST 1. The entire employment file for Courtney Johnston.
"Defendants have objected, at least in part, to this request as it seeks the 'entire' employment file for Courtney Johnston. That file will contain information and things that are not discoverable in this action. As stated in response to number 3, these defendants have not objected to training materials relative to Courtney Johnston that existed as of the time of the subject incident as these defendants acknowledge the same are discoverable since the [estate] pled a claim for alleged inadequate training. If and to the extent that Courtney Johnston's employment file contains such training materials, those portions of the file will be produced. Otherwise, defendants maintain their objection to non-discoverable materials in her file.
"REQUEST 2. Any and all disciplinary records related to Courtney Johnston.
"These defendants filed timely specific objections to this request. This request directly seeks production of information that is 'quality assurance' in nature. By Alabama statute, § 22-21-8, [Ala. Code 1975,] quality assurance activities and the results of those activities, including but not limited to disciplinary action [are] strictly prohibited and expressly not allowed as discovery in a civil action such as this. The Alabama legislature set down this statute with obvious policies, encouraging medical care providers to conduct quality assurance when necessary and respond accordingly, and in furtherance of that policy made the information generated from such activities privileged so that hospitals would not be punished or discouraged from conducting meaningful quality assurance activities including, but not limited to disciplinary matters when appropriate. [The estate's] motion to compel is due to be denied regarding this request.
"....
"REQUEST 5. Any and all disciplinary records related of any nurse, agent, or employee or any other individual arising from or related to having provided care for Fredrick O'Brian Elliott.
"This request is essentially the same as number 2, and the same objections and law apply to the same. For those same reasons, [the estate's] motion to compel is due to be denied as to this request.
"REQUEST 6. Any and all complaints, reports, inspections, audits, investigations or writing submitted to or received from any licensing agency, accrediting or regulatory agency, body or governmental entity arising from or related to providing care for Fredrick O'Brian Elliott.
"Defendants objected to number 6 on similar grounds to numbers 2 and 5 as this request blatantly and directly seeks production of quality assurance and credentialing information, both of which are privileged under § 22-21-8 of the Code of Alabama [1975].
"In pertinent part, that statute provides the following which applies directly to this request:
" 'All accreditation, quality assurance credentialing, and similar materials shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities.'
" Section 22-21-8 of the Code of Alabama [1975] (emphasis added).
"Thus, [the estate's] motion to compel is clearly due to be denied as to request number 6.
"REQUEST 7. Any document, writing, statement, record, related to any internal audits, investigations, root cause analysis, or finding performed by any of the above named defendants arising from or related to providing care for Fredrick O'Brian Elliott.
"Defendants adopt the grounds asserted above in objection to number 6. This request likewise blatantly seeks quality assurance information, specifically asking for 'root cause analysis' which is the very essence of a quality assurance activity. Defendants respectfully submit this request is due to be denied as well as the [estate's] motion to compel on the same."

On February 1, 2018, the estate filed a reply to the defendants' response to the motion to compel. In its reply, the estate asserted:

"2. In their response defendants re-hash and present no additional or different grounds than those previously asserted in their objections for refusing to provide document[s] responsive to [the estate's] requests, namely that the requests seek records which are privileged.
"3. Defendants have not provided a privilege log as required by Rule 26 of the Rules of Civil Procedure and [the estate] cannot respond to vagaries and hypotheticals, yet that is exactly what defendants expect [the estate] to do.
"4. Defendants have not offered any facts to satisfy their burden of proof that the documents requested are privileged and not discoverable.
"5. For clarity of the record, [the estate] makes the following modification to [its] second request for production of documents, which was previously communicated to defendants prior to the filing of their response: (1) [the estate] withdraws request number 6, and (2) [the estate] limits request number # 7 to those records prepared or used for reasons other than Quality Assurance, licensing, accreditation, or peer review."

After hearing oral arguments on the motion to compel, the trial court entered an order granting the motion to compel as to Requests 3 and 4, noting that Request 6 was withdrawn, and denying the motion to compel as to Requests 1, 2, 5, and 7. PBMC did not submit a privilege log, and the trial court's order did not require PBMC to submit a privilege log. The estate filed a petition for a writ of mandamus, and this Court ordered answer and briefs.

Standard of Review

" ' In Ex parte Norfolk Southern Ry., 897 So.2d 290 (Ala. 2004), this Court delineated the limited circumstances under which review of a discovery order is available by a petition for a writ of mandamus and the standard for that review in light of Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003) :
" ' " 'Mandamus is an extraordinary remedy and will be granted only when there is "(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001) ; (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala. 1996) ; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case -- that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala.1992).' "
" ' 897 So.2d at 291-92 (quoting Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1136-37 (Ala. 2003) ).'
" Ex parte Orkin, Inc., 960 So.2d 635, 638 (Ala. 2006)."

Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355, 360 (Ala. 2008). Additionally, "[d]iscovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala. 1991)." Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003).

Discussion

In its petition, the estate asks this Court to direct the trial court to vacate its order insofar as it denies its motion to compel production of the documents requested in Requests 1, 2, 5, and 7 without requiring PBMC to produce a privilege log because, it says, PBMC failed to prove that the documents withheld were privileged and because the "circuit court overlooked the requirement of Rule 26(b)(6) [, Ala. R. Civ. P.,] which requires the party withholding information on the basis of privilege to provide a description of the documents in sufficient detail to enable the demanding party to contest the claim." The estate goes on to argue:

"[I]n denying [the estate's] motion to compel without any proof the information withheld is privileged, the trial court has impermissibly deprived the Estate from making a record of the issue such that the appellate court cannot adequately review the effect of the trial court's error on appeal."

In their response to the motion compel, the defendants asserted that Johnston's employment file, which was sought in Request 1, included privileged information. However, they did not include any information regarding what type of documents in that file were privileged or why such documents would be privileged.

With regard to Requests 2, 5, and 7, the defendants alleged that the requested documents constituted quality-assurance materials that are privileged under § 22-21-8, Ala. Code 1975.

" Section 22-21-8 provides, in part:

" '(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.
" '(b) All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar function, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein....'
"This Court has given § 22-21-8 a broad interpretation. See, e.g., [Ex parte] Fairfield Nursing [and Rehab. Ctr., L.L.C.], 22 So.3d at [445,] 452 [ (Ala. 2009) ] (noting that the language of § 22-21-8 does not require the existence of a quality-assurance committee or limit the privilege to materials created by such a committee); Ex parte Krothapalli, 762 So.2d 836, 839 (Ala. 2000) (noting the 'broad language used by the Legislature' in the title to the act that became § 22-21-8 ). Nevertheless, the party asserting the quality-assurance privilege has the burden of proving its applicability as well as the prejudicial effect of disclosing the information in question. Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 219 (Ala. 2000) (noting that, with regard to § 22-21-8, 'the burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on the party asserting the privilege')."

Ex parte Altapointe Health Sys., Inc., 249 So.3d 1108, 1115-16 (Ala. 2017).

In Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208 (Ala. 2000), this Court addressed an argument that certain information was privileged quality-assurance information that was not discoverable pursuant to § 22-21-8, Ala. Code 1975, as follows:

"Coosa Valley also argues that the information at issue was not discoverable because, Coosa Valley says, it is 'quality-assurance information' and is therefore privileged under § 22-21-8, Ala. Code 1975. However, as this Court noted in Ex parte St. Vincent's Hospital, 652 So.2d 225, 230 (Ala. 1994), the burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on the party asserting the privilege. Coosa Valley has offered no evidence to show that the information sought was maintained for purposes of quality assurance or for any other purpose covered by § 22-21-8. Compare Ex parte Qureshi, 768 So.2d 374 (Ala. 2000) ; Ex parte Krothapalli, 762 So.2d 836 (Ala. 2000) (in each of those cases, the petitioner submitted evidence in the form of affidavits establishing that the information sought by the discovery requests was privileged). Accordingly, Coosa Valley did not meet its burden of proving that the information sought by the discovery requests was privileged."

789 So.2d at 219-20.

In their initial objection to the estate's requested discovery, the defendants merely argued that the documents were privileged and included a list of statutes under which they stated the requested information was privileged or nondiscoverable. In its motion to compel, the estate pointed out that the defendants' response included scattergun objections and did not include any facts, and it asked the trial court to order the defendants to provide a privilege log with regard to documents to which the defendants objected. In their response to the motion to compel, the defendants presented general arguments that Requests 1, 2, 5, and 7 sought privileged information. However, they did not present any affidavits or any other evidence to support their assertion that the requested information was privileged. Rather, it appears that the defendants relied solely upon the statements of counsel to support their assertion of privilege.

" ' " 'In considering a mandamus petition, we must look at only those facts before the trial court.' Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995) (emphasis added). Of course, facts must be based upon 'evidentiary material,' which does not include statements of counsel in motions, briefs, and arguments. Ex parte McCord-Baugh, 894 So.2d 679, 686 (Ala. 2004). See also Providian Nat'l Bank v. Conner, 898 So.2d 714, 719 (Ala. 2004).
" ' Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 345 (Ala. 2006). See also Ex parte Verbena United Methodist Church, 953 So.2d 395, 399 (Ala. 2006). Because the information before this Court regarding Wright's assertions is contained in "statements of counsel in motions, briefs, and arguments," it cannot be considered "evidentiary material" and thus will not be considered by this Court.'
" Ex parte Autauga Heating & Cooling, LLC, 58 So.3d [745,] 749-50 [ (Ala. 2010) ]."

Ex parte Waltman, 116 So.3d 1111, 1119 (Ala. 2013). Therefore, there were no facts before the trial court to establish that the requested documents were, in fact, privileged.

Additionally, the lack of evidence to establish the privilege is exacerbated by the fact that the defendants did not submit a privilege log describing the information or documents that were being withheld as privileged information. Rule 26(b)(6)(A), Ala. R. Civ. P., provides:

"When a party withholds information otherwise discoverable under these rules on claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and, upon written request by any other party, shall be supported by a description of the nature of the documents, communications, or things not produced sufficient to enable the demanding party to contest the claim. This supporting description shall be served within twenty-one (21) days of the date a request is served, unless otherwise ordered."

(Emphasis added.)

In its motion to compel, the estate specifically requested that the trial court order the defendants "to provide a privilege log with sufficient detail, for the requests that were objected to." Thus, the estate filed a written request for a description of the documents that were being withheld.

However, the trial court denied the estate's motion to compel responses to Requests 1, 2, 5, and 7 without first requiring the defendants to produce a privilege log describing the documents being withheld. Without any description of the documents that were being withheld, the estate could not effectively formulate a response to the defendants' assertion of privilege. Additionally, by not requiring the defendants to provide a privilege log, the trial court denied the estate of the opportunity to present an effective argument on appeal challenging the trial court's denial of its requests for production set forth in Requests 1, 2, 5, and 7. In this case, the trial court denied the estate's motion to compel the production of the information requested in Requests 1, 2, 5, and 7 based solely on the assertions of counsel for the defendants. Thus, the defendants did not satisfy their burden of establishing that the information requested in Requests 1, 2, 5, and 7 was privileged. See Ex parte Coosa Valley Health Care, supra. Additionally, by denying the estate's Requests 1, 2, 5, and 7 without ordering the defendants to produce a privilege log describing the withheld materials and without requiring the defendants to present any evidence to establish that the requested information was, in fact, privileged, the trial court effectively prevented the estate "from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error." Ex parte Ocwen, 872 So.2d at 814. Thus, the trial court exceeded its discretion when it denied the estate's requests for production in Requests 1, 2, 5, and 7.

Conclusion

For these reasons, the estate has established a clear legal right to the relief sought. Accordingly, we grant the petition for a writ of mandamus and direct the trial court to vacate the portion of its March 7, 2018, order denying the estate's motion to compel production of the documents sought in the Requests 1, 2, 5, and 7 of the estate's second request for production and to order the production of those documents.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Parker, Shaw, Main, Bryan, and Mendheim, JJ., concur.

Bolin and Sellers, JJ., concur in the result.

      The complaint named as defendants "BROOKWOOD BAPTIST HEALTH 1, LLC, d/b/a Princeton Baptist Medical Center, BAPTIST HEALTH SYSTEM, INC., d/b/a Princeton Baptist Medical Center, BBH PBMC, LLC, d/b/a Princeton Baptist Medical Center." In its answer, PBMC stated that its "true and correct name is Baptist Health System, Inc., d/b/a Princeton Baptist Medical Center."

      Neither party has provided this Court with a transcript of the oral arguments that were presented to the trial court.

      We also note that, in their response to the petition for a writ of mandamus, the defendants do not address, much less refute, the estate's assertion that they did not present any evidence to support their claim that the requested documents were privileged.

      In their brief filed in this Court, the defendants argue that they were not required to provide a privilege log because the estate did not serve them with a request for a privilege log before the estate filed its motion to compel. However, Rule 26(b)(6)(A), Ala. R. Civ. P., states that the withholding party shall provide a description of the documents being withheld "upon written request of any other party." Nothing in Rule 26(b)(6)(A), Ala. R. Civ. P., requires that such a request must be filed before a motion to compel is filed.