author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. Tavis LEONARD
    NO. 2018-KA-0142
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 26, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Kyle Daly, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P.O. Box 4015, New Orleans, LA 70178-4015, Tavis Leonard, Pro Se, Louisiana State Prison, 17544 Tunica Trace Angola, LA, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Joy Cossich Lobrano

Defendant, Tavis Leonard ("Defendant"), appeals his convictions for second degree murder, armed robbery, and attempted manslaughter. After reviewing the record and applicable law, we affirm Defendant's convictions.

PROCEDURAL BACKGROUND

On June 25, 2015, the State indicted Defendant for the second degree murders of Charles Meyers (count 1) and Michael Meyers (count 4); the attempted second degree murders of Christopher Dorsey (count 2) and Torran Stewart (count 5); and the armed robbery of Christopher Dorsey and Charles Meyers (count 3). Defendant pled not guilty to all charges.

The State elected to go to trial on counts 1, 2, and 3, only. The trial lasted two days and concluded with Defendant being found guilty as charged on counts 1 and 3, and guilty to the lesser charge of attempted manslaughter on count 2. Defendant's motion for new trial was denied.

Defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence (count 1); twenty years at hard labor (count 2); and ninety-nine years without benefit of parole, probation or suspension of sentence, plus five-years enhancement (count 3). The sentences were to be served concurrently, with the exception of the five-year firearm enhancement, which would be served consecutively to the other sentences.

A motion for appeal was granted the same day.

TRIAL TESTIMONY

The trial testimony of co-defendant, Wade Reed, established the chronology of events of the March 26, 2014, the date of the crime in question.

Reed recalled that on March 25, 2014, Defendant, a close friend, solicited his participation in a plan to rob Christopher Dorsey. Reed said Dorsey's house was targeted because Defendant was aware, through Jonathan Holmes that Dorsey was a drug dealer and kept large amounts of cash in his home.

The following day, Defendant, driving a white Volkswagen Beetle which he borrowed the night before from his friend, arrived at Reed's house. Reed and Defendant then drove to Dorsey's Briarheath Drive residence, arriving at about 8:00 a.m. They sat in the car for about an hour until Dorsey and his family left the residence.

Reed and Defendant went around the corner and jumped the back fence. However, Dorsey returned to his residence sooner than Wade and Defendant expected. Dorsey drove his vehicle into the backyard, where he was approached by the armed Defendant. Dorsey exited the truck and relinquished a "brick" of cocaine he was carrying. Defendant took Dorsey's house key and, while Defendant was walking to the front door, Charles Meyers drove up in his truck. Defendant removed Meyers from his vehicle at gunpoint and forced him into the backyard with Dorsey.

Reed opened the front door and admitted Defendant, Dorsey, and Meyers. By that time, Holmes had arrived and was admitted to the residence. While Defendant and Holmes searched the house for drugs and money, Reed confiscated cash concealed in Meyers' truck.

Dorsey told Reed he had $90,000 stashed in a sock hidden in a wall in the attic. Defendant retrieved the cash. Defendant then made Dorsey call his father, also a drug dealer, and request $250,000. At the same time, Reed and Holmes removed electronic equipment from the house and loaded it into the Volkswagen. All of the men left the house through the back door and entered Dorsey's black Avalanche truck. Reed tied Dorsey's and Meyers' hands behind their backs, got into the driver's seat, and confiscated the gun Dorsey kept in his truck. Dorsey sat next to Reed. Defendant, Meyers, and Holmes rode in the rear seat. As Reed drove down Hayne Boulevard, Holmes and Meyers began fighting over a gun. Reed stopped the truck because he feared being shot in the tussle. In the confusion, Meyers jumped out of the truck and ran. Holmes pursued Meyers, shooting at him. While Holmes shot at Meyers, Dorsey reached for Reed's weapon. As they grappled over the gun, Dorsey was shot once in the head and slumped over. At that point, Defendant jumped from the rear seat of the truck and ran to a waiting vehicle. Believing Dorsey was dead, Reed exited the truck. As Reed walked away, he heard the truck door close and saw Dorsey driving away without them. Reed fired at the truck. Eventually, Reed and Holmes walked home.

Reed recalled that of all the money and drugs he, Defendant, and Holmes had taken from Dorsey, he received only $5,000.00, with an unfulfilled promise of more from Defendant. Reed also testified that Defendant's stepfather and step-grandfather had been murdered in January 2015.

Reed identified State's Exhibit 4 as the surveillance video from Dorsey's residence. While the video was played for the jury, Reed narrated the recording, identifying the people seen in the recording and explaining the activity depicted.

NOPD Detective Rayell Johnson, lead investigator in this case, arrived on the scene at 11700 Hayne Boulevard at approximately 10:00 a.m. on March 26, 2014. Johnson saw Meyers' body lying in the middle of the street. Several gunshot wounds were visible on the body. A bullet-riddled black Avalanche truck was parked a short distance away. Dorsey, who suffered a single gunshot wound to the head, had already been transported to the hospital.

Shell casings from .40 caliber and 9mm caliber ammunition were collected from the scene. The .40 caliber shells were found close to Myers' body and the 9mm casings were located near the intersection of Arcadia Lane and Hayne Boulevard. Ballistics testing showed that the 9mm ammunition was fired by Reed as he shot at Dorsey fleeing in a black truck.

After processing the scene, Johnson relocated to the hospital and spoke to Dorsey, who was unable to identify his assailants. However, Dorsey related the facts of the crimes consistent with Reed's testimony. The detective learned from Dorsey that Dorsey's Briarheath residence was a crime scene. Johnson identified photographs of the interior of the residence, showing the house had been ransacked. Johnson retrieved the home surveillance video, which was played for the jury. Johnson recalled that the events depicted in the video matched what Reed told him.

Explaining his investigation, that led to the development of Defendant, Reed, and Holmes as suspects, Johnson traced the ownership of the white Volkswagen Beetle seen in the home surveillance video to Defendant's friend's mother. Johnson spoke with the friend, who identified Defendant as the person to whom she loaned the vehicle. The friend said Defendant returned the car the day after the shooting.

Johnson testified that Reed and Holmes were identified by Dorsey from six-person photo lineups. However, Johnson was never able to present a photo line-up to Dorsey that included Defendant's photo.

Johnson obtained Defendant's cell phone number from the friend and arranged to take a statement from him at Police Headquarters. In his statement, Defendant admitted that he and Reed were friends, although he did not associate with him. Further, he denied knowing anything about the murder of Meyers and the attempted murder of Dorsey. Defendant said he lived in Kenner and his stepfather, Desmond Lange, lived in Gentilly, so he had no reason to go to New Orleans East.

Johnson subpoenaed Defendant's cell phone records to track its activity at the time of the armed robbery and shooting.

Those records indicated that for two minutes prior to and two minutes after the murder, Defendant's cell phone "pinged" off the Sprint tower at Hayne Boulevard and Bullard Avenue, approximately two blocks from the scene of the murder. Moreover, the cell phone records indicated that Defendant's phone pinged off a cell tower in New Orleans East approximately twenty times during the time frame of the armed robbery and murder. The State played Defendant's statement in which Defendant denied knowledge of, and any involvement in, the incident, except to say he procured legal counsel for Reed.

The friend testified she had known Defendant for a few months by March of 2014. She knew Reed to be Defendant's friend. On the evening of March 25, 2014, she agreed to lend Defendant her white Volkswagen Beetle. He arranged to meet her at school to pick up the car. He said he needed the car for work and returned it to her the following afternoon. When Defendant returned the car, he told her something went "bad" and that: "If the police come looking for me [Defendant], tell them you don't know me." She identified her white Volkswagen parked in the driveway at 7458 Briarheath Drive when it appeared in the video surveillance. She was very upset when she learned Defendant used her car to commit a robbery.

Plaquemines Parish Detective Paul Durnin was assigned to the Criminal Intelligence Center (CIC) based in Jefferson Parish. Durnin explained that the CIC was composed of seventeen New Orleans law enforcement agencies which shared resources and intelligence in crime fighting. Durnin specialized in cell phone historical record analysis, such as the time, date, and duration of a cell phone call, the number was called, and the identification of the cell tower through which the call was routed.

Durnin performed an historical record analysis on Defendant's phone to determine the location of it for the time period of March 26, 2014, from 7:06 a.m. until 10:00 a.m. Durnin's report of his analysis indicated that the cell phone used the Sprint Tower cell phone tower 5600, located at the intersection of Hayne Boulevard and Bullard Avenue twenty-six times during the specified time period. The records analysis also showed that two minutes prior to the homicide, Defendant's cell phone made an outgoing call, and that three minutes after the homicide, Defendant's phone received an incoming call. The calls made and received in the five-minute period of time used Sprint Tower 5700.

Meredith Acosta, a firearms examiner for the Bureau of Alcohol, Tobacco and Firearms, was accepted as an expert in ballistics examination and identification. Acosta inspected ballistic evidence collected at the scene and generated a report of her findings. Acosta examined twelve .40 caliber shell casings and ten 9mm casings. Her testing revealed that two weapons were used in the shootings, and that all of the .40 caliber shell casings were discharged by the same weapon and the 9mm casings were fired by a different gun.

Dr. Samantha Huber, Chief Forensic Pathologist for the New Orleans coroner's office, performed an autopsy on Meyer's body and authored a report documenting her findings. According to Huber, the victim sustained eight gunshot wounds, two of which were fatal: one of the bullets pierced the victim's lungs and trachea, while the other hit the stomach, small bowel and liver. Those wounds caused the victim to bleed to death.

Defendant testified he was twenty-two years old, lived in New Orleans his entire life and graduated from high school. He said although he referred to Desmond Lange as he his father, Lange was actually his stepfather. Defendant said that at the time of his arrest, he was working for Coca Cola and Central Parking on Poydras and Camp Streets in downtown New Orleans.

Defendant gave a statement to Johnson. He said Reed was a friend he had known for about seven years. Defendant denied any involvement in these incidents. When questioned about the white Volkswagen, Defendant claimed his friend requested that he take her car because she was spending the night before this incident on campus and did not have a parking pass to allow her to park her car there. She picked him up at his residence; they drove to the campus, and he drove her car to his stepfather's residence in Gentilly. Sometime later, Reed needed a ride, so Defendant loaned him the Volkswagen, which Reed returned to Defendant the following day. Defendant claimed he had forgotten his cell phone in the Volkswagen but that Reed returned it with the vehicle.

When Reed returned the Volkswagen, Reed told Defendant something bad happened and that, if the police came looking for him, Defendant should say he did not know Reed. In turn, Defendant repeated what Reed told him when he returned the car to his friend and advised her to deny knowing Reed if the police asked.

Not long after Defendant spoke to Johnson, Defendant's stepfather and step-grandfather were murdered. Defendant blamed their deaths on the fact someone knew he had spoken to the police and that the murders were committed as retribution.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

DISCUSSION

Pro Se Assignment of Error Number 1

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992). Thus, although insufficiency of evidence is not the first trial error argued by Defendant, it must be the first considered. State v. Contreras , 17-0735, p. 6 (La.App. 4 Cir. 5/30/18), 247 So.3d 858, 865-66.

When reviewing the sufficiency of the evidence to support a conviction, we apply the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Tate , 01-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928.

The principal criteria of a Jackson v. Virginia review is rationality. State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all the evidence, and the actual trier of fact is presumed to have acted rationally until it appears otherwise. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. Id. ; State v. Egana , 97-0318, p. 6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 228. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott , 12-1603, p. 11 (La.App. 4 Cir. 12/23/13), 131 So.3d 501, 508. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier of fact. Id. "Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness." Id. "Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. De Gruy , 16-0891, p. 11 (La.App. 4 Cir. 4/5/17), 215 So.3d 723, 730, writ denied , 17-0752 (La. 1/9/18), 231 So.3d 652.

In this case, Defendant argues the evidence is insufficient to support his convictions because he cannot be held accountable for the crimes for which he did not have specific intent. He points out that the evidence demonstrated that Holmes shot and killed Meyers while Reed fired the shot that wounded Dorsey. As further proof he did not attempt to kill or inflict great bodily harm on anyone or intend that anyone should be killed, Defendant notes that no evidence exists that he fired a single shot, and that he was running away from the scene by the time the shooting began. Consequently, he claims his convictions for second-degree murder and attempted manslaughter cannot stand.

Under La. R.S. 14:30.1, second degree murder is defined as the killing of a human being when the offender: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including but not limited to aggravated burglary, armed robbery , first degree robbery, second degree robbery, and simple robbery, even though he has no intent to kill or to inflict great bodily harm. Under the second theory of second degree murder, the State had to prove that defendant was engaged in the perpetration or attempted perpetration of an armed robbery, even if he had no intent to kill or to inflict great bodily harm.

"All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." La. R.S. 14:24.

In felony murder, the mens rea of the underlying felony provides the malice necessary to transform an unintended homicide into a murder. Moreover, under general principles of accessorial liability, all parties to a crime are guilty for deviations from the common plan that are foreseeable consequences of carrying out the plan. Thus, when a murder occurs during the perpetration or attempted perpetration of an enumerated felony (such as armed robbery), one need not possess specific intent to kill or inflict great bodily harm, nor be the person who physically killed the victim, in order to be a principal to second degree murder. See State v. Smith , 07-2028, pp. 8-9 (La. 10/20/09), 23 So.3d 291, 296-97.

Jurisprudence indicates that "[a] person may be convicted of an offense even if he has not personally fired the fatal shot..." State v. Hawkins , 16-0458, p. 19 n.13 (La.App. 4 Cir. 5/17/17), 219 So.3d 1133, 1144 n. 13, writs denied, 17-1183,17-1280 (La. 5/18/18), 242 So.3d 575, citing State v. Hampton, 98-0331 (La. 4/23/99), 750 So.2d 867, 880. The law of principals states that all persons involved in the commission of a crime, whether present or absent, are equally culpable. State v. Schwander, 345 So.2d 1173, 1174-75 (La. 1977).

La. R.S. 14:31A(2)(a) provides that manslaughter is a homicide committed, without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of any felony, in this case, armed robbery, not enumerated in La. R.S. 30 or La. R.S. 30.1.

Although La. R.S. 14:31A(2)(a) does not specifically set forth a causal requirement between the underlying or predicate felony and the death, such an essential element must be read into the statute. The Supreme Court has held that, when prosecuting a felony-manslaughter, the prosecution is still required to prove that the "defendant's conduct was a legal cause of the killing." See State v. Kalathakis, 563 So.2d 228, 231-33 (La. 1990). The Court has also found that a "causal relation between Defendant's conduct and the harm for which the prosecutor seeks to impose criminal sanctions is an essential element of every crime." Id; see also State v. Kenny, 11-1819, pp. 8-9 (La.App. 4 Cir. 5/29/13), 116 So.3d 992, 997. Notwithstanding that the underlying felony and unlawful killing must somehow be related, the prosecution must prove Defendant and his co-perpetrator were engaged in the perpetration of a felony not enumerated in La. R.S. 14:30 or 14:30.1and that the victim was killed in furtherance of the commission of this felony. State v. Brown , 15-0855, p. 4 (La.App. 4 Cir. 10/21/15), 176 So.3d 761, 765, writ denied, 15-2250 (La. 2/5/16), 186 So.3d 1167.

In turn, La. Rev. Stat. 14:27 defines attempt as:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt[.]

The evidence in this case, when viewed in light most favorable to the State, established Defendant's guilt beyond a reasonable doubt. Defendant's co-defendant, Reed, testified that Defendant planned the armed robbery, supplied Reed with a weapon, and enlisted his and Holmes' assistance in carrying out the crime. Moreover, Reed testified Defendant also devised the plan to remove the victims from the residence and transport them in Dorsey's truck to a secluded area where Defendant planned to kill them.

The jury considered all of the evidence and credited the testimony of the State's witnesses. Defendant's claim of lack of specific intent notwithstanding, the evidence was sufficient to allow a rational juror to find beyond a reasonable doubt that Defendant was guilty of second degree murder and attempted manslaughter. This assignment has no merit.

Counsel Assignment of Error Number 1

Pro Se Assignment of Error Number 2

In these assignments, Defendant complains the trial court erred by refusing to grant a recess of trial to allow the Department of Corrections ("DOC") to transport two defense witnesses to court to testify on his behalf.

The defense sought the presence of Holmes and Reed, both of whom were incarcerated outside of New Orleans. Pursuant to a defense request, the district court signed an order on Monday evening (the second day of trial) ordering the DOC to procure their presence when the trial resumed the following morning. However, they were not present Tuesday morning because the DOC had not received the district court's order in time to ensure timely transport. The defense did not inform the court that Holmes and Reed had not been transported as requested until Wednesday and sought to recess trial based on the non-production of the two witnesses.

While the jury was out of the courtroom, the prosecutor and defense counsel argued the request for recess, after which the court denied the defense request, observing:

We're dealing with a recess of the trial. I denied your continuance based on the fact that your client and the age of this case [pending for three years] and the location of your client, and this Court is always ready to accommodate defense lawyers trying to see their clients because I realize with the locale and the movement of all the inmates, it does become difficult. So then I assisted you on Monday to try to get two incarcerated people here. Now we're finding that you decided on Saturday after your client made the decision for you, and you agreed that Will Reed would provide hearsay testimony. I'm going to find that your request for these witnesses and their appearance in this recess request and the information that I've learned that the facts which you've outlined do not show due diligence used in an effort to procure the attendance of these witnesses, and that one of them in fact would not provide any information except hearsay testimony, and that in this Court's discretion there's no good cause for a recess. Everybody said this trial would last four days. This Court - it's not like I've been unavailable to you to bring people in, and you didn't inform me on Tuesday that your witnesses were not here... I would have gotten them here for this morning...
I sat on this bench all day, and you didn't inform me one-time yesterday that your witnesses were not here or I would have had them brought here. You've seen this Court on many days pick up the phone, call people and make things happen, so don't tell me that I'm not a resource for you and you didn't reach out to me.... Your recess is denied.

La. C.Cr.P. art. 708 provides:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

A motion for a recess is evaluated by the same standards as a motion for a continuance. State v. Plaisance , 00-1858, p. 29 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193. La. C.Cr.P. art. 709 states:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

In the present case, the district court did its utmost to secure the presence of Defendant's witnesses. Moreover, defense counsel admitted that he had not interviewed either Holmes or Reed during the three years the case had been pending, and did not know if either man would testify to information that was both admissible and favorable to Defendant. Consequently, the district court denied the defense request for recess because of failure to establish that the absent witnesses were expected to testify to material facts, rendering their presence at trial necessary, and that due diligence was not exercised in an effort to procure their attendance. Defendant failed to demonstrate a sufficient showing under La. C.Cr.P. art. 709 to justify the granting of a recess to secure the witnesses. The trial court did not abuse its discretion when it denied Defendant's request.

This assignment has no merit.

Counsel Assignment of Error Number 2

In this assignment, Defendant complains the trial court abused its discretion by refusing to grant a mistrial after the prosecutor questioned Defendant about a murder for which he was not on trial.

"Mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by Defendant." State v. Lincoln , 17-0170, p. 15 (La.App. 4 Cir. 11/3/17), 231 So.3d 161, 170-71 (citing State v. Leonard , 05-1382, p. 11 (La. 6/16/06), 932 So.2d 660, 667 ). Further, "[t]he mere possibility of prejudice is insufficient to warrant a mistrial." Id. "[E]xcept for instances in which the mandatory mistrial provisions of La. C.Cr.P. art. 770 are applicable, [the remedy] should only be used when substantial prejudice to Defendant is shown." Id. , 17-0170, pp. 15-16, 231 So.3d at 171 (quoting State v. Castleberry , 98-1388, p. 22 (La. 4/13/99), 758 So.2d 749, 768 ).

Pursuant to La. C.Cr.P. art. 770(2), a mistrial shall be ordered upon motion of a defendant "when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: ... [a]nother crime committed or alleged to have been committed by defendant as to which evidence is not admissible[.]" "An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If a defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial." La. C.Cr.P. art. 770 ; Lincoln , 17-0170, p. 16, 231 So.3d at 171.

During cross-examination, the prosecutor asked Defendant:

Q. The reality is that you have no idea whatsoever what it is like to be accused of something you didn't do because everything you just told that jury was a flat lie; isn't that right?

A. No, sir.

* * *

Q. Mr. Fuller talked about the death of your father and your grandfather, stepfather and step grandfather on January 1, 2015.

A. Yes, sir.

Q. And the reality is that they died because of the chain of violence that you set off in March of 2014?

A. No, sir.

Q. Okay. Let's talk about all the death that has followed this case on both sides, all right. You know who "P" is?

A. Yes, sir.

Q. Wade Reed testified that that's who ended up with all the weight with the cocaine; is that true?

A. I don't know, sir.

Q. Okay. Where is "P" now?

A. I guess dead.

Q. Murdered, right?

A. Yes, sir.

Q. Gerard Dorsey, Christopher Dorsey's father, who y'all contacted inside that house, where is he now?

A. I guess dead.

Q. Dead, right, another murdered person, right? In addition to that Michael Meyers, the brother of Charles Meyers, murdered in December of 2014, isn't that right?

A. Yes, sir.

Q. ... So all of these bodies surrounding you, "P", Gerard Dorsey -

At this juncture, defense counsel objected with a discussion held in chambers. Defense counsel moved for a mistrial because the district court had issued an order prior to trial that the State not mention the murder of Michael Meyers.

After hearing argument from both sides, the district court denied a mistrial, stating:

I've heard what the lawyers had to say. I specifically told the State not to discuss the Michael Meyers case or murder and not to imply that it was a murder that he was charged with. I don't find that the question was an implication that this defendant committed that murder, but I think it's really on the line or over it because your question said followed this case on both sides, about the death that followed this case on both sides. I think neither of you should be talking about Michael Meyers or saying brother to the other person. But I find that in context with the questions that defendant said basically after speaking with the police, his [step]father and [step grandfather] were killed because he was considered to be a snitch, I think that this is harmless based on the fact that he was placing blame on others for the deaths of his family, and the State could show that it may not be just him that's suffering from being accused of something that everyone is (suffering from). I think that the State had the right to bring that up after the questions that were posed to defendant, so the motion for mistrial is denied ...

Examination of the record shows that the State did not directly accuse Defendant of involvement in the numerous homicides in the wake of the crimes charged in this case. Under the circumstances detailed in the reasons for denying Defendant's mistrial request, the district court did not abuse its discretion.

This assignment has no merit.

Pro Se Assignment of Error Number 3

In his final pro se assignment, Defendant complains he received ineffective assistance of counsel.

Generally, ineffective-assistance-of-counsel claims are more properly raised in an application for post-conviction relief, where the district court can conduct a full evidentiary hearing on the matter if warranted. State v. Leger, 05-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142. However, no law or jurisprudential rule prohibits a defendant from raising the issue of ineffective assistance of counsel on appeal, nor is there a mandate for reviewing courts to only consider this issue during post-conviction relief. We find that the interests of justice and judicial economy are best served by considering Defendant's ineffective assistance of counsel claim at this time. State v. King , 17-0126, p. 17 (La.App. 4 Cir. 10/27/17), 231 So.3d 110, 121.

In Strickland v. Washington , the U.S. Supreme Court established a two-pronged test to attain relief in an ineffective assistance of counsel claim as follows: 1) Defendant must show that counsel's performance was deficient; and 2) that this deficiency prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). As to the first prong, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. "The object of an ineffectiveness claim is not to grade counsel's performance." Id. at 697, 104 S.Ct. at 2069. Thus, when reviewing a claim of ineffective assistance of counsel, an appellate court "does not sit to second-guess strategic and tactical choices made by trial counsel." State v. Myles , 389 So.2d 12, 31 (La. 1980).

In determining if counsel's deficiency prejudiced a defendant, he must show that more than counsel's errors had some conceivable impact on the outcome of the proceeding. Strickland , 466 U.S. at 693, 104 S.Ct. at 2067. Rather, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

Defendant argues he received ineffective assistance because his counsel failed to file a timely Motion to Quash the indictment. He reasons that his trial counsel knew or should have known that the 2014 indictment charging him with second degree murder, attempted second degree murder, and armed robbery was fatally defective because it was reinstituted in 2017 after being nolle prossed, and was not resubmitted to a grand jury.

The district attorney's discretionary prosecutorial authority is vast. Louisiana jurisprudence has recognized that the State has the authority to enter a nolle prosequi and reinstitute the charges. State v. Batiste , 05-1571, pp. 5-6 (La. 10/17/06), 939 So.2d 1245, 1249 ; State v. Brown, 11-0947, p. 4 (La.App. 4 Cir. 3/7/12), 88 So.3d 662, 665. Moreover, La. C.Cr.P. art. 691 confers on the district attorney the power to dismiss a formal charge, in whole or in part, without leave of court. La. C.Cr.P. art. 693 provides, subject to narrowly delineated exceptions, that dismissal of a prosecution "is not a bar to a subsequent prosecution." La. C.Cr.P. art. 576 provides:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with Defendant's consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

A motion to quash is the proper procedural mechanism to challenge the state's nolle prosequi and reinstitution of charges. State v. Hayes, 10-1538, p. 4 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 12 ; see also La. C.Cr.P. art. 531.

A trial court's ruling on a motion to quash is a discretionary one, which should not be disturbed absent a clear abuse of discretion. State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206 ; State v. Sorden, 09-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183. The trial court's resolution of motions to quash where the district attorney entered a nolle prosequi and later reinstituted charges must be decided on a case-by-case basis. Batiste , 05-1571, pp. 5-6, 939 So.2d at 1249citing Love, 00-3347, p. 14, 847 So.2d at 1209.

Here, Defendant was charged with second degree murder, attempted second degree murder, and armed robbery, exposing him to sentences imposed with hard labor. La. C.Cr.P. art. 572A(1), provides for prosecution to be instituted within six years of the offenses. The record indicates that the offenses occurred on March 26, 2014; consequently, the State had until March 26, 2020, to institute prosecution. The state reinstituted the charges against Defendant on June 25, 2015, well within the six-year statutory period.

Under La. C.Cr.P. art. 576, the State must also show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by La. C.Cr.P. art. 578. La. C.Cr.P. art. 578A(2) requires that trial of a non-capital felony be commenced within two years from the date of institution of the prosecution. Because second degree murder, attempted second degree murder, and armed robbery are non-capital felonies, the State had to bring Defendant to trial within two years from the date of the bill of indictment. The original indictment was filed on August 21, 2014. The State entered nolle prosequi on October 13, 2015. The charges were reinstituted on June 25, 2015, and trial commenced on April 24, 2017. No evidence exists that the State dismissed the first case in order to avoid the time limitations of La. C.Cr.P. art. 578. Thus, the State timely reinstituted prosecution of the second degree murder, attempted second degree murder, and armed robbery charges against Defendant in this case.

Defendant has not demonstrated that he was prejudiced by the loss or compromise of any witness or evidence due to the ten-month delay between the filing of the original indictment and the reinstitution of charges. The reinstitution of charges against Defendant were statutorily timely. Defendant has failed to prove he received ineffective assistance through defense counsel's failure to file a Motion to Quash. This assignment is meritless.

CONCLUSION

Based on the foregoing, Defendant's convictions are hereby affirmed.

AFFIRMED.

ATKINS, J., CONCURS IN THE RESULT.

      Reed pled guilty to the attempted second degree murder of Christopher Dorsey, the manslaughter of Charles Meyers and the armed robbery of Dorsey and Meyers. Reed received a twenty-year sentence without benefit of parole, probation, or suspension of sentence. Co-defendant Holmes pled guilty to manslaughter, armed robbery, and attempted murder, in addition to admitting he was the gunman in the Charles Meyers shooting. Holmes was sentenced to forty years without benefit of parole, probation, or suspension of sentence.

      Johnson explained that, following the incidents of this case, several of Dorsey's family members were murdered, causing Dorsey to leave Louisiana and refusing to return to testify.

      The State called Thomas Koch, the custodian of Sprint Mobile records, to verify the records of calls made from Defendant's cell phone at the time of the armed robbery and murder.

      Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

      During the testimony of Detective Johnson, the jury learned that Holmes was accused of shooting Meyers and that Holmes originally told the police "Justin" shot Meyers. Subsequently, police discovered that Justin Daniels, who was a Holmes' associate, was the "Justin," Holmes said shot Meyers. However, police investigation confirmed that Justin Daniels was incarcerated at the time Meyers' murder. Subsequently, Holmes pled guilty to reduced charges prior to this trial and received a forty-year sentence.

      On appeal, the State noted that the defense, in its cross-examination of Johnson, first raised the fact that Michael Meyers was killed in December of 2014.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Irvin DEUBLER v. BOGALUSA CITY SCHOOLS & Luba Casualty Insurance Company
    NO. 2018 CA 0312
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered September 21, 2018.
    RANDALL C. JOY, MANDEVILLE, LA, ATTORNEY FOR PLAINTIFF-APPELLEE IRVIN DEUBLER
    STEPHEN W. BROOKS, JR., RICHARD J. VOELKER, COVINGTON, LA, ATTORNEYS FOR DEFENDANTS-APPELLANTS LUBA AND BOGALUSA CITY SCHOOLS
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

This appeal arises from a judgment of the Office of Workers' Compensation ("OWC") involving a Medical Guidelines dispute. For the reasons set forth herein, we affirm the judgment of the OWC and deny the answer to the appeal.

FACTS AND PROCEDURAL HISTORY

Claimant, Irvin Deubler, injured his lower back in the course and scope of his employment with Bogalusa City Schools ("BCS") on October 22, 2012, and thereafter began receiving benefits pursuant to the Louisiana Workers' Compensation Act. Mr. Deubler suffered chronic low back pain following the accident, and at some point was referred to Dr. Artemus Flagg at the Advanced Pain Institute for treatment.

On July 10, 2017, Mr. Deubler saw Dr. Flagg for a follow-up examination and to discuss treatment options for his chronic low back pain. Dr. Flagg's records list Mr. Deubler's diagnoses as chronic pain syndrome, lumbar radiculopathy, lumbago, neuralgia, and neuritis. At this visit, Mr. Deubler rated his pain as a 7. Mr. Deubler reported that his pain was relieved by pain medication. Dr. Flagg noted that Mr. Deubler had undergone epidural steroid injections in the past, but Mr. Deubler stated that his most recent injection did not provide him with as much relief as previous injections. Dr. Flagg provided Mr. Deubler with information about a spinal cord stimulator ("SCS"), they discussed the risks and benefits of undergoing an SCS trial, and he gave Mr. Deubler an instructional DVD to review. He also refilled Mr. Deubler's narcotic pain medication.

On August 7, 2017, Mr. Deubler returned to Dr. Flagg for a follow-up visit for his chronic low back pain. On this date, he described his pain level as 9/10. Mr. Deubler noted that pain medication is helpful, and that epidural steroid injections had been helpful in the past, but that he is awaiting adrenal gland testing before he is able to have another injection. Dr. Flagg refilled Mr. Deubler's narcotic pain medication and instructed him to return in a month.

On September 7, 2017, Mr. Deubler returned for a follow-up appointment with Dr. Flagg to discuss treatment options for his chronic low back pain. Mr. Deubler reported that his pain had increased in severity over the past several weeks, and on the date of his visit, it was a 10 or 10+. The pain occurred persistently. He reported that the relief he obtains from epidural steroid injections has diminished over the years, but he does get relief from narcotic pain medication. Mr. Deubler expressed interest in proceeding with an SCS trial, and Dr. Flagg noted his belief that if Mr. Deubler obtained greater than 60 percent relief from the SCS trial, he would benefit from an SCS implant, because it would allow him to take less opioid-based pain medication, increase his functional activity level, and live with less discomfort and pain. To that end, Dr. Flagg planned to order an MRI of Mr. Deubler's thoracic and lumbar spine to review the associated pathology with his symptoms and to rule out any thecal sac compression or narrowing, as well as a psychological evaluation as required for an SCS.

On September 28, 2017, BCS's workers compensation insurer, LUBA Casualty Insurance Company ("LUBA"), received requests from Dr. Flagg on LWC Form 1010 for an MRI of Mr. Deubler's thoracic and lumbar spine without contrast and for a psychological evaluation of Mr. Deubler for an SCS trial. Dr. Flagg listed Mr. Deubler's diagnoses on both requests as chronic pain syndrome, lumbago, lumbar spondylosis, and lumbar radiculopathy. In support of the requests, Dr. Flagg attached Mr. Deubler's medical records from his July 10, August 7, and September 7 office visits.

LUBA denied both requests, apparently due to a desire to have Mr. Deubler evaluated by a physician pursuant to La. R.S. 23:1121 prior to approving the requested treatment; and Dr. Flagg sought review of the denial by the OWC medical director by filing a Disputed Claim for Medical Treatment on LWC Form 1009. A Medical Guidelines Dispute Decision was issued on October 16, 2017, by Associate Medical Director Dr. Jason Picard, denying the request for the thoracic MRI because "[t]he patient has no thoracic radicular pain as per the guidelines," but approving the requests for the lumbar MRI and psychological evaluation for the SCS trial, noting that "[t]he patient has lumbar pain and failure of conservative therapy as per the guidelines."

LUBA and BCS filed a Disputed Claim for Compensation on LWC Form 1008, along with an attached appeal of the associate medical director's decision, requesting that the OWC overturn the decision on the grounds that the approval of the lumbar MRI and the psychological evaluation was not in accordance with the Medical Treatment Guidelines. At the January 5, 2018 hearing before OWC Judge Robert Varnado, counsel for LUBA and BCS argued that the lumbar MRI was not in accordance with the guidelines because Mr. Deubler had undergone a prior MRI, making this second MRI a redundant procedure, and "the records that were submitted ... in support of the [request for authorization for the MRI] do not satisfy the Medical Treatment Guidelines requirements and do not adequately establish a need for a follow-up MRI." Additionally, in reference to the psychological evaluation, counsel for LUBA and BCS argued that the purpose of the evaluation was to qualify Mr. Deubler for an SCS trial, which had not yet been requested, and for which they argued Mr. Deubler would not be eligible under the guidelines regardless of the results of the psychological evaluation. LUBA and BCS offered no additional evidence at the hearing, and the OWC judge rendered judgment in favor of Mr. Deubler, upholding the associate medical director's decision.

LUBA and BCS appealed suspensively, arguing that the OWC judgment upholding the associate medical director's decision was manifestly erroneous because the associate medical director's decision was contrary to the Medical Treatment Guidelines. Mr. Deubler filed an answer to the appeal, requesting attorney fees for work done on the appeal.

DISCUSSION

In 2009, the legislature enacted La. R.S. 23:1203.1, which charged the OWC Director with establishing a medical treatment schedule. See La. R.S. 23:1203.1(B). The Medical Treatment Guidelines became effective July 13, 2011, and are promulgated in the Louisiana Administrative Code, Title 40, Part I, Subpart 2, Medical Guidelines. The statute is the product of a combined endeavor by employers, insurers, labor, and medical providers to establish meaningful guidelines for the treatment of injured workers, and expresses the legislature's intent that, with the establishment and enforcement of the Medical Treatment Guidelines, all medical treatment shall be delivered in an efficient and timely manner to injured employees. La. R.S. 23:1203.1(L) ; Church Mutual Insurance Company v. Dardar, 13-2351, p. 5 (La. 5/7/14), 145 So.3d 271, 275-76.

Louisiana Revised Statutes 23:1203.1(I) provides that following the promulgation of the medical treatment schedule, the medical care, services, and treatment due, pursuant to La. R.S. 23:1203 et seq., by the employer to the employee shall mean the care, services, and treatment in accordance with the medical treatment schedule. However, when the medical care, services, and treatment that are recommended vary from the promulgated medical treatment schedule, those too shall be due by the employer when it is demonstrated to the OWC medical director by a preponderance of the scientific medical evidence that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of his injuries given the circumstances. La. R.S. 23:1203.1(I). When a dispute arises as to whether the recommended medical care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance is reasonably required under La. R.S. 23:1203.1(I), any aggrieved party may file an appeal with the OWC medical director or associate medical director. La. R.S. 23:1203.1(J).

Once the OWC medical director or associate medical director renders a decision concerning treatment, care, or services requested, any party who disagrees with the decision may then appeal that finding by filing a Disputed Claim for Compensation on LWC Form 1008. La. R.S. 23:1203.1(K). The decision of the medical director or associate medical director may be overturned on review when it is shown, by clear and convincing evidence, that the decision of the medical director or associate medical director was not in accordance with the provisions of La. R.S. 23:1203.1. La. R.S. 23:1203.1(K). Additional evidence may be necessary for the party appealing the medical director or associate medical director's decision to meet the higher burden of proof statutorily required to overturn that decision; therefore, additional competent evidence is admissible at the hearing notwithstanding that it was not presented to the medical director or associate medical director. Thompson v. DHH-Office of Pub. Health, 15-1032, p. 9 (La. App. 1 Cir. 2/26/16), 191 So.3d 593, 598, writ denied , 16-00716 (La. 6/3/16), 192 So.3d 751.

By their terms, La. R.S. 23:1203.1 and the medical treatment schedule do not exclude any particular care. Instead, those provisions represent and reflect a rational policy choice by the legislature to confer authority on the OWC Director, with the assistance of the medical advisory council and the medical director, to determine in advance the medical necessity for certain medical care. In regards to medical procedures not included in the medical treatment schedule and, thus, not presumptively deemed necessary, claimants can overcome the predetermination by seeking review and/or a variance from the medical director. La. R.S. 23:1203.1(I) and (J) ; Church, 13-2351 at pp. 19-20, 145 So.3d at 284. In this way, La. R.S. 23:1203.1 and the medical treatment schedule create a rebuttable presumption as to the necessary treatment required by La. R.S. 23:1203(A). Id. at p. 20, 145 So.3d at 285.

On appeal from an OWC judgment reviewing the medical director's decision under La. R.S. 23:1203.1(K), the manifest error standard of review applies. Thompson, 15-1032 at p. 6, 191 So.3d at 596. In order to reverse, the appellate court must find that the record reflects that there is no reasonable basis for the OWC judge's factual determinations. Bourgeois v. Brown's Deli & Market, Inc., 09-290, p. 4 (La. App. 3 Cir. 10/14/09), 21 So.3d 1072, 1075.

When seeking review of LUBA's denial from the associate medical director, Mr. Deubler had the initial burden of proving, by a preponderance of the evidence, either that the requested services were in accordance with the medical treatment schedule, or that a variance from the medical treatment schedule was reasonably required to cure or relieve him from the effects of his injuries under the circumstances.

La. R.S. 23:1203.1(J). However, once the associate medical director determined that the lumbar MRI and psychological evaluation were medically necessary and appropriate (either because they were in accordance with the medical treatment schedule or because a variance was reasonably required under the circumstances), then, in order to have this decision overturned, LUBA had the burden of proving to the OWC, by clear and convincing evidence, that the associate medical director's decision was not in accordance with the provisions of La. R.S. 23:1203.1. La. R.S. 23:1203.1(K).

The medical records from Dr. Flagg's office state that Mr. Deubler was being treated for chronic pain, which is defined in the Medical Treatment Guidelines as "pain that persists for at least 30 days beyond the usual course of an acute disease or a reasonable time for an injury to heal or that is associated with a chronic pathological process that causes continuous pain." LAC 40:I.2105(F). According to the Chronic Pain Disorder Guidelines, delayed recovery should prompt, among other things, consideration of new diagnostic testing or a change in treatment plan. LAC 40:I.2105(F). Furthermore, the guidelines provide that operative intervention for chronic pain management (such as an SCS implant) should be based on a positive correlation with clinical findings, the clinical course, and diagnostic tests, and a comprehensive assessment of these factors should have led to a specific diagnosis with positive identification of the pathologic condition. LAC 40:I.2113(A).

The medical records submitted by Dr. Flagg with his request for authorization for a lumbar MRI noted that Mr. Deubler's chronic lower back pain was worsening despite use of pain medication and therapeutic injections. Dr. Flagg requested the lumbar MRI to "review the associated pathology with his symptoms and to rule out any thecal sac compression or narrowing" prior to proceeding with an SCS trial. The only argument LUBA and BCS made at the OWC hearing in support of their position that the lumbar MRI was not medically necessary or appropriate was that the MRI was a redundant procedure under LAC 40:I.2019 since Mr. Deubler had undergone a prior MRI. This provision of the Spine Medical Treatment Guidelines states, in pertinent part:

Magnetic resonance imaging (MRI), myelography, or computed axial tomography (CT) scanning following myelography, and other imaging procedures and testing may provide useful information for many spinal disorders. When a diagnostic procedure, in conjunction with clinical information, can provide sufficient information to establish an accurate diagnosis, the second diagnostic procedure will become a redundant procedure. At the same time, a subsequent diagnostic procedure can be a complementary diagnostic procedure if the first or preceding procedures, in conjunction with clinical information, cannot provide an accurate diagnosis.

LAC 40:I.2019(C)

There is absolutely no evidence in the record of the prior MRI referred to by LUBA and BCS, let alone any evidence that the prior MRI, in conjunction with clinical information, provided sufficient information to establish an accurate diagnosis so as to render a follow-up MRI redundant and unnecessary under the guidelines. Additionally, Dr. Flagg's request for a lumbar MRI to review the associated pathology with Mr. Deubler's symptoms and rule out any thecal sac compression or narrowing is in accordance with the Chronic Pain Disorder Medical Treatment Guidelines, which state that operative intervention for chronic pain, such as an SCS implant, should be based on "a positive correlation with clinical findings, the clinical course, and diagnostic tests." LAC 40:I.2113(A). Based on the evidence presented, we cannot say that the OWC judge erred in finding that LUBA and BCS failed to prove, by clear and convincing evidence, that the associate medical director's decision approving the lumbar MRI was not in accordance with the provisions of La. R.S. 23:1203.1.

LUBA and BCS also argued at the OWC hearing that the requested psychological evaluation was not in accordance with the guidelines because the medical records provided did not establish that Mr. Deubler was qualified for an SCS implant. Although LUBA and BCS's argument was based on the guidelines for an SCS implant, the request was not for authorization of an SCS implant; it was for a pre-surgical psychological evaluation required to qualify him as a candidate for an SCS implant under the guidelines. See LAC 40:I.2113(A)(2)(c) (iii).

The guidelines applicable to SCS implants are found in LAC 40:I.2113(A)(2) and provide, in pertinent part:

2. Neurostimulation
a. Description -- Neurostimulation is the delivery of low-voltage electrical stimulation to the spinal cord or peripheral nerves to inhibit or block the sensation of pain. This is a generally accepted procedure that has limited use. May be most effective in patients with chronic, intractable limb pain who have not achieved relief with oral medications, rehabilitation therapy, or therapeutic nerve blocks, and in whom the pain has persisted for longer than six months....
....
c. Surgical Indications -- Failure of conservative therapy including active and/or passive therapy, medication management, or therapeutic injections.... Only patients who meet the following criteria should be considered candidates for neurostimulation :
i. A diagnosis of a specific physical condition known to be chronically painful has been made on the basis of objective findings; and
ii. All reasonable surgical and non-surgical treatment has been exhausted; and
iii. Pre-surgical psychiatric or psychological evaluation has been performed and has demonstrated motivation and long-term commitment without issues of secondary gain; and
iv. There is no evidence of addictive behavior. (Tolerance and dependence to narcotic analgesics are not addictive behaviors and do not preclude implantation.); and
v. The topography of pain and its underlying pathophysiology are amenable to stimulation coverage (the entire painful area has been covered); and
vi. A successful neurostimulation screening test of two-three days. A screening test is considered successful if the patient (a) experiences a 50 percent decrease in pain, which may be confirmed by visual analogue scale (VAS), and (b) demonstrates objective functional gains or decreased utilization of pain medications. Functional gains may be evaluated by an occupational therapist and/or physical therapist prior to and before discontinuation of the trial.
vii. For spinal cord stimulation, a temporary lead is implanted at the level of pain and attached to an external source to validate therapy effectiveness.
(For peripheral nerve screening, a nerve block is performed to define the specific nerve branch but if multiple branches are involved, a screening test for spinal cord stimulation may be indicated.) Long-term functional improvement is anticipated when objective functional improvement has been observed during time of neurostimulation screen exam.
d. Contraindications -- Unsuccessful neurostimulation test - either inability to obtain functional improvement or reduction of pain, those with cardiac pacemakers, patient unable to properly operate the system. It should not be used if future MRI is planned.

LUBA and BCS argued at the hearing before the OWC that Mr. Deubler would not qualify for an SCS under the guidelines because the guidelines limit the application of the SCS to extreme cases of pain, and the evidence did not support a finding that Mr. Deubler was in intractable pain and unable to achieve relief with oral medications. The guidelines do not, as LUBA and BCS suggest, strictly limit the procedure to patients who cannot obtain relief from oral medication. Rather, the guidelines state that neurostimulation"[m]ay be most effective in patients with chronic, intractable limb pain who have not achieved relief with oral medications, rehabilitation therapy, or therapeutic nerve blocks...." LAC 40:I.2113(A)(2)(a). The medical records in evidence show that Mr. Deubler saw Dr. Flagg for chronic pain, which was persistent and worsening. At his September 7, 2017 visit, Mr. Deubler rated his pain as 10/10 or 10+. Although Mr. Deubler acknowledged that narcotic pain medication was helpful in relieving his pain, he nevertheless reported being in significant pain at his office visits. Based on the evidence presented, the OWC judge found that LUBA and BCS failed to prove by clear and convincing evidence that the associate medical director's decision approving the psychological evaluation should be overturned.

On appeal, LUBA and BCS raise two additional requirements for an SCS implant, which they allege were unproven by the medical records and therefore precluded approval of the psychological evaluation: a diagnosis of a specific physical condition known to be chronically painful based on objective findings, and exhaustion of all reasonable surgical treatment. As noted above, the request at issue is not for an SCS implant, but rather for a pre-surgical psychological evaluation to determine whether Mr. Deubler would be a candidate for the SCS implant, contingent on the results of the subsequent SCS trial. It is certainly understandable that pre-surgical testing would not be appropriate for a claimant who could not possibly qualify for the surgical procedure. However, in this case, the supporting medical evidence established that Mr. Deubler's treating physician for his chronic low back pain had reviewed the risks and benefits of the procedure and believed that if Mr. Deubler were able to undergo an SCS trial and obtain greater than 60 percent relief from the trial, then Mr. Deubler could benefit in a number of ways from the implantation of an SCS, including taking less opioid-based pain medication, increasing his functional activity level, and living with less discomfort and pain. The associate medical director was authorized by La. R.S. 23:1203.1 to approve the requested evaluation, although it may vary from the guidelines, if it is proven by a preponderance of the evidence that the evaluation is reasonably required to cure or relieve Mr. Deubler from the effects of his injury under the circumstances. Based on the evidence presented, we cannot say that the OWC judge erred in concluding that LUBA and BCS failed to prove by clear and convincing evidence that the associate medical director's decision was contrary to the provisions of La. R.S. 23:1203.1.

Finally, although Mr. Deubler filed an answer to the appeal requesting attorney fees for work performed in handling the appeal, he did not brief this issue, either in his answer to the appeal or in his untimely-filed appellate brief. Mr. Deubler's answer to the appeal contains only the following assignment of error, with no argument whatsoever: "Attorney's fees should be awarded to claimant and his counsel for work performed in handling this appeal." His appellate brief likewise does not address the assignment of error, but merely includes in the prayer for relief a request for "all other relief in the premises, including attorney fees for work done on appeal, as requested in his Answer to Appeal." This issue has been abandoned because Mr. Deubler did not brief his assignment with argument or citation of authority to support his assertion. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. Under U.R.C.A. 2-12.4(B)(4), this court may consider as abandoned any assignment of error that has not been briefed. State v. Wilson, 13-996, pp. 8-9 (La. App. 5 Cir. 5/21/14), 142 So.3d 275, 279-80. Because Mr. Deubler has failed to brief this assigned error, we consider it abandoned.

CONCLUSION

For the reasons set forth herein, the January 11, 2018 judgment denying the appeal of the Medical Guidelines Dispute decision is affirmed. Mr. Deubler's answer to the appeal, containing only one abandoned assignment of error, is denied. All costs of the appeal are assessed to the appellants, LUBA Casualty Insurance Company and Bogalusa City Schools.

AFFIRMED; ANSWER TO APPEAL DENIED.

      The record on appeal contains only medical records from three office visits in 2017; however, these medical records indicate that Mr. Deubler was treating with Dr. Flagg at least as far back as 2014.

      Although LUBA's denial is not contained in the record on appeal, LUBA's appeal of the associate medical director's decision states that it denied the requests so that it could have Mr. Deubler evaluated pursuant to La. R.S. 23:1121. There is no evidence in the record that such an evaluation took place.


author: PITMAN, J.

text:
    Audrey Lynn Masterson BILLIOT, Plaintiff-Appellant v. Keith David BILLIOT, Defendant-Appellee
    No. 52,391-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    JOHN N. BOKENFOHR, Counsel for Appellant
    WEEMS, SCHIMPF, HAINES, SHEMWELL & MOORE, By: Kenneth P. Haines, Carey T. Schimpf, Shreveport, Counsel for Appellee
    Before PITMAN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   PITMAN, J.

Plaintiff-Appellant Audrey Lynn Masterson Billiot ("Mrs. Henry") appeals the trial court's judgment in favor of Defendant-Appellee Keith David Billiot. For the following reasons, we affirm in part and dismiss in part.

FACTS

The parties married on October 8, 1994, and had three children. On August 19, 2008, Mrs. Henry filed a petition for divorce. The trial court filed a judgment of divorce and incidental matters on February 19, 2009. Mrs. Henry and Mr. Billiot were awarded joint legal custody of the children, and Mr. Billiot was cast for the payment of child support.

On December 28, 2016, Mr. Billiot filed a motion to modify child support. He stated that there have been material changes in circumstances-including that both he and Mrs. Henry have remarried and their two oldest children have reached the age of majority and no longer attend secondary schools-and, therefore, that the child support obligation should be modified.

On May 12, 2017, Mrs. Henry filed a rule for contempt, modification of child support and to establish permanent child support. She alleged that in December 2015, Mr. Billiot unilaterally reduced his monthly child support payments and is in arrears $13,883.25 through the payment due April 2017. She stated that their daughter Caroline, born April 11, 1996, is permanently disabled and will require special education and training, financial assistance and caretakers to assist with her physical and financial needs for the remainder of her adult life. She stated that Caroline has been diagnosed with Asperger's Syndrome (Autistic Spectrum Disorder ) and other emotional, developmental and learning disabilities and is, therefore, entitled to permanent child support pursuant to La. R.S. 9:315.22. Mrs. Henry requested that Mr. Billiot show cause why he should not be held in contempt for his failure to seek guidance from the court as to recalculating child support, why he should not be decreed to be in arrears in his payment of child support and why he should not be required to pay permanent child support for their disabled child.

On June 28, 2017, Mr. Billiot filed exceptions of no right or cause of action and prematurity and an answer. He argued that La. R.S. 9:315.22(D) does not apply because Caroline does not have a developmental disability and is not a full-time student in a secondary school. In his answer, he stated that the parties began to disagree on the amount of child support in June 2016 when Caroline began receiving social security benefits and their second oldest child graduated from high school. He alleged that he continued to pay his child support obligation and also financially supported the children who had reached the age of majority. He stated that he is not in arrears and has overpaid his support obligation by $3,780.

On August 7, 2017, Mrs. Henry filed an opposition to the exceptions. She stated that Caroline attends College Living Experience ("CLE"), an educational program for children with Autism Spectrum Disorder. She argued that the term "secondary school" as set forth in La. R.S. 9:315.22(D) is not limited in cases of disabled children to mean only "high school."

A hearing was held on October 23, 2017. Counsel for Mrs. Henry first addressed the rule for contempt for accrued child support payments, arguing that Mr. Billiot owed a balance of $7,336.65 through December 2016 when he filed his motion to modify child support. Counsel for Mr. Billiot argued that he had overpaid his support obligation. Both parties submitted affidavits and documents in support of their calculations.

The trial court then heard testimony on Mr. Billiot's exceptions. Sabrina Langley testified that she was previously employed by Bossier Parish Community College ("BPCC") as the director of the Program for Successful Employment and described the programs at BPCC available to persons with disabilities. She is currently employed as a special education facilitator for Bossier Parish schools. She explained the different diploma tracks available to Bossier Parish students and noted that the Bossier Parish School Board issues high school diplomas to students with autism if they meet the requirements for graduation. She has not met Caroline and did not know what certificate or diploma Caroline earned.

Miyako Lee, the job development manager at the Louisiana Association for the Blind, testified that she met with Caroline and Mrs. Henry in 2016 about finding employment for Caroline. She learned that Caroline has a high school diploma, had attended BPCC and wanted to work with animals. They found Caroline employment with Affordable Boarding and Pet Grooming, where she worked for several months.

Dr. Laura Harris, an expert in the field of school psychology, testified that she has a Ph.D. in counseling psychology, but has not completed the requirements to be a licensed psychologist. She met with Caroline twice in August 2017 and interviewed Mrs. Henry. She discussed Caroline's medical and educational history and stated that Caroline was diagnosed with Asperger's Disorder (Autism Spectrum Disorder) at the age of 16. Caroline was identified with a disability in kindergarten and had an Individualized Education Program while she was in school. Dr. Harris testified that the CLE program provides structured assistance and quasi-independent living, along with educational and career support. Caroline lives in an apartment, and a resident assistant lives in the same complex to offer support. She opined that Caroline is not able to live on her own without assistance based on her current skill levels. She stated that programs like CLE could help Caroline improve her skills, but that there are skills she may never learn. On cross-examination, she agreed that CLE is not a school.

Mrs. Henry testified that Caroline graduated from high school in 2015, attended BPCC in the fall of 2015 and then started at CLE in Austin, Texas, in January 2017. CLE has two tracks, a career development track and a college track. Caroline started on the career track, but then moved to a blended program when she began taking a continuing education class, i.e., an administrative assistance course, at Austin Community College. Mrs. Henry agreed that Caroline is not working toward a college degree, but is gaining career and educational experience and independent living skills. As Caroline's parent, she receives weekly reports from CLE about Caroline's progress in areas including independent living, career development and financial literacy. CLE has a licensed psychologist and tutors to work with the program participants. Mrs. Henry noted that CLE is a private company and that there are six similar programs in the United States, with the Austin location being the closest to Louisiana. She agreed that CLE categorizes itself as postsecondary support and does not call itself a school. She stated that the goal of Caroline's participation in CLE is independent living.

On January 26, 2018, the trial court filed an opinion, which first addressed Mrs. Henry's rule for contempt. It determined that Mr. Billiot was in arrears $4,961.65 for the months of December 2015 through December 2016. It did not find Mr. Billiot to be in contempt because the evidence did not show a willful disobedience of an order of the court, but, rather, that he made a good faith effort to support his children in collaboration with Mrs. Henry. The trial court then addressed the permanent support of Caroline. It found that Mrs. Henry is the proper party to raise the issue of support under La. R.S. 9:315.22(D) and, therefore, denied Mr. Billiot's exception of no right of action as to La. R.S. 9:315.22(D). The court noted that following Dr. Harris's testimony, the parties stipulated that Caroline has a disability as defined in La. R.S. 28:451.2. It determined that CLE does not satisfy the requirement of full-time enrollment in a secondary school and explained that the substance of the CLE program, not the classification of the institution, is the crux of whether the program is considered secondary education. Citing as contrast Blanque v. Blanque , 95-2012 (La. App. 4 Cir. 4/3/96), 671 So.2d 567, and Summers v. Summers , 03-2562 (La. App. 1 Cir. 10/29/04), 897 So.2d 109, the trial court noted that CLE has no curriculum with standards against which student performance is measured, has no academic component and students do not work toward a measurable goal awarded by receiving a valuable certificate. It also found that Mrs. Henry did not prove that Caroline is enrolled as a full-time student. Therefore, the trial court sustained Mr. Billiot's exception of no cause of action.

The trial court filed a judgment on March 15, 2018. It dismissed Mrs. Henry's claims for contempt against Mr. Billiot for nonpayment of child support and decreed him to be in arrears in the amount of $4,961.65. It decreed that Mrs. Henry does have standing under La. R.S. 9:315.22(D) and dismissed Mr. Billiot's exception of no right of action. Finding that Caroline's participation in CLE does not satisfy the requirement of full-time enrollment in a secondary school, it granted Mr. Billiot's exception of no cause of action and dismissed Mrs. Henry's remaining claims under La. R.S. 9:315.22(D). The trial court continued Mr. Billiot's motion to modify child support.

Mrs. Henry appealed.

On May 31, 2018, the trial court filed a consent judgment in which it ordered that the child support obligation of Mr. Billiot be modified for the parties' remaining minor child to the amount of $976 per month, retroactive to December 28, 2016. It ordered that Mr. Billiot pay to Mrs. Henry the amount of $4,961.65, being the arrearage amount due for the period of December 2015 to December 2016. It also ordered that with the payment of the arrearage, Mrs. Henry waives any and all accounting claims for reimbursement, including extracurricular and extraordinary expenses, and Mr. Billiot waives any retroactive credits due for overpayment on the child support obligation.

DISCUSSION

Continued Support Under La. R.S. 9:315.22(D)

In her first assignment of error, Mrs. Henry argues that the trial court erred when it improperly applied the law and facts regarding the definitions of "secondary school" and "developmental disability" as set forth in La. R.S. 9:315.22(D) and denied her requests for child support and reimbursement for education expenses for CLE. She contends that Caroline's enrollment in a vocational program at Austin Community College in conjunction with her attendance at CLE meets the legal definition of secondary school.

Mr. Billiot argues that the trial court's conclusion that CLE does not meet the requirements of a secondary school under La. R.S. 9:315.22(D) was proper and should not be disturbed on appeal. He contends that Caroline is not enrolled as a full-time student at a secondary school nor has she been since her graduation from high school in 2015 at the age of 19.

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged in the petition. Maw Enterprises, L.L.C. v. City of Marksville , 14-0090 (La. 9/3/14), 149 So.3d 210. Generally, under La. C.C.P. art. 931, no evidence may be introduced to support or controvert the exception of no cause of action. Id. However, an exception to this rule has been recognized by the jurisprudence, and a court may consider evidence admitted without objection to enlarge the pleadings. Id. The parties in the present case participated in the evidentiary hearing, and no one voiced any objection to evidence being considered in ruling on the exception of no cause of action.

Ordinarily, the exception of no cause of action raises a question of law, and the lower court's decision is generally based only on the sufficiency of the petition. Id. Under those circumstances, the review of a lower court's ruling on an exception of no cause of action is de novo . Id. However, in this matter the court heard and considered evidence. A trial court's factual findings are entitled to deference by this court. Under the unique circumstances presented here, the standard of review is manifest error. See Coleman v. Querbes Co. No. 1 , 51,159 (La. App. 2 Cir. 2/15/17), 218 So.3d 665.

When there is a child support award in a specific amount per child, the award for each child shall terminate automatically without any action by the obligor upon each child's attaining the age of majority. La. R.S. 9:315.22(A). La. R.S. 9:315.22(D)

provides an exception to this general rule and states:

An award of child support continues with respect to any child who has a developmental disability, as defined in R.S. 28:451.2, until he attains the age of twenty-two, as long as the child is a full-time student in a secondary school. The primary domiciliary parent or legal guardian is the proper party to enforce an award of child support pursuant to this Subsection.

The parties stipulated that Caroline has a developmental disability, as defined in La. R.S. 28:451.2(11). Therefore, the remaining issue before this court is whether Caroline's participation in CLE fulfills the requirement of La. R.S. 9:315.22(D) that she be a "full-time student in a secondary school."

The term "secondary school" is not defined in La. R.S. 9:315.22(D), and Louisiana courts have found that this term encompasses different types of educational programs and schools. The Court of Appeal of Louisiana, First Circuit, has looked to dictionary definitions to define the term and stated in Summers , supra :

As this court previously observed in Park v. Park , 93-0115 (La. App. 1 Cir. 3/30/94), 634 So.2d 83, 86, regarding similar language in La. R.S. 9:309, predecessor to La. R.S. 9:315.22 D, "The term 'secondary school' is not defined in the statute. Generally, this term denotes a school which is more advanced in grade than elementary school and which offers general, technical, vocational, or college-preparatory courses. Webster's Ninth New Collegiate Dictionary (1983)." Another dictionary defines "secondary school" as "a high school or school of corresponding grade ranking between a primary school and a college or university." Random House Webster's College Dictionary (2000).

In Park , supra , the First Circuit determined that attending a vocational-technical institution on a full-time basis to obtain a high school equivalency diploma was sufficient to satisfy the requirement of full-time enrollment in a secondary school. It noted that "the court should give due consideration not only to the type of educational facility in which the education is pursued, but also to the curriculum which is taught at the facility."

In Blanque , supra , the Louisiana Court of Appeal, Fourth Circuit, determined that a special education student enrolled in an Independent Education Plan curriculum qualified as a secondary school student in good standing pursuant to La. R.S. 9:315.22(C). It noted that the child was enrolled as a full-time student at a high school and that although the curriculum led to a certificate of achievement rather than a high school diploma, it "embodies standards against which [the child's] performance is measured." This curriculum had an academic component and a physical component to address the child's physical disabilities. Discussing Park , supra , the Fourth Circuit stated, "The court implicitly recognized the principle that it should consider the substance rather than merely the form of the educational environment in which the dependent child is working."

In Summers , supra , the First Circuit found that a developmentally disabled child enrolled in a "special school" was entitled to receive child support until age 22 under La. R.S. 9:315.22(D). The First Circuit looked to the legislative history of La. R.S. 9:315.22(D) and stated:

This history reveals that the bill enacting La. R.S. 9:315.22 D "would extend the educational rights of a child past the age of 19 through the age of 22, in cases where the child has a severe disability." The provisions of this section are "limited to those children who are determined to be disabled under the guidelines of the educational system to require rehabilitative educational services after the age that a child would normally graduate." Minutes, Louisiana House Committee on Civil Law and Procedure, April 30, 2001, HB no. 341 by Representative Durand. The history reflects that the author of the legislation testified the effect of the bill would be to "continue child support obligations for children with severe disabilities who are in good standing in a school. " (Emphasis added.) One witness observed that there are cases where severely disabled children remain in school until age 22 and that "the needs of these children remain the same." The same witness stated that after age 22 there are adult services that provide for affected children's care, such as Medicare or other social services. Minutes, Louisiana Senate Committee Judiciary A, May 21, 2001, HB no. 341 by Representative Durand.

The case sub judice is distinguishable from these cases. Unlike the children in Park , Blanque and Summers , Caroline is a high school graduate and received her high school diploma at the age of 19. Therefore, she has successfully completed secondary school.

Further, CLE is not a secondary school. Dr. Harris testified that CLE is not a school. Mrs. Henry testified that CLE describes itself as postsecondary support and not a school. The testimonies of Dr. Harris and Mrs. Henry demonstrate that CLE is a program that assists with independent living skills. Although an element of the program is to provide support to participants enrolled in classes at educational institutions, CLE itself is not a school. Caroline's attendance in one course at Austin Community College also does not fulfill the requirement that she be a full-time student at a secondary school.

Based upon the record before us and the evidence presented at the hearing, the trial court did not err in determining that CLE, the program attended by Caroline, does not satisfy the requirement of full-time enrollment in a secondary school and that under these facts, Mrs. Henry does not have a cause of action under La. R.S. 9:315.22(D).

Accordingly, this assignment of error lacks merit.

Contempt of Court

In her second assignment of error, Mrs. Henry argues that the trial court abused its discretion when it failed to hold Mr. Billiot in contempt of court or award her attorney fees when it found that he was in arrears for child support. Mr. Billiot argues that the consent judgment rendered on May 31, 2018, resolves the issue of arrearages, waives all accounting claims and retroactive credits due and precludes the issue of whether the trial court abused its discretion in denying Mrs. Henry's contempt claim.

Louisiana jurisprudence is well settled that courts will not decide abstract, hypothetical or moot controversies or render advisory opinions with respect to such controversies. Cat's Meow, Inc. v. City of New Orleans Through Dep't of Fin. , 98-0601 (La. 10/20/98), 720 So.2d 1186. An issue is moot when a judgment or decree on that issue has been deprived of practical significance or made abstract or purely academic. Id. A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Id.

Pursuant to the May 31, 2018 consent judgment, this issue on appeal is moot, and this court lacks jurisdiction to consider it.

Accordingly, we dismiss this appeal as to this assignment of error.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Defendant-Appellee Keith David Billiot and against Plaintiff-Appellant Audrey Lynn Masterson Billiot as to the issue of support pursuant to La. R.S. 9:315.22(D). We dismiss as moot the issue of contempt of court. Costs of appeal are assessed to Plaintiff-Appellant Audrey Lynn Masterson Billiot.

AFFIRMED IN PART AND DISMISSED AS MOOT IN PART.

      Mr. Billiot also argued that La. R.S. 9:315.22(E) is not applicable to this case and that Mrs. Henry has no right of action to bring any claim for permanent child support on behalf of Caroline under that subsection. At a hearing on August 14, 2017, Mrs. Henry conceded that she did not have standing under La. R.S. 9:315.22(E). In its January 26, 2018 opinion and March 15, 2018 judgment, the trial court found that Mrs. Henry does not have standing under La. R.S. 9:315.22(E) and granted Mr. Billiot's exception of no right of action as to that subsection.

      Dr. Harris noted that the diagnosis was phrased that way to reflect changes from the DSM-IV to the DSM-5.