author: COOKS, Judge.

text:
    STATE of Louisiana v. Aaron Orlando RICHARDS
    17-1135
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
    Keith Stutes, District Attorney, Cynthia Simon, Assistant District Attorney, P.O. Box 3306, Lafayette, LA 70502, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana
    Edward K. Bauman, Louisiana Appellate Project, P.O. Box 1641, Lake Charles, LA 70602, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Aaron Orlando Richards
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On March 29, 2010, in the late evening, Defendant, Aaron Orlando Richards, and co-defendant, Marcus Feast, followed Timothy Falgout to a home where he was delivering a pizza. Defendant stabbed the victim five times during the course of a robbery. The victim died as a result of the stab wounds.

On October 27, 2010, Defendant was indicted for the first degree murder of Timothy Falgout, in violation of La.R.S. 14:30. At the same time, Defendant was indicted for attempted first degree murder, violations of La.R.S. 14:27 and 14:30, and purse-snatching, a violation of La.R.S. 14:65.1. The latter two charges were severed from the first degree murder charge on April 30, 2012.

On December 8, 2010, Defendant filed a "Jackson Demand for Notice of Any Bad Acts That the State May Wish to Use at Either Phase." On January 12, 2012, the State filed a "State's Notice with Regard to Aggravating Circumstances" and "State's Response to Defendant's Jackson Demand for Notice of Any Bad Acts That the State May Wish to Use at Either Phase" and on March 28, 2012, the State filed an amended response.

The issue of the La.Code Evid. art. 404(B) other crimes evidence was taken up on May 30, 2012. Following testimony and arguments, the trial court took the matter under advisement. On July 9, 2012, the trial court ruled that the evidence the State sought to admit at trial was relevant and admissible. The trial court's ruling was affirmed. State v. Richards , 12-1063 (La.App. 3 Cir. 12/17/12) (unpublished opinion), writ denied , 13-152 (La. 3/1/13), 108 So.3d 1183.

On July 18, 2016, the State filed a "Notice of Intent Not to Seek the Death Penalty." A jury trial commenced on April 4, 2017, following which Defendant was found guilty as charged. Defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence, to be served consecutively with any other sentence Defendant was currently serving.

Defendant has perfected this timely appeal, wherein he asserts four assignments of error: (1) The trial court erred in allowing the introduction of other crimes evidence; (2) The trial court erred in failing to grant defense counsel's challenges for cause and in granting a state's challenge for cause; (3) The trial court erred in releasing a potential juror for cause on its own; and (4) The evidence submitted at trial was insufficient to find Defendant guilty of first degree murder beyond a reasonable doubt.

For the following reasons, we find no merit in any of Defendant's assignments of error and affirm his conviction and sentence.

I. Assignment of Error Number Four.

Defendant's fourth assignment of error asserts there was insufficient evidence to support a conviction for first degree murder. We will address Defendant's fourth assignment of error first because should this claim have merit, the remaining assignments of error become moot. Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), State v. Hearold, 603 So.2d 731 (La.1992).

Defendant argues there were too many errors committed during the trial to allow a verdict of guilty beyond a reasonable doubt that he committed the murder of Mr. Falgout during the course of a robbery.

In State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied , 03-2913 (La. 2/13/04), 867 So.2d 686, this court stated in considering questions of sufficiency of the evidence:

[A] reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel , 00-1629 (La. 4/3/02), 815 So.2d 50.

Additionally, in State v. Williams , 13-497, p. 4 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1240, writ denied , 13-2774 (La. 5/16/14), 139 So.3d 1024, this court noted:

"Evidence may be either direct or circumstantial." State v. Jacobs , 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied , 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied , [ 568 U.S. 838], 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams , 33,881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983) ), writ denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La.R.S. 15:438.
First degree murder, in pertinent part, is defined as:
A. First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated or forcible rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.

La.R.S. 14:30 (at the time the offense was committed).

"Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequence 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. Draughn , 05-1825, pp. 7-8 (La. 1/17/07), 950 So.2d 583, 592-93, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

During the trial, the following testimonies and exhibits were submitted by the State and Defendant:

(1). Addie Bourgeois testified that in April 2009, after arriving at Buffalo Wild Wings' parking lot in Lafayette, Louisiana, she was mugged (as she exited her vehicle) and robbed. She stated that even before she was outside her car, a man approached her, punched her in the face, and stole her purse. She described him as a light brown male, possibly Hispanic, wearing a green polo shirt. While Ms. Bourgeois never identified Defendant as the assailant, Todd Borel (a detective with the Lafayette Police Department) investigated the robbery and eventually connected Defendant to the crime.

Detective Borel testified he obtained a video from Buffalo Wild Wing's surveillance camera for the evening of the robbery. The video showed Ms. Bourgeois' vehicle pulling into the parking lot. Another vehicle pulled in right behind her vehicle. A man exited the second car, approached Ms. Bourgeois, struck her, and raced back to the waiting vehicle. The detective stated the next day he learned that one of Ms. Bourgeois' credit cards was used at a Wal-Mart store approximately forty-five minutes after the robbery. Detective Borel obtained Wal-Mart's surveillance video and identified Defendant, wearing a green polo shirt, and another man making a purchase with Ms. Bourgeois' credit card. That same evening, the credit card was used again at a gas station in Kaplan. A surveillance video was also obtained of one of the men using the credit card. The gas station's store clerk identified the man using the credit card as Darvin Williams. Mr. Williams was picked up and questioned by police. Mr. Williams admitted that he was with Defendant the night Ms. Bourgeois was robbed. Mr. Williams told the detective he was driving the vehicle that pulled up behind Ms. Bourgeois' vehicle and it was Defendant who assaulted and robbed Ms. Bourgeois. Detective Borel identified Defendant in court as the man who was with Darvin Williams at Wal-Mart wearing a green polo shirt. The detective said Defendant told him it was Mr. Williams who hit and robbed Ms. Bourgeois and that they had switched shirts afterwards.

(2). Mary Courville testified, on March 30, 2010, at approximately 1:30 a.m., she was attacked by a man after she left a bar in Lafayette and was walking towards her vehicle. She testified the man walked up behind her, punched her in the face, and stole her purse. She reported the assault and theft to the police, but she was not able to identify the perpetrator. Detective Ben Suire, a detective with the Lafayette City Police, worked Ms. Courville's case. On April 7, 2010, he learned that Ms. Courville's credit card was used at a local Circle K approximately twenty minutes after the assault and robbery took place. Detective Suire obtained the surveillance video from the Circle K for the morning of March 30, 2010. The video showed Defendant and another man making purchases matching the purchases made on Ms. Courville's card. At the time, Detective Suire did not know who the men were. He put out a "be on the look out" for the two men. In September 2010, he received information from another law enforcement agency that one of the men was Marcus Feast, who was incarcerated at the time. The detective talked with Mr. Feast. Shortly thereafter, Mr. Feast was charged with unauthorized use of a credit card, and Defendant was charged with simple robbery of Ms. Courville.

(3). Cassie Lacomb testified, on March 29, 2010, she arrived home with her two young children around 6:30 p.m. She lived in a subdivision close to Ambassador Caffery in Lafayette at the time. She ordered a pizza to be delivered. While waiting for the pizza to arrive, she heard a vehicle turn into her driveway. She then heard a commotion but thought a car was just turning around. A little later, she decided to call Pizza Hut because it was getting late, but then she saw a car sitting in the drive, behind her car, with the door opened. When she went outside, she saw a person laying on the ground, bleeding.

She called 911. It was the victim, Mr. Falgout, who had been delivering her pizza.

When deputies from Lafayette Parish Sheriff's Office arrived, they found the victim deceased on Ms. Lacomb's lawn. The police were able to identify the victim from the plates on his vehicle. He had no wallet or other identification on his person, although later, the police were advised the victim always carried a wallet. A bloody knife was located near the victim's body. The knife was sent to Acadiana Criminalist Laboratory for DNA analysis. Ms. Lacomb told the police she ordered the pizza around 7:30 p.m. After talking with the manager of Pizza Hut, the police determined that Mr. Falgout would have arrived at Ms. Lacomb's house at approximately 8:30 p.m. The police backtracked the possible routes the victim could have taken to deliver the pizza from the Pizza Hut to Ms. Lacomb's house and located a house in the neighborhood that had a surveillance camera facing the roadway. When they viewed the video, they saw the victim's car drive past at the approximate time it was determined it would have arrived at Ms. Lacomb's house. They also saw a black SUV following closely behind the victim's car. Attempts to identify the SUV were unsuccessful. However, in June 2010, the police received word from Acadiana Criminalist Laboratory that two DNA matches were located through CODIS (Combined DNA Index System) from the evidence sent for analysis, one DNA match was found on the knife and one on the victim's clothing. The DNA located on the victim's clothing was from a man who lived in Alexandria, but who was deceased at the time the victim was killed. The DNA located on the knife which stabbed the victim matched Defendant.

Detective Thad Badeaux, with the Lafayette Parish Sheriff's Office, said further inquiry established, while Defendant was living in Virginia at the time, he was in Lafayette on March 29, 2010, for an April 1, 2010 court date concerning the 2009 assault and robbery of Ms. Bourgeois. Detective Badeaux then obtained a police report, written by a Lafayette City deputy marshal, Shane Duplechin, who encountered Defendant and Marcus Feast in the early morning of March 30, 2010, in Mr. Feast's vehicle, a light gold Mercedes Benz. The marshal ran the plates on the Mercedes Benz and a background check on the occupants of the vehicle. Detective Badeaux testified, with this information they reexamined the March 30, 2010 surveillance recording of the victim's car on its way to deliver pizza to Ms. Lacomb's house and saw that shortly after the black SUV passed the surveillance camera, a light gold Mercedes Benz passed the camera. Shortly thereafter, the Mercedes Benz drove back in front of the surveillance camera, traveling at a high rate of speed on the wrong side of the street.

Detective Badeaux said he talked with Defendant on August 5, 2010, when he was in town for a court date. Defendant initially denied being with Mr. Feast on the evening of March 29, 2010. He eventually stated he was picked up by Mr. Feast in the early morning on March 30, 2010, shortly before Mr. Feast was pulled over by the city marshal. The detective stated when he told Defendant his DNA was on the knife that killed Mr. Falgout, Defendant said that was not possible and accused the police of planting the DNA. Defendant was arrested for the first degree murder of the victim. The detective took a buccal swab and sent it to Acadiana Crime Lab for comparison with the DNA found on the knife. The DNA analysis came back a positive match.

Detective Badeaux interviewed Mr. Feast on August 9, 2010, and again on August 17, 2010. During the first interview, Mr. Feast was vague about where he was on March 29 and 30, 2010. However, Mr. Feast drove the detective around town, retracing the routes he had taken on March 29 and 30, 2010. Mr. Feast told the detective he and Defendant were "scrapping," collecting metal to sell the next day. He drove through the neighborhood where Mr. Falgout was killed. At the second interview, Mr. Feast gave more information. He stated he drove Defendant to the neighborhood where Mr. Falgout was killed. Mr. Feast said he dropped Defendant off per his instructions, drove around a bit, then returned and picked Defendant up. Mr. Feast testified when Defendant jumped in the car, he told Mr. Feast to "Hurry up, get out of here. I think I just killed somebody."

Marcus Feast's testimony was consistent with Detective Badeaux's testimony. Mr. Feast explained he was vague about the incident in question during the first interview because he was high on drugs the night of the murder and really did not remember Defendant. However, when he was reminded about the marshal pulling him over in the early morning of March 30, 2010, he remembered more details of the incident. At the time of trial, Mr. Feast was on parole from a fifteen-year sentence imposed on a guilty plea for his involvement in the stabbing death of Mr. Falgout.

As noted, Defendant argues the evidence was insufficient to establish guilt beyond a reasonable doubt. He argues it was error to have permitted the testimony of Ms. Bourgeois and Ms. Courville. He asserts these offenses were submitted solely to show that Defendant was a bad man. However, as noted above, Defendant sought a writ of review on the issue of the admissibility of the testimony, and this court found no error in the trial court's ruling.

Defendant also argues Mr. Feast's testimony was not credible. He contends Mr. Feast lied initially when he denied Defendant was in his vehicle on the evening of the murder. He points out Mr. Feast admitted that at the time he was high on drugs on the night of the murder. However, it is well settled the fact finder's role is to weigh the credibility of witnesses. State v. Ryan , 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. An appellate court cannot second guess the credibility conclusions of the trier of fact but rather, should defer to the rational credibility and evidentiary determinations of the jury. Id. The appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental protection of due process of law." State v. Mussall , 523 So.2d 1305, 1310 (La.1988). Furthermore, "in the absence of internal contradictions or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient to support the requisite factual conclusion." State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir. 1993), writ denied, 93-2774 (La. 1/13/94), 631 So.2d 1163.

Defendant argues even under the standard of viewing all the evidence in a light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. However, Defendant and Mr. Feast were together in Mr. Feast's gold Mercedes Benz on the evening of the murder. Video surveillance showed Mr. Feast's vehicle following the victim's car on his way to deliver the pizza shortly before Mr. Falgout was discovered dead. Video surveillance from Circle K showed Mr. Feast and Defendant using Ms. Courville's credit card, stolen later in the evening. Deputy Marshal Duplechin testified he had pulled Mr. Feast's vehicle over at approximately 4:00 a.m. on March 30, 2010, and Defendant was in the car. Testimony established Mr. Feast drove Defendant to the site where Mr. Falgout was killed and then picked him up a few minutes later. Mr. Feast stated Defendant said he may have just killed a man. Additionally, Mr. Falgout's wallet was missing, seemingly cut out of his pocket, to be discovered a few days later tossed into some bushes. Finally, considering the only DNA found on the knife that killed Mr. Falgout was Mr. Falgout's and Defendant's, we find there was sufficient evidence for the jury to find, while Defendant was robbing Mr. Falgout, he intentionally stabbed him several times, which resulted in his death. As noted above, specific intent can be inferred from the circumstances surrounding the offense. Stabbing a person five times, three times in the chest, indicates specific intent to kill or inflict serious bodily harm. See State v. Dooley , 38,763, 38,764 (La.App. 2 Cir. 9/22/04), 882 So.2d 731writ denied, 04-2645 (La. 2/18/05), 896 So.2d 30.

Accordingly, when viewed in a light most favorable to the State, the evidence was sufficient to convict Defendant of first degree murder beyond a reasonable doubt.

II. Assignment of Error Number One.

Defendant objected at trial to Ms. Courville's and Ms. Bourgeois' testimonies regarding the assaults and robberies. Defendant argues the evidence of the other crimes was submitted by the State in "an attempt to show the jury that the defendant is a man of bad character [and] [t]he evidence at issue was improperly admitted, and it clearly prejudiced Aaron by depicting him as a 'bad man.' "

In State v. Garcia , 09-1578, pp. 53-54 (La. 11/16/12), 108 So.3d 1, 38, cert. denied , 570 U.S. 926, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013), the supreme court addressed, in detail, the proper use and admissibility of other crimes evidence, explaining:

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is, and has been, such evidence is not admissible to prove the accused committed the charged crime because he has committed other such crimes in the past or to show the probability he committed the crime in question because he is a man of criminal character. State v. Lee , 05-2098, p. 44 (La. 1/16/08), 976 So.2d 109, 139 ; State v. Patza, 3 La.Ann. 512 (1848).
Nevertheless, although evidence of other crimes, wrongs, or acts may not be admitted to prove the accused is a person of criminal character, evidence of other crimes has long been admissible if the state establishes an independent and relevant reason for its admission. See State v. Anderson , 45 La.Ann. 651, 654, 12 So. 737, 738 (1893). This very principle is embodied in our Code of Evidence at Article 404(B)(1), which provides, in pertinent part:
Except as provided in Article 412 [regarding a victim's past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
La.Code Evid. art. 404(B)(1). While still prohibiting the state from introducing evidence of other crimes, wrongs, or acts to show a probability the accused committed the charged crime because he is a "bad" person, the rule articulated in Article 404(B)(1) allows admission for other purposes, i.e. , to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La.Code Evid. art. 404(B)(1) ; Lee , 05-2098 at p. 44, 976 So.2d at 139 ; State v. Kennedy , 00-1554, p. 5 (La. 4/3/01), 803 So.2d 916, 920.

In the instant case, a Prieur hearing was held on May 30, 2012. Following the testimony of several officers regarding the other crimes incidents and how they solved the cases, the trial court took the matter under advisement. On July 5, 2012, the trial court ruled that the above two criminal acts as testified to by Ms. Courville and Ms. Bourgeois were admissible at trial. The trial court's ruling was affirmed. Richards , 12-1063.

The Louisiana Supreme Court in State v. Humphrey , 412 So.2d 507, 523 (La.1981), held:

When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.

See also State v. Cash, 03-853 (La.App. 3 Cir. 12/10/03), 861 So.2d 851, writ denied, 04-27 (La. 4/30/04), 872 So.2d 472, and writ denied, 04-232 (La. 5/7/04), 872 So.2d 1080 ; and State v. Perry , 12-298 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, writ denied, 12-2657 (La. 5/24/13), 116 So.3d 659.

We have reviewed the pretrial writ record and find Defendant makes no new arguments that were not made to this court pretrial. However, in brief to this court, Defendant contends the trial court erred because it had originally agreed to sever these two offenses from the current indictment because of their prejudicial nature after the Prieur hearing. This is an inaccurate statement. By the time of the Prieur hearing, the assault and robbery of Ms. Bourgeois had been resolved, and a court date concerning the charged offense of the assault and robbery of Ms. Courville was the reason Defendant was in Lafayette on March 29, 2010, the evening Mr. Falgout was killed. The two offenses severed from this current indictment were other offenses allegedly committed by Defendant. See Richards , 12-1063. Furthermore, the evidence of other crimes admitted at trial formed part of the narrative to such an extent that the State could not have accurately presented its case without reference to it. The facts of the other crimes helped to solve the current crime. State v. Brewington, 601 So.2d 656 (La.1992). The inquiry to be made was whether the other crimes were "part and parcel" of the crime charged and were not offered for the purpose of showing that Defendant was a person of bad character. Prieur , 277 So.2d 126.

Previously this court determined, while the other crimes evidence may have been prejudicial, there was little danger of unfair prejudice, confusion of the issue, or misleading of the jury. Accordingly, this assignment of error is without merit.

III. Assignments of Error Numbers Two and Three.

Defendant argues the trial court erred when it granted the State's challenge for cause of a potential juror, denied his challenges for cause of five potential jurors, and excused a juror for cause on its own motion without allowing the defense counsel the opportunity to question her.

Defendant contends he was deprived of his constitutional right to a fair and impartial jury. In State v. Odenbaugh, 10-268, pp. 23-26 (La. 12/6/11), 82 So.3d 215, 236-38, cert. denied , 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (second alteration in original), the supreme court stated:

The United States Constitution's Sixth Amendment guarantees the accused the right to a trial by an impartial jury. The Louisiana Constitution Article I, Section 17 (A) provides that a defendant has a right to challenge jurors peremptorily, with the number being fixed by law at twelve. LSA-C.Cr.P. art. 799. When a defendant uses all of his peremptory challenges, a trial judge's erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. State v. Jacobs, 99-1659, p. 5 (La. 6/29/01), 789 So.2d 1280, 1284 ; State v. Cross, 93-1189 (La. 6/30/95), 658 So.2d 683, 686 ; State v. Maxie, 93-2158 (La. 4/10/95), 653 So.2d 526, 534 ; State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280. A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the entire voir dire reveals the trial judge abused its discretion. Robertson, 92-2660, 630 So.2d at p. 1281. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. Cross, 93-1189 at 1192, 658 So.2d at 686 ; State v. Robertson, 92-2660 at 3-4, 630 So.2d at 1280 ; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error. Cross, 93-1189 at p. 6, 658 So.2d at 686 ; State v. Bourque, 622 So.2d 198, 225 (La.1993).
"A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied." State v. Jones, 474 So.2d 919, 926 (La.1985). However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Robertson, 92-2660 at p. 4, 630 So.2d at 1281. Thus, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate "(1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges." Id. at 1281. In the instant case, it is undisputed that defense counsel exhausted his peremptory challenges, and, therefore, need only show that the trial court abused its discretion by denying a challenge for cause.
....
[W]hile cognizant of the broad discretion afforded a district court when ruling on cause challenges, this Court has cautioned that a prospective juror's responses cannot be considered in isolation and that a challenge should be granted, "even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably [inferred]." State v. Jones, 474 So.2d 919, 929 (La.1985) ; See State v. Frost, 97-1771, p. 4 (La. 12/1/98), 727 So.2d 417, 423 ; Maxie, 93-2158 at 16-17, 653 So.2d at 535 ; State v. Hallal, 557 So.2d 1388, 1389-1390 (La. 1990) (per curiam); State v. Brown, 496 So.2d 261, 264-65 (La.1986) ; State v. Smith, 430 So.2d 31, 38 (La.1983). Yet a refusal to disqualify a prospective juror on grounds he is biased does not constitute reversible error or an abuse of discretion if, after further examination or rehabilitation, the juror demonstrates a willingness and ability to decide the case fairly according to the law and evidence. State v. Howard, 98-0064, pp. 7-10 (La. 4/23/99), 751 So.2d 783, 795-797 [.]

Louisiana Code Criminal Procedure Article 799, in pertinent part, provides that "[i]n trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant." In the instant case, defense counsel used only eleven peremptory challenges prior to twelve jurors being accepted by defense and the State and the one additional peremptory challenge allowed by the trial court to choose the two alternative jurors.

According to La.Code Crim.P. art. 797, in pertinent part, the State or Defendant may challenge a prospective juror for cause on the ground that:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
....
(4) The juror will not accept the law as given to him by the court[.]

Finally, as noted above, the trial judge is vested with broad discretion in ruling on challenges for cause.

This is necessarily so because the trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the parties' attorneys. State v. Lee , 93-2810 (La. 5/23/94), 637 So.2d 102, 108. Such expressions and intonations are not readily apparent at the appellate level where a review is based on a cold record. Id.

State v. Munson , 12-327, p. 9 (La.App. 5 Cir. 4/10/13), 115 So.3d 6, 12, writ denied , 13-1083 (La. 11/22/13), 126 So.3d 476.

Defendant's challenges for cause denied by the trial court:

Defendant alleged that potential jurors, Misty Sonnier, Caffery Dugas, Scott Domingue, Theresa Hagendorfer, and Keith Patin exhibited bias, prejudice, or partiality towards him during voir dire and were not adequately rehabilitated as claimed by the trial court.

However, even if the trial court abused its discretion when it denied the challenges for cause, this assignment of error has no merit in that Defendant cannot show prejudice. As noted, to prove reversible error, a defendant is required to show an erroneous denial of a challenge for cause and the use of all his peremptory challenges. See State v. Turner , 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612, writ denied , 97-2761 (La. 2/20/98), 709 So.2d 773.

In the current case, for each potential juror challenged for cause and subsequently denied by the trial court, Defendant had peremptory challenges available to excuse the juror after the trial court denied his challenge for cause. He was not forced to accept a juror he felt was prejudicial to his case because all of his peremptory challenges were used. Defendant has failed to show prejudice in this case.

The State's challenge for cause granted by the trial court:

Defendant argues the trial court granted the State's challenge for cause for prospective juror Chelsea Lewis. Ms. Lewis stated she did not believe that people on drugs or alcohol could form the requisite intent to commit a crime. Ms. Lewis testified her biological father committed murder when he was intoxicated. She stated he was not in his right mind when he did it and should have been given a second chance. The trial court questioned Ms. Lewis:

THE COURT: Yes. If someone by chance was on drugs or alcohol, it would affect your ability to find them guilty?
A. It does affect me. Two or three days ago if I would see him sober, I would not do this. I could find that he didn't know what he was doing and I would give him a second chance.
THE COURT: Would it affect your ability to find someone guilty or not guilty?
A. Yes.

Ms. Lewis then testified her husband was currently in prison for crimes committed while he was on drugs and alcohol. She admitted she had a drug and alcohol problem, and she was broke because of it. She continued to assert she did not believe someone on drugs could form the requisite intent to commit crimes.

The State challenged Ms. Lewis for cause pointing out she explicitly stated that a person on drugs and/or alcohol was not capable of forming the intent to commit a crime. Defense counsel objected, stating that Ms. Lewis did say she would try to be fair and impartial. The trial court granted the State's challenge for cause, stating:

THE COURT: I will excuse her for cause in regards to drugs and alcohol especially what she said about drugs and alcohol. She doesn't believe people can form an intent if they're on drugs and alcohol.
She may have a hard time. The State would have a hard time convincing her. She is excused for cause.

In brief, Defendant argues Ms. Lewis was sufficiently rehabilitated when, upon questioning by defense counsel, she had said that she would try to be fair should she be picked for the jury. However, in Munson, 115 So.3d 6, the defendant argued the trial court erred when it granted the state's challenge for cause of a potential juror who expressed strong reluctance to convict based on the uncorroborated testimony of a single witness. The fifth circuit noted, under Louisiana jurisprudence, a single witness' testimony was usually sufficient in the absence of internal contradiction or irreconcilable conflict with the evidence. After an attempt to rehabilitate the juror, the trial court stated " 'I'm convinced after listening to Ms. Herbert, no matter what the state proves in testimony alone, she thinks there is a high burden, higher burden, so I'm going to grant their motion for cause.' " Id. at 13.

In the current case, Ms. Lewis' opinion regarding the effect of drugs and alcohol on the mental capacity to form intent placed an impossible burden on the State. If a defendant proves he was intoxicated at the time of the offense, the state then has the burden of negating that defense by proof beyond a reasonable doubt. Ms. Lewis's responses reflected a bias and an inability to render a judgment according to the law. We cannot say the trial court abused its discretion when it granted the State's challenge for cause.

Trial court's release of a potential juror for cause:

Simone Broussard told the State she did not want to be on the jury. She stated she was not a good judge of character. She suffered from anxiety and was on medication for the anxiety. Although she had no opinion of Defendant's guilt or innocence, she stated it made her very nervous having to make judgment on someone. She said if she were picked for the jury she would not be able to communicate with the other jurors. Later, when the prospective jurors were asked by the State if the State met its burden of proof could they convict Defendant to a life sentence, Ms. Broussard repeated she did not "want to be the deciding factor."

The State challenged Ms. Broussard for cause because of her apparent anxiety and her admission she would not be able to communicate with the rest of the jurors. The trial court denied the challenge. Defense counsel thought Ms. Broussard would work it out if she were chosen as a juror.

The trial court later stated:

THE COURT: Okay, Ms. Simone Broussard, Number 120. It was observed in the bathroom by court personnel during the break-she's been complaining about anxiety problems, telling me she has anxiety problems. She's breaking down in the bathroom right now crying hysterically. The inference was made that they wouldn't be able to get her out of the bathroom. So, I've noticed as the day progresses that she's getting quieter and quieter and quieter and not answering the questions. She's being very low. I think there's cause there, obviously. She won't be able to pay attention in this trial if she's breaking down and having problems. So I'm releasing her at this point. I don't think she could make it through the trial.

Defense counsel objected without reason. In brief, Defendant argues he did not have an opportunity to question Ms. Broussard. The record shows defense counsel questioned Ms. Broussard during the voir dire process. Moreover, while defense counsel objected, he did not state a reason for his objection. A defendant is limited to the grounds he stated at the time of the trial court's ruling to support his objection. A new basis for an objection may not be first raised on appeal. State v. Mitchell, 08-136, p. 20 (La.App. 5 Cir. 1/13/09), 7 So.3d 720, 733.

Ms. Lewis demonstrated her inability to be on a jury by her statement that she would not be able to or wanted to make a decision or communicate with the jury. Moreover, her distress would only serve as a distraction.

There is no merit to Defendant's assignments of error numbers three and four.

DECREE

For the foregoing reasons, Defendant's conviction and sentence are affirmed.

AFFIRMED.

      State v. Prieur , 277 So.2d 126 (La.1973), superseded, in part, by statute , La.Code Evid. art. 1104, as recognized in State v. Taylor , 16-1124, 16-1183 (La. 12/1/16), 217 So.3d 283.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Gary JEANSONNE v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS YOUTH SERVICES, OFFICE OF JUVENILE JUSTICE and Sedgwick Claims Management Services
    17-635
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
    Maria A. Losavio, Losavio Law Office, LLC, Post Office Box 12420, Alexandria, LA 71315, (318) 767-9033, COUNSEL FOR PLAINTIFF/APPELLANT: Gary Jeansonne
    Jeff Landry, Attorney General, Bernetta Y. Bryant, Assistant Attorney General, 900 Murray Street, Suite B-100, Alexandria, LA 71309, (318) 487-5944, COUNSEL FOR DEFENDANT/APPELLEE: Department of Public Safety and Corrections Youth Services, Office of Juvenile Justice
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.
   GREMILLION, Judge.

Gary Jeansonne sought benefits from his employer, the State of Louisiana, Department of Public Safety and Corrections Youth Services, Office of Juvenile Justice, in connection with injuries he allegedly sustained in two work-related accidents. The State denied both claims. The workers' compensation judge (WCJ) concluded that the claimant proved only one of the alleged accidents and denied penalties and attorney fees as to both claims. The claimant appeals. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Gary Jeansonne worked at the Cecil J. Picard Youth Center (hereinafter "the Center") in Bunkie, Louisiana, in the position of "Maintenance 2." He began working there in 2001. His supervisor, Mr. Chris Hines, described Mr. Jeansonne as a "good employee" and a "[h]ard worker." Mr. Hines also consistently gave Mr. Jeansonne good evaluations. Also, according to Mr. Hines, Mr. Jeansonne did his work without complaining and was consistent in his work attendance.

Mr. Jeansonne last worked at the Center on March 17, 2016. On June 2, 2016, Mr. Jeansonne filed a disputed claim for workers' compensation form in which he asserted that he injured his back in the course and scope of his employment on June 10, 2015 and again on or about March 9, 2016. The claim was brought against the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice and Sedgwick Claims Management (hereinafter collectively referred to as "the State"). The State answered and denied that the claimant sustained an injury on or about the dates set forth.

The matter proceeded to trial. Mr. Jeansonne testified that the first alleged workplace accident occurred while he was assisting in the kitchen during the supper shift on June 10, 2015. He explained that, after lifting a pot to drain grease from it, he experienced pain radiating into his right leg. Mr. Jeansonne testified that the pain was immediate; that he knew something was wrong; that he told the cook on duty, Sarah Howard, that he had hurt himself; and that he sat down after they caught up on the work. Mr. Jeansonne's accident was corroborated by the testimony of Ms. Howard. During the course of the evening's work, Mr. Jeansonne again experienced back pain radiating into his hip and groin area. He explained that Ms. Howard then advised him to sit down again, which he did.

Mr. Jeansonne testified that the following morning, he telephoned his supervisor, Christopher Hines, to tell him that he was unable to come to work due to back pain but did not inform Mr. Hines that the back pain was work related. Mr. Jeansonne testified that Mr. Hines visited him at his home three days later. Again, Mr. Jeansonne did not tell Mr. Hines that the pain was work related. When asked about this, Mr. Jeansonne testified, "Because I-I love my job. I'm dedicated to my job. I invest a lot in my job, I don't-I just-I like my job.... the right thing to do is to put it on my work-my-my insurance, so I can get back to my job and go to-back to work."

On July 2, 2015, Dr. George Williams began treating Mr. Jeansonne for back pain. Mr. Jeansonne's medical records from this visit indicate that the injury occurred at home, and the record from this initial visit with Dr. Williams was to prove pivotal in the WCJ's decision.

Mr. Jeansonne asserted that the report is "not accurate" and that he told Dr. Williams that the injury happened at home because he "wanted to go back to work." Mr. Jeansonne explained that, other than the incident in the Center's kitchen, nothing happened at home or elsewhere to explain why his back started hurting at that time. Dr. Williams testified:

Q. Okay. Did you ask him why he didn't tell you about the work accident before you did back surgery on him?
A. You know, he may have. It may have been that he didn't want to fool with workman's [sic] comp, having to go through all the rigmarole, you know.

The remainder of Dr. Williams's records demonstrate widely varying dates of injury, including notations about the accident having occurred at home.

Dr. Williams ultimately performed back surgery on Mr. Jeansonne to fuse the L4-5 lumbar vertebral bodies on July 17, 2015. Mr. Jeansonne testified that Mr. Hines and the regional supervisor over the Center, Johnny Qualls, visited him after his surgery and that he again did not report a work-place accident to them.

Mr. Jeansonne utilized his private health insurance for his medical expenses, and he used personal leave time during the recovery period. Theresa Jeansonne, Mr. Jeansonne's wife, also testified at the hearing and explained that they chose to use private health insurance because they thought that Mr. Jeansonne would be unable to have the surgery if he reported the injury as a workers' compensation accident. Alternatively, she said they thought that it would be quicker under private health insurance, thus allowing Mr. Jeansonne to return to work sooner.

On March 8, 2016, Dr. Williams granted Mr. Jeansonne a full release to return to work. Mr. Jeansonne stated that when he was reporting back to work on March 9, 2016, he "felt good" and as if he "could do the job ... no problem," even knowing that he was going to have to do his full duties. Mr. Hines, though, assigned an inmate to assist Mr. Jeansonne with his tasks, but Mr. Jeansonne explained that the assistant never returned after lunch on the second day. Mr. Hines testified that he did not know whether the assistant left at some point because it would have been Mr. Jeansonne's job to supervise him. Mr. Jeansonne testified that he spent the initial days marking the soccer field, grouting the showers, working on vanities, removing vanities, removing faucets, and lifting toilets. He explained that when he went home every day, he would "go straight to bed" because his back was "getting ... worse and worse." When asked whether there was a specific task that caused him to feel pain, Mr. Jeansonne said, that at midday on March 17, he had been changing out a faucet in one of the facility's cabins and, "I felt that something was broken again....That's the way it felt when I come out from under that lavatory. I said 'Well, something-something's not right.' "

Mrs. Jeansonne testified that "from March 9 on," Mr. Jeansonne complained of back and leg pain. She stated that his complaints subsequently increased and that every night was worse than the night before. Mrs. Jeansonne testified that Mr. Jeansonne had indicated to her that he felt like he had reinjured himself at work. She could not recall specifically what Mr. Jeansonne said had caused him to reinjure his back, but she testified that he told her during this time period that he was "[l]ifting up on a commode, grouting floors, wall, on the lawnmower ...."

Mr. Jeansonne said that on March 17, 2016, he went to the Center's office, turned in his keys, and told Mr. Hines, "I'm broken up. The wheel is broken" and "I can't perform the duties ...." Mr. Jeansonne testified that when Mr. Hines asked him whether his back was all right, he answered, " 'I don't know.' " He testified that Mr. Hines also asked whether it was job-related to which he responded, " 'I can't tell you if it was job-related,' " and " 'I know I didn't do nothin' [sic] at my house.' " According to Mr. Hines, when he asked Mr. Jeansonne if he had gotten hurt on the job, Mr. Jeansonne said, "No, Chris, I just can't do this kinda [sic] work anymore. The wheel is broken." Regarding the latter statement, Mr. Hines explained that he did not understand what it meant. Thereafter, Dr. Williams restricted Mr. Jeansonne from work again.

Mr. Jeansonne testified that he subsequently reported the alleged June 10, 2015 accident to the Center's human resources representative, Carolyn Hollins, on March 31, 2016. To corroborate this testimony, Mr. Jeansonne introduced Ms. Hollins' adjuster's log into evidence. An entry dated April 14, 2016 reads, in pertinent part:

The claimant contacted me on 3/31/16 around 1:50 P.M. to advise of this 2015 injury. He indicated that he told his boss that he was in back pain following the incident but didn't [sic] inform him that the injury occurred at work. When asked why hes [sic] just reporting it he stated that he didn't [sic] want to lose his job or sue his employer by filing a comp claim. He just wanted to get better and return to work. He also mentioned that he injured his back while working at the Department of Education during Hurricane Gustav but failed to report that injury as well which required back surgery. He re-injured his back at work on 6/10/15 resulting in additional surgery to his pre-existing condition.

Mr. Jeansonne admitted that this conversation with Ms. Hollins was the first time he reported the alleged June 10, 2015 accident as work-related to someone associated with the State. He testified that during this conversation, he did not report the alleged March 9, 2016 accident to Ms. Hollins. Mr. Jeansonne admitted that he knew he was to report workplace accidents. He also confirmed that he had reported a work accident in 2014. At the hearing, Mr. Hines also testified that his job duties include instructing employees on the proper protocol for reporting work accidents. Pursuant to this, he said that he has held safety meetings at which he reviews the center's policies and forms. He specifically confirmed that Mr. Jeansonne had attended such a meeting.

Mr. Hines testified that Mr. Jeansonne never told him that his back pain was work-related. Rather, Mr. Hines explained that he first learned of an alleged June 2015 workplace accident on March 31, 2016 from Ms. Hollins, who instructed him to contact Mr. Jeansonne and Ms. Howard to get statements from them. Mr. Hines stated that he obtained Mr. Jeansonne and Ms. Howard's statements and that he also completed an "unusual occurrence report" concerning the alleged June 2015 accident. Mr. Hines testified that he was first notified about the alleged March 2016 workplace accident by Ms. Hollins on June 21, 2016 at which time he wrote a statement about what he recalled happening when Mr. Jeansonne came into his office on March 17, 2016.

After the alleged March 2016 accident, Mr. Jeansonne returned to Dr. Williams for treatment. Regarding his first visit on May 24, 2016, Mr. Jeansonne testified that he reported to Dr. Williams that he had injured himself at work in June 2015 and reinjured himself in March 2016. Ultimately, Dr. Williams ordered an MRI, which revealed that Mr. Jeansonne's L3-4 intervertebral disc is herniated and compressing the nerve root. Dr. Williams has recommended that Mr. Jeansonne undergo surgery again. Dr. Williams testified that Mr. Jeansonne suffered an accident, but he could not say whether the accident occurred at home or at work nor which tasks would have caused the renewed back problem. Dr. Williams also opined, in response to cross-examination questioning, that Mr. Jeansonne's condition could represent a degenerative process. Additionally, in their respective testimonies, Dr. Williams and Mr. Jeansonne both confirmed that, prior to the alleged accidents, Mr. Jeansonne had been treated for back pain and had undergone surgeries on his back.

After the hearing, the WCJ rendered a judgment finding that the claimant sustained an accident in the course and scope of his employment on June 10, 2015 and was entitled to temporary total disability benefits from June 19, 2015 through March 8, 2016 as well as out-of-pocket medical expenses. However, concerning the June 2015 accident, the WCJ rendered judgment in favor of the State, concluding that the claimant failed to prove that he sustained an accident in the course and scope of his employment on or about March 9, 2016. In so ruling the WCJ stated:

Mr. Jeansonne is a person of, in my view, small credibility, if any credibility at all. We have an individual who seems self-centered. He testified he never reported this because he was afraid he would lose his job. This was just the belief Mr. Jeansonne had that Mr. Qualls said was prevalent in the rural community. There is no direct evidence that Mr. Jeansonne knew of anyone who had been retaliated against for reporting a job accident who had lost a job for having had a job accident and a job injury, and again, it's just a belief of Mr. Jeansonne. He was willing to misrepresent to Dr. Williams that this was not a job accident. He told Dr. Williams it occurred at home, it was-he said it occurred eight weeks prior to seeing Dr. Williams on one occasion, which would have made the accident or the injury or the back problem arise prior to June 10, 2015. He was willing to misrepresent to his health insurer Blue Cross and Blue Shield, that this was not a job-related claim.

Nevertheless, despite the facts enumerated above, all of which-if impacting upon credibility-undermine Mr. Jeansonne's claim of a first accident, the WCJ found that Mr. Jeansonne had proven the first accident by a preponderance of the evidence.

The WCJ also denied Mr. Jeansonne's claim for penalties and attorney fees.

In response, the State filed a suspensive appeal regarding the WCJ's finding of an accident in June 2015. Additionally, the claimant filed a devolutive appeal. However, the State subsequently filed a motion to dismiss its appeal, so only the claimant's appeal remains.

ASSIGNMENTS OF ERROR

In his appeal, the claimant asserts as error:

1. The trial court erred in finding [the employer] had a reasonable basis for controverting the claims and erred in not awarding penalties and attorney's fees for [the employer]'s denial of the work accidents.
2. The trial court erred [in] finding Mr. Jeansonne failed to prove he suffered a compensable work accident on or about March 9, 2016.
3. The trial court erred in ruling against the injured worker by citing Dr. Williams['s] testimony that the second injury could possibly be just a progression over time.
4. The trial court erred in not awarding penalties and attorney's fees for failure to pay indemnity benefits and failure to authorize medical treatment for either of the work accidents.
5. An award of attorney's fees is warranted for the efforts put forth prior to the appeal and additional attorney's fees are warranted for appellate work.

ANALYSIS

Assignment of Error 1

As mentioned above, the State withdrew its appeal of the WCJ's finding that the claimant proved that a workplace injury occurred in June 2015. Therefore, the only matters remaining concerning the June 2015 accident are the claimant's assertions that the WCJ erred in finding that the State had a reasonable basis for controverting the claims and in not awarding penalties and attorney fees. In response, the State contends that the claim was reasonably controverted and that the claimant is not entitled to penalties and attorney fees due to the claimant's failure to notify the State of the accident until March 31, 2016; the claimant's "inconsistent statements to his treating physician" regarding the circumstances of his injury; and "the confusing testimony of [the claimant]'s own treating physician."

One purpose of the workers' compensation scheme is the prompt provision of compensation and medical benefits to an employee who has been injured in the course and scope of employment. Lafayette Bone & Joint Clinic v. Louisiana United Bus. SIF , 15-2137, 15-2138 (La. 6/29/16), 194 So.3d 1112. Accordingly, La.R.S. 23:1201(F) provides guidelines for compliance, such as the time and place for payment, and states that the "failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty ... together with reasonable attorney fees for each disputed claim[.]" However, penalties and attorney fees "shall not apply if the claim is reasonably controverted[.]" La.R.S. 23:1201(F)(2).

The State bears the burden of proving that it has reasonably controverted the claim to preclude the award of penalties and attorney fees. Buchanan v. LUBA Workers' Comp. , 14-1000 (La.App. 3 Cir. 2/4/15), 158 So.3d 253. An employer controverts the claim by demonstrating that it "engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time [the State] refused to pay all or part of the benefits allegedly owed." Brown v. Texas-LA Cartage, Inc. , 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. The decision to assess penalties and attorney fees is a question of fact that is in the great discretion of the WCJ, and it should not be reversed on appeal absent manifest error. Cobb v. Lafayette Parish Sch. Bd. , 16-990 (La.App. 3 Cir. 5/17/17), 220 So.3d 825, writ denied , 17-1481 (La. 11/13/17), 230 So.3d 209 ; see also Johnson v. Great West Cas. Co. , 15-981 (La.App. 3 Cir. 3/16/16), 186 So.3d 1276, writ denied , 16-0703 (La. 6/3/16), 192 So.3d 753. The Louisiana Supreme Court has instructed us that a two-part test determines whether a trial court has committed manifest error:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
See Mart v. Hill , 505 So.2d 1120, 1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.

Stobart v. State, through Dep't of Transp. & Dev. , 617 So.2d 880, 882 (La.1993).

There is no disputing the unusual circumstances of Mr. Jeansonne's claim. He did conceal the fact that he was hurt on the job from his supervisors, his healthcare provider, and his healthcare insurer. Contesting the validity of Mr. Jeansonne's claim under these circumstances cannot be deemed a frivolous legal dispute, and it certainly cannot be contested that the State possessed "factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time [it] refused to pay all or part of the benefits allegedly owed." Brown , 721 So.2d at 890.

Based on the foregoing, we conclude that the WCJ was not manifestly erroneous in finding evidence that the State reasonably controverted the June 2015 claim. See Brown , 721 So.2d 885. Therefore, we affirm the WCJ's decision not to award penalties and attorney fees.

Assignments of Error 2 and 3

Because the findings of the WCJ regarding Mr. Jeansonne's return to work in March 2016 and the issue of whether his new complaints are work-related rather than the result of degenerative changes, we will address Mr. Jeansonne's second and third assignments of error together.

An employee is entitled to compensation from an employer if the employee proves "personal injury by accident arising out of and in the course of his employment" by a preponderance of the evidence. La.R.S. 23:1031(A) ; see also Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253. Louisiana Revised Statutes 23:1021 defines "accident" as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."

An employee's testimony alone may prove the occurrence of an unwitnessed work-related accident if: "(1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident." Marange , 93 So.3d at 1257 ; see also Bruno v. Harbert Int'l Inc. , 593 So.2d 357 (La.1992). In this latter regard, corroboration can be provided by medical evidence as well as the testimony of the claimant's co-workers, spouse, or friends. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La. 1/19/11), 56 So.3d 215 ; see also Bruno , 593 So.2d 357.

On appellate review, the factfinder's determinations regarding the credibility of the claimant's testimony and whether the claimant has discharged his burden of proof are factual determinations that should not be disturbed unless clearly wrong or manifestly erroneous. Marange , 93 So.3d 1253. Under this standard of review, the appellate court should "focus on whether the trier of fact's determinations were reasonable based on the record as a whole" rather than re-weigh the evidence. Id. at 1259. If there are two permissible views of the evidence, then the factfinder's choice between them cannot be manifestly erroneous. Ardoin , 56 So.3d 215.

Considering the foregoing legal standard and in light of the claimant's assignments of error, we review the WCJ's determination that the claimant failed to prove that he sustained a compensable work-place injury on or around March 9, 2016. In the course of rejecting the claim, the WCJ noted the claimant's prior back problems and surgeries as well as the claimant's misrepresentations to his employer, doctor, and insurer about his prior back problems. We also note that these were all circumstances related to the first accident. The WCJ also pointed out that this would have been an unwitnessed accident. Discussing the circumstances following the alleged accident, the WCJ recalled that "there was a contact from Mr. Jeansonne March 31, 2016, which ... would have been in the same month, reporting the 2015 injury" but that during this conversation "[n]othing was reported by Mr. Jeansonne about any accident that occurred on any date in March of 2016 ...." The WCJ thus continued: "There's no support for an argument that Mr. Jeansonne reported any instance in March as an accident to any person in authority over him at the [employer]'s facility."

The claimant has additionally asserted that the WCJ "erred in ruling against the injured worker by citing Dr. Williams['s] testimony that the second injury could possibly be just a progression over time." In oral reasons for ruling, the WCJ referenced Dr. Williams's deposition testimony and stated:

[Dr. Williams] was asked, "In fact is it your opinion more probable than not that the work accident of March 2016 caused the worsening at L-3, 4 level that was seen on the new MRI?" and he said at least to be symptomatic.
....
Recall when Dr. [Williams] was asked previously by Counsel for the employer, could this ... be nothing more than a progressive degeneration of what was already taking place in Mr. Jeansonne's back? And his response was yes, it can.

We are constrained to review the entire record to determine whether the WCJ's conclusions are manifestly erroneous; accordingly, we are not allowed to parse Dr. Williams's testimony and the medical record to find "some evidence" supporting or controverting the WCJ's opinion; rather, we must view the record in its entirety to see whether the WCJ's findings were reasonable.

The occurrence of the first accident is not before this court on review. But the circumstances surrounding it are clearly germane to the discussion of the second. Dr. Williams treated Mr. Jeansonne for a number of months, culminating in spinal fusion surgery. On March 8, 2016, Dr. Williams saw Mr. Jeansonne and noted that his muscle testing was normal in all areas. Ankle, lower leg, and upper leg sensation testing was all normal. Every test, in fact, was normal except that he demonstrated a positive Fabere's test on the right. This test had been negative in January 2016. Mr. Jeansonne told Dr. Williams, according to the records, that he was continuing to experience pain, which was aggravated by sitting. Further, Mr. Jeansonne also complained that he was still experiencing pain radiating into his right buttock. Nevertheless, Dr. Williams released Mr. Jeansonne to return to work. Of this work release, Dr. Williams testified:

Q. All right. So what-what was it that made you think he could go back to work on [March 8, 2016]?
A. Well, he was doing reasonably well. But, to be honest with you, he may have told me he wanted to go back to work or needed to go back to work, so we obliged.

At Dr. Williams's direction, Mr. Jeansonne had been subjected to several diagnostic imaging sessions. An MRI taken on July 2, 2015 demonstrated the "Right posterolateral disc protrusion" for which Mr. Jeansonne underwent surgery, his injury from the first accident. That same study revealed "circumferential disc bulging" and "facet hypertrophic changes" at the L3-4 level, the level at which Dr. Williams proposes surgery now.

In May 2016, Dr. Williams ordered a new MRI. That MRI was performed on July 7, 2016, just over a year after the previous study. This MRI showed that Mr. Jeansonne had developed "Significant central spinal stenosis of L3-4 level." Clearly, according to the objective findings of the two MRIs, Mr. Jeansonne's condition changed between July 2, 2015 and July 7, 2016 other than the spinal surgery. And it is true that, while Dr. Williams said the findings at L3-4 could have been caused by a degenerative process, his testimony was that the findings were caused by "some type of accident." Mr. Jeansonne identified an incident after working under a sink when he felt that something was "broken again."

The WCJ then stated that in workers' compensation cases involving gradual deterioration or progressive degeneration, "there is some particular incident that the worker was still able to point to which allowed the Courts to conclude that [the worker] had established a precipitous identifiable event." Here, by contrast, the WCJ concluded that "there was no specific incident ever identified [by] Mr. Jeansonne or [Mrs.] Jeansonne." We disagree. There is no reasonable basis in the record for this finding; Mr. Jeansonne did identify an incident.

The WCJ concluded:

In an attempt to balance all of the evidence and give proper weight to all this evidence considering foremost a lack of believability of Mr. Jeansonne, and even viewing the evidence in light favorable to Mr. Jeansonne, it's this Court's conclusion that Mr. Jeansonne has left this evidence concerning any type of incident that may be classified as an accident under the Workers' Compensation Act in March of 2016 at best evenly balanced.

After reviewing the record and considering the deference owed to the WCJ's determinations concerning credibility and whether the claimant met his burden of proof, we conclude that the WCJ's decision was not reasonable based on the record as a whole. While the March 17 incident was unwitnessed, Mr. Jeansonne's actions thereafter in reporting that he could no longer work, and the objective findings of the MRI demonstrate an accident and an injury. Further, Dr. Williams opined that the L3-4 disc injury was caused by an accident.

With regard to Mr. Jeansonne's credibility, it is true that he exhibited what can, at best, be described as poor judgment. However, the WCJ particularly keyed on the fear Mr. Jeansonne expressed regarding the potential of losing his job after an on-the-job injury. The WCJ dismissed this fear as unfounded because Mr. Jeansonne had no firsthand knowledge of anyone losing a job in such circumstances. We note, though, that Mr. Johnny Qualls, Office of Juvenile Justice Regional Director for the Central Southwest Region, testified that this belief was relatively common in this community.

Mr. Jeansonne was a long-term employee of the facility who, by every account, demonstrated dedication to his position, worked consistently and without complaint, and-unwisely-opted to forego or avoid or circumvent the workers' compensation apparatus to expedite his treatment and return to work. Mr. Jeansonne chose to utilize his sick leave and vacation time rather than receive weekly indemnity benefits during his recovery from the July 2015 surgery. He pushed his orthopedic surgeon to return him to work, again, ill-advisedly. He returned to work with the understanding that the facility was going to provide him with an assistant, who did not return to help him after a day and a half, yet he still voiced no complaints and continued to work. These are the actions of a person who wants to work.

We, therefore, reverse the WCJ and find that Mr. Jeansonne did carry his burden of proof regarding the second accident. Mr. Jeansonne is awarded temporary total disability benefits from March 18, 2016 at the rate of $440.53 per week, together with judicial interest from the due date of each installment.

Assignment of Error 4

Mr. Jeansonne has also asserted that the trial court erred in finding that the State had a reasonable basis for controverting the claim regarding the March 2016 accident and in failing to award penalties and attorney fees. We disagree. The State's arguments can hardly be deemed frivolous. Mr. Jeansonne had a very long history of spinal problems. He failed to report either accident to his supervisors until after he had undergone surgery from the first. This assignment of error lacks merit.

Assignment of Error 5

Lastly, Mr. Jeansonne asserts that this court should award him attorney fees for the work done prior to and on appeal. The same considerations that preclude an award of attorney fees as discussed in assignment of error 4 preclude any attorney fees on appeal. The State did reasonably controvert Mr. Jeansonne's claim. The fact that the State ultimately lost on appeal does not free this court to punish it for exercising its right to trial. Awards of penalties and attorney fees in workers' compensation cases are not automatic and only attach when the statutory requirements are met. See Sharbono v. Steve Lang & Son Loggers , 97-110 (La. 7/1/97), 696 So.2d 1382 ; Jeanise v. Cannon , 04-1049 (La.App. 3 Cir. 2/23/05), 895 So.2d 651, writs denied , 05-785, 05788 (La. 5/13/05), 902 So.2d 1021.

SUMMARY

The evidence establishes that Mr. Gary Jeansonne sustained two accidents in the course and scope of his employment with the State of Louisiana, Department of Public Safety and Corrections Youth Services, Office of Juvenile Justice. The WCJ

manifestly erred in finding that no accident was proven to have occurred on March 17, 2016. Mr. Jeansonne is entitled to temporary total disability benefits from March 18, 2016 in the amount of $440.53 per week, together with judicial interest from the due date of each installment.

All costs of this proceeding, in the amount of $1,624.45, are taxed as costs to the State of Louisiana, Department of Public Safety and Corrections Youth Services, Office of Juvenile Justice.

AFFIRMED IN PART, REVERSED IN PART.

Amy, Judge, concurs in part and dissents in part and assigns reasons.

Conery, Judge, affirms in part and dissents in part for the reasons assigned by Judge Amy.

AMY, J., concurring in part, dissenting in part.

I concur in the majority's determination that the workers' compensation judge was not manifestly erroneous in finding evidence that reasonably controverted the June 2015 claim. The record indicates that, after the June 2015 accident, Mr. Jeansonne misrepresented the origin of his back pain to his employer, doctor, and health insurance provider. Thus, considering the foregoing, I agree with the majority that the workers' compensation judge's decision not to award penalties and attorney fees should be affirmed. I further agree to deny the request for attorney fees for work performed on appeal.

However, I disagree with the majority's determination that Mr. Jeansonne carried his burden of proof and is entitled to benefits regarding the alleged accident on or around March 9, 2016. The employee must prove by a preponderance of the evidence that he suffered an accident, which is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La.R.S. 23:1021(1). See also Marange v. Custom Metal Fabricators, Inc. , 11-2678 (La. 7/2/12), 93 So.3d 1253. An employee's testimony alone may prove an unwitnessed accident if no other evidence discredits the testimony and if the circumstances following the alleged incident corroborate the testimony. Id. The workers' compensation judge's determinations regarding credibility and the burden of proof should not be disturbed unless clearly wrong or manifestly erroneous. Id. The appellate court should not re-weigh the evidence but rather should focus on whether the determinations were reasonable based on the record as a whole. Id. If there are two permissible views of the evidence, then the workers' compensation judge's choice between them cannot be manifestly erroneous. Ardoin v. Firestone Polymers, L.L.C. , 10-0245 (La. 1/19/11), 56 So.3d 215.

Here, regarding the alleged March 9, 2016 accident, the workers' compensation judge discussed Mr. Jeansonne's long history of back problems and surgeries, as well as Dr. Williams' deposition testimony that Mr. Jeansonne's back pain could be progressive degeneration. The workers' compensation judge stated that this would have been an unwitnessed accident and concluded that evidence cast doubt on Mr. Jeansonne's version of events. Specifically, he noted that, when Mr. Jeansonne contacted his human resources representative on March 31, 2016, he reported the June 2015 accident but not the alleged March 9, 2016 accident. Additionally, when Mr. Jeansonne testified about the tasks he performed upon his return to work in March 2016, he was asked to identify the specific task that caused his renewed back pain, and he responded, "It was all of the above, I would think." Mr. Jeansonne testified that when he left work on March 17, 2016 and Mr. Hines asked if his renewed back pain was job related, he answered, "I don't know." Moreover, the workers' compensation judge stated that his decision was made "considering foremost a lack of believability of Mr. Jeansonne[.]" Accordingly, given the deference afforded the workers' compensation judge's assessment of credibility, I conclude that the workers' compensation judge's determination that Mr. Jeansonne failed to prove a workplace accident on or around March 9, 2016 was not clearly wrong or manifestly erroneous. In turn, I agree with the majority's determination that the workers' compensation judge did not err in finding that the State had a reasonable basis for controverting the claim.

For these reasons, I concur in part and dissent in part.

      The record also lists Mr. Jeansonne's official title as "Maintenance Repair 2."

      The disputed claim form listed the State as the "Office of Juvenile Justice/PICard [sic] Center," but the claimant filed a first amending and supplemental petition to change the employer name to "Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice."

      The record reveals that Sedgwick Claims Management is the third-party administrator for the State, including for Mr. Jeansonne's claim.

      The medical report contains the following description: "The onset was sudden with injury that occurred about four weeks ago. The injury occurred at home. The patient felt a sharp pain. He could not move."

      The record contains three exhibits that are purportedly Ms. Howard's statement regarding the June 2015 incident. In her deposition testimony, Ms. Howard explained that she handwrote her statement as well as a copy for Mr. Hines and that Mr. Jeansonne and/or Mrs. Jeansonne also handwrote a copy for themselves. Ms. Howard confirmed that her statement is dated June 10, 2015, signed by her, and reads: "Gary was cleaning skillet and draining water in pot and went to pick up the pot to dump and his back went out as he lifted the pot to dump it, as he was pulling the pan of beans out of the top of warmer his back gave out."

      The medical report dated May 24, 2016 contains the following: "The onset was sudden with injury which occurred on 3/17/2016. The injury occurred at work." The report does not include reference to a June 2015 work-place accident.

      The workers' compensation judge was referencing the claimant's phone call with the human resources representative, Ms. Hollins, on March 31, 2016.


text:
    Latashia V. PEREZ, Both Individually and on Behalf of Unborn Child of Travis Chiokai (Deceased) v. IRBY CONSTRUCTION COMPANY, et al.
    18-192
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
    John J. Rabalais, Janice B. Unland, Rabalais Unland, 1404 Greengate Drive, Suite 110, Covington, LA 70433, (985) 893-9900, COUNSEL FOR DEFENDANTS/APPLICANTS: Irby Construction Company, Old Republic Insurance Company
    Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/RESPONDENT: Latashia V. Perez, Latashia V. Perez, o/b/o Unborn Child
    Court composed of, Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

Applicants, Irby Construction Company and Old Republic Insurance Company, seek supervisory review of the decision of the workers' compensation judge's (WCJ) failure to maintain their exception of no cause/right of action. For the reasons that follow, we deny Applicants' writ application.

FACTS AND PROCEDURAL POSTURE

Travis Chiokai was killed on November 7, 2017, in a work-related accident. At the time, Mr. Chiokai was not married, but was romantically involved with Latashia Perez, who filed a Disputed Claim for Compensation seeking death benefits on her own behalf and on behalf of her then-unborn child. The child was born and confirmed by DNA testing to be the child of Mr. Chiokai. The child has been paid death benefits. Applicants contested benefits for Ms. Perez on the basis La.R.S. 23:1253, which bars death benefits to the deceased employee's "concubine." Applicants filed an exception of no right/cause of action, which the WCJ denied. This application followed.

ANALYSIS

Death benefits pursuant to the Louisiana Workers' Compensation Act are determined by La.R.S. 23:1231, which provides:

A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
B. (1) If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.
(2) If the employee leaves no legal dependents, whether biological or adopted, entitled to benefits under any state or federal compensation system, one lump sum payment of seventy-five thousand dollars shall be paid to the employee's surviving biological and adopted children who are over the age of majority, to be divided equally among them, which shall constitute the sole and exclusive compensation in such cases.
(3) If the employee leaves no dependents entitled to benefits under Paragraph (2) of this Subsection, one lump sum of seventy-five thousand dollars shall be paid to the surviving biological and adopted children of the employee to be divided equally among them, which shall constitute the sole and exclusive compensation in such cases. If the employee leaves no legal dependents and no biological or adopted children entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.

The Disputed Claim for Compensation filed by Ms. Perez merely alleges that Mr. Chiokai was killed in a work-related accident and that she and her unborn child are entitled to death benefits. Applicants filed an answer generally denying Ms. Perez's allegations. Later, they filed a peremptory exception of no cause/no right of action in which they alleged that Ms. Perez and Mr. Chiokai were never married. Ms. Perez opposed the exception, arguing that she was entitled to the difference between the death benefit, which was owed to her daughter, and the maximum workers' compensation rate under La.R.S. 23:1232(8). She also argued that the terms of La.R.S. 23:1253 did not apply because her child is the blood relative of the deceased worker.

No evidence was adduced at the hearing on the exception. Thus, whether Ms. Perez occupied the position of concubine, which was the burden of proof imposed on Applicants in their exception, was not demonstrated. We do not need to reach the question of whether, as concubine of Mr. Chiokai and the mother of his child, Ms. Perez is entitled to death benefits despite the language of La.R.S. 23:1253, because it was not proven that she was his concubine.

WRIT DENIED.