Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #044
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 18th day of September, 2017, are as follows:
BY HUGHES, J.:
2015-KP-1283 STATE OF LOUISIANA v. CALVIN KING (Parish of Jefferson)
For the reasons given, the judgment of the appellate court is
reversed, and the trial court judgment, granting the defendant's
motion for new trial, is reinstated.
APPELLATE COURT JUDGMENT REVERSED; TRIAL COURT JUDGMENT
REINSTATED.
GUIDRY, J., dissents and assigns reasons.
CLARK, J., concurs in the result.
CRICHTON, J., concurs with the result.
09/18/17
SUPREME COURT OF LOUISIANA
No. 2015-KP-1283
STATE OF LOUISIANA
VERSUS
CALVIN KING
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIFTH CIRCUIT, PARISH OF JEFFERSON
Hughes, Justice.
This case involves a trial court’s grant of a motion for new trial on the basis
that the verdict was contrary to the law and the evidence pursuant to Louisiana
Code of Criminal Procedure article 851(1). 1 A jury convicted the defendant of
second degree murder and armed robbery. The defendant filed a motion for new
trial, which focused on inconsistencies in the evidence presented to the jury,
arguing that the testimony of the one eyewitness contained internal inconsistencies
and was at least partially irreconcilable with the physical evidence. The trial court
granted the motion, ordering a new trial for the defendant. The appellate court
reversed. For the reasons that follow, we reverse the appellate court and reinstate
the trial court ruling.
1
Both parties agree that the trial court’s grant of the motion for new trial was based on Article
851(1).
1
FACTS AND PROCEDURAL HISTORY
The following narrative was presented at trial. The body of Javier Sanchez
was found on November 2, 2007 in Orleans Parish near the old Jazzland Theme
Park. He had been shot in the abdomen at close range. Earlier that evening, Maria
Abreu, Mr. Sanchez’s girlfriend with whom he shared an apartment on Clearview
Parkway in Metairie, answered a knock at the door. Three armed men forced their
way into the apartment looking for Mr. Sanchez and “two kilos.” Ms. Abreu does
not speak English well and could not understand exactly what the men wanted. She
gave them about $8,000 from a briefcase in the house. The assailants bound her
hands and feet with duct tape and then used the tape to tie her to the bedposts of a
bed on the second floor of the apartment. Ms. Abreu’s cell phone was taken. The
assailants continued to ransack the home.
Mr. Sanchez returned from his errands carrying a drink and a bag containing
food. He yelled to Ms. Abreu when he entered that she should have answered her
phone. Ms. Abreu heard some items fall (later determined to be the food and drink)
and heard the men leave. She then went to the window in the second-floor
bedroom and saw Mr. Sanchez’s Ford Expedition drive away. She saw one person
sitting in the driver’s seat. Mr. Sanchez was sitting in the middle of the back seat
with one person on either side of him. The parking lot of the apartment complex
was dark, but Ms. Abreu said she could see into the Expedition because an interior
light was on.
Mr. Sanchez’s vehicle was found in New Orleans East on November 8,
2007. The car was found under a covered carport adjacent to a residence. The car’s
interior was burned and the steering column was damaged.
At trial, the parties stipulated that a latent fingerprint lifted from the adhesive
side of a roll of duct tape recovered from the living room at the apartment matched
Calvin King’s right index finger. The state’s only eyewitness to any of the events
2
of November 2, 2007 was Ms. Abreu. Also at trial, the defense called an
investigator who testified that based on a reconstruction of the scene, Ms. Abreu
could not have seen what she claimed she witnessed based on where the
Expedition would have been parked, the distance, angle and lighting conditions as
well as an apron on the window that blocked the view from the apartment. Other
inconsistencies brought to light were whether Ms. Abreu previously told police
that the men came knocking on the door twice; whether Ms. Abreu had previously
told law enforcement that she knew Mr. Sanchez was selling cocaine; whether Ms.
Abreu’s mouth had been duct taped; and whether Ms. Abreu had reported to police
that she had been pistol whipped.
A jury returned verdicts of guilty of second degree murder (La. R.S.
14:30.1) and guilty of armed robbery (La. R.S. 14:64.3) on February 1, 2013. The
defendant filed a Motion for New Trial, which was based on Louisiana Code
Criminal Procedure articles 851(1) and 851(2).
Following a hearing, the trial court granted the motion and gave the
following reasons from the bench:
Through all the motions that we heard in this case and the trial
itself, I’ve had a lot of problems with the testimony of Maria Abreu
because of so many inconsistencies that she’s had in her testimony.
And this is strictly a circumstantial case against Mr. King. There were
no witnesses who testified that he committed the murder or he did the
robbery other than Maria Abreu, who was not a witness to the murder,
just to the events that took place in the apartment.
I’m going to grant your motion for new trial.
The state took a writ to the court of appeal, which reversed the trial court in
a split decision. The Fifth Circuit held that the trial court legally erred when it
failed to “adequately state whether it made the required threshold finding that the
defendant suffered an injustice.” State v. King, 15-39, p. 2 (La. App. 5 Cir.
5/13/15). The Fifth Circuit also stated that even if the trial court did determine the
defendant suffered an injustice, the trial court abused its discretion because the
3
inconsistencies in Ms. Abreu’s testimony were “insignificant and did not bear on
the elements of the crimes the State charged the defendant with committing.” Id. at
p. 3.
This court granted the defendant’s writ application. State v. King, 15-1283
(La. 5/20/16), 191 So.3d 1060.
LAW AND ANALYSIS
The grounds for a motion for new trial are found in Louisiana Code of
Criminal Procedure Article 851 2, which provided at the time the defendant filed his
motion:
The motion for a new trial is based on the supposition that injustice
has been done the defendant, and, unless such is shown to have been
the case the motion shall be denied, no matter upon what allegations it
is grounded.
The court, on motion of the defendant, shall grant a new trial
whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made
during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of
reasonable diligence by the defendant, was not discovered before
or during the trial, is available, and if the evidence had been
introduced at the trial it would probably have changed the verdict
or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of
guilty, a prejudicial error or defect in the proceedings that,
notwithstanding the exercise of reasonable diligence by the
defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served
by the granting of a new trial, although the defendant may not be
entitled to a new trial as a matter of strict legal right.
2
The version of Article 851 now in effect differs only in structure and has an additional ground,
Subsection (6) concerning human trafficking, upon which a new trial may be granted.
4
In addition, Louisiana Code of Criminal Procedure article 858, “Review of a
ruling on motion for new trial,” provides:
Neither the appellate nor supervisory jurisdiction of the supreme court
may be invoked to review the granting or the refusal to grant a new
trial, except for error of law.[3]
Article 858 is a “particularized application of the constitutional limitation of
the [s]upreme [c]ourt’s appellate jurisdiction to questions of law only.” State v.
Guillory, 10-1231, p. 3 (La. 10/8/10), 45 So.3d 612, 614. The constitutional
restrictions on the supreme court and the appellate courts in criminal cases to
review only questions of law are found in La. Const. Art. V, §§ 5(C) and 10(B)
(1974). La. Const. Art. V, § 5(C) provides: “In criminal matters, [the supreme
court’s] appellate jurisdiction extends only to questions of law.” La. Const. Art. V,
§ 10(B) provides: “In criminal cases [a court of appeal’s] appellate jurisdiction
extends only to questions of law.”
The defendant makes two assignments of error. The first argues that the
court of appeal erred in ruling that the trial court failed to adequately articulate its
reasons for granting a new trial. More specifically, the defendant argues that the
court of appeal improperly required the trial court “to adequately state whether it
made the required threshold finding that the defendant suffered an injustice.” King,
15-39, p. 2.
The defendant argues there is no requirement that a trial court make a
specific threshold finding that an injustice has been done to the defendant when
ruling on a motion for new trial grounded on Article 851(1). We note that while
there may be some debate about whether a trial court is required to make a
“finding” of injustice in all motions for new trial, in the instant case the new trial
was granted pursuant to Article 851(1), thus the issue of what Article 851 requires
3
Article 858 is also applicable to the courts of appeal. See La. Const. Art. V, § 10(A); State v.
Korman, 439 So.2d 1099, 1100 (La. App. 1 Cir. 1983).
5
as to other grounds is not before the court. It appears the showing of injustice,
which Article 851 itself characterizes as a “supposition,” is best understood as an
implicit finding a trial judge must make to reach his otherwise supported decision
to set aside a verdict and grant a new trial.
The court of appeal and the state cite a number of cases for the proposition
that there must be a threshold determination by the trial court that the defendant
suffered an injustice in order to warrant a reversal of a jury verdict. Neither the
court of appeal nor the state has cited any cases requiring a separate finding of
injustice in a motion for new trial granted pursuant to Article 851(1), which
typically involves factual findings made by the trial court that the appellate courts
are prohibited from reviewing.4 Moreover, cases involving other grounds for a new
trial that are reviewable because they present questions of law do not treat Article
851’s “supposition of injustice” language as a requirement for a separate finding of
injustice subject to review.
For example, the court of appeal relies on State v. Raines to support its
contention there is a threshold requirement of whether the defendant suffered an
injustice. 00-1941 (La. App. 5 Cir. 5/30/01), 788 So.2d 635, 642, writ denied, 01-
1906 (La. 5/10/02), 815 So.2d 833. Setting aside the fact that the defendant’s
motion for new trial was grounded upon Article 851(3) (newly discovered
4
The court of appeal cites State v. Jones, 12-750 (La. App. 5 Cir. 5/16/13), 119 So.3d
250, which involved an Article 851(1) motion for new trial, for the proposition that a “motion for
new trial is based on the supposition the defendant suffered an injustice, and unless this injustice
is demonstrated, the motion for new trial must be denied.” King, 15-39, p. 2. The Jones court
reviewed a trial court’s denial of a post-verdict judgment of acquittal and motion for new trial
based on the verdict being contrary to the law and the evidence. Jones, 119 So.3d at 255-57. The
court of appeal affirmed, reasoning that there was no abuse of discretion as the evidence
presented at trial was sufficient under Jackson v. Virginia, 443 U.S. 307 (1979). Jones, 119
So.3d at 257.
The Jones decision is problematic in two respects. The decision and reasoning in Jones
conflicts with this court’s statements in Guillory, discussed infra, regarding the unreviewability
of an Article 851(1) ruling, and we note that Jones did not seek review with this court. The Jones
court further conflated the trial judge’s role in assessing facts and weighing evidence as a
thirteenth juror under Article 851(1) with the legal question of the sufficiency of the evidence
under an Article 821 motion for post-verdict acquittal. (For a discussion on the thirteenth juror
function, see State v. McKinnies, 13-1412, p. 10 (La. 10/15/14), 171 So.3d 861, 869-70.)
6
evidence), the Raines court did not conduct a separate threshold injustice inquiry.
Rather, the supreme court affirmed the trial court’s denial of the motion for new
trial based on the fact that the defendant failed to show that the alleged new
evidence was in fact new. Id. at 642-43.
The state in its brief cites several cases involving motions for new trial based
on grounds other than that the verdict was contrary to the law and evidence
pursuant to Article 851(1), which likewise do not support a threshold injustice to
the defendant requirement. For example, in State v. Cox, a case decided just after
Guillory, this court found that the trial court abused its discretion when it granted a
new trial pursuant to Article 851(5), holding that the fact that the witness
protection law at issue5 worked as intended to allow a five-year-old rape victim
from not giving testimony in open court, did not show that “an injustice had been
done” nor indicate the ends of justice warranted a new trial. 10-2072, p. 2 (La.
11/19/10), 48 So.3d 275. The Cox decision does not mention a threshold finding of
injustice. Rather, this court determined that the trial court made a legal error, which
is reviewable, in interpreting the statute.
The state also cites for support State v. Miller, 05-1111, pp. 2-4 (La.
3/10/06), 923 So.2d 625, 626-27, which was decided before Guillory and involved
the grant of a new trial under Article 851(3) and (5) that was reversed by the court
of appeal. In holding that the court of appeal overstepped, this court stated, “[e]ven
assuming, arguendo, that . . . in all circumstances a trial court’s ruling whether to
grant or deny a motion for a new trial ‘on the supposition that injustice has been
done the defendant,’ . . . is subject to review under an abuse of discretion standard,
we agree with the dissenting view of Judge Daley that the trial judge in the present
5
This is a specialized statute found in La. R.S. 15:283 that allows a protected person to testify
over closed-circuit television if the protected person would be likely to suffer serious emotional
distress if forced to give testimony in open court and could not otherwise reasonably
communicate his or her testimony to the court or jury. A protected person is a victim or a witness
in a criminal prosecution who is under seventeen years old or who has a statutorily-defined
developmental disability.
7
case did not misuse her authority by granting the motion to serve the ends of
justice, although, in the opinion of an appellate court, defendant was not entitled to
that result as a matter of legal right.” Miller, 05-1111, p. 2, 923 So.2d at 626.
While the state suggests that Miller, through its qualified language (“arguendo”),
requires that a trial court make a reviewable legal finding that an injustice has been
done, this case rather recognized a trial court’s authority to assess whether the
alleged injustice warranted a new trial under Article 851(5), given that the trial
judge sits in a unique position to “get the feel of the case” by observing the
witnesses firsthand as they testify. Id. at 626.
Lastly, the state points to State v. Gilmore, 13-1559 (La. 8/22/13), 127 So.3d
907, where this court held that the trial court abused its discretion in granting a
new trial pursuant to Article 851(2), a ground that presents a question of law for
review, and where this court said “[w]e agree . . . that none of the trial court’s
stated reasons show that injustice has been done the defendant.” However, this
court went on to state that none of the five incidents complained of in the motion
for new trial were grounds for granting a new trial. Id. Thus, this court’s basis for
reversing the trial court in Gilmore was that none of the incidents rose to the level
of prejudicial legal error.
In sum, none of the cases cited by the state treat the showing of “injustice to
the defendant” in Article 851 as a separate requirement for trial courts deciding a
motion for new trial.
Nevertheless, the state argues that, if the jurisprudence does not already, it
should be changed to require a court granting a new trial to specifically find an
injustice was done in each case, including under Article 851(1). The state posits
that such a finding would be legal in nature and therefore reviewable. As a
practical matter, however, it is unclear how interpreting Article 851 as imposing
such a threshold requirement would make an Article 851(1) ruling reviewable in
8
practice, given the inherently factual nature of the assessment in an Article 851(1)
ruling. Such a requirement would appear to essentially do no more than force a
trial judge to make redundant findings; i.e., in the rare instance in which the judge
finds a new trial warranted, the judge must not only explain why with detailed
reasons satisfying the enumerated Article 851 ground but must also declare that the
defendant suffered “an injustice.” On balance, it appears the state seeks to add a
new facet to the jurisprudence simply to make unfavorable Article 851(1) rulings,
which already appear to be a rarity, reviewable.
Clearly the Code requires a showing that an injustice has been done. When a
trial court grants a new trial, it has necessarily determined that an injustice has
occurred. Because review is of matters of law only, this determination may be
reversed only if there are no facts to support it, or if the trial court abused its
discretion concerning a question of law in reaching its determination to grant the
new trial. If a trial court grants a motion for a new trial, and there are no facts to
support that decision, or if the trial court commits legal error in doing so, then no
injustice has occurred, and the motion for a new trial must be denied, no matter
upon what allegations it is grounded.
As to the second assignment of error, the defendant argues that the court of
appeal erred in reviewing findings of fact in order to reverse the trial court’s grant
of a new trial. Specifically, the appellate court stated, “[w]hile Ms. Abreu’s trial
testimony varied from some prior statements, the inconsistencies were insignificant
and did not bear on the elements of the crimes the State charged defendant with
committing.” King, 15-39, p. 3 (emphasis added). The defendant urges that the
majority’s finding that the inconsistencies in Ms. Abreau’s statements were
“insignificant” was inappropriate.
The defendant urges that the Fifth Circuit majority misapplied Guillory,
which stands, not for the proposition that a trial court must in every instance
9
“adequately articulate” its reasons for granting a new trial (including a specific
finding that injustice was done), but rather for the proposition that a ruling on an
Article 851(5) motion for new trial is reviewable because it can be assessed for
legal error, while an Article 851(1) ruling is not generally reviewable because it
involves a purely factual question squarely within the purview of the trial court.
The Louisiana Constitution does not permit fact-finding and credibility
assessments by an appellate court in a criminal case. See La. Const. art. V, § 10(B)
(“In criminal cases [] appellate jurisdiction extends only to questions of law.”); La.
Code Criminal Proc. art. 858. Under Article 858, a ruling granting a new trial is
subject to review only to the extent that it involves determinations of law. Such
legal determinations are reviewed under an abuse of discretion standard. Guillory,
45 So.3d at 615. Motions for new trial granted under Article 851(1), where the
verdict is contrary to the law and the evidence, present nothing for an appellate
court to review because the trial court’s determination is inherently fact driven. Id.
In Guillory, this court abrogated the law in place at the time, which had
provided that an Article 851(5) motion for new trial ruling was not subject to
review, and announced that an Article 851(5) order for a new trial to serve “the
ends of justice . . . although the defendant may not be entitled to a new trial as a
matter of strict legal right” was reviewable for an abuse of discretion because it
presents a legal question. Guillory, p.6, 45 So.3d 616. While an Article 851(1)
motion for new trial was not at issue in Guillory, this court noted, “[w]hen a new
trial is granted pursuant to La.Code Crim. Proc. art. 851(1) because the trial judge
finds the verdict to be contrary to the evidence, i.e., there is reasonable doubt as to
the guilt of the defendant, that is unreviewable because the [s]upreme [c]ourt may
not review facts in a criminal case.” Id. at 614-15. The appellate majority in this
case did not address Guillory’s statement expressly distinguishing Article 851(1)
rulings from other grounds for new trial and, as the defendant and Judge Johnson’s
10
dissent have urged, the appellate majority erred to the extent it ignored this aspect
of the law. See State v. Skelton, 340 So.2d 256, 259 (La. 1976) (“‘[W]e have
uniformly held that a bill of exception reserved to the refusal of the trial judge to
grant a motion for a new trial based on Article 851(1), relative to sufficiency of the
evidence presents nothing for our review.’”) (quoting State v. Plummer, 281 So.2d
716 (La. 1973)); State v. White, 21 So.2d 877, 878 (1945) (“The granting of a new
trial on [grounds that the verdict is contrary to the law and evidence] does not
present any question of law.”); see also State v. Mallette, 15-0039, p. 2 (La.
4/2/15), 164 So.3d 814, 815 (Crichton, J., concurring: “If the [new trial] was
granted under [Article] 851(1), it is not reviewable because the supreme court
cannot review facts in a criminal case; on the other hand, if the motion was granted
under [Article] 851(5), the supreme court is allowed to review it as a question of
law.”).
Essentially conceding current law, the state argues that the law should be
changed to allow review of Article 851(1) rulings. It argues that Article 851(1) is
effectively an “enumeration” of Article 851(5), which may be reviewed generally,
in that both share in common the thirteenth juror standard. See State v. McKinnies,
13-1412, p. 10 (La. 10/15/14), 171 So.3d 861, 869-70 (trial judge’s duty in
evaluating a motion under Article 851(1) and Article 851(5) is “to put itself in the
position of a juror. We have held ‘[i]t is appropriate for the trial court to act as a
juror for other grounds related to a motion for new trial . . . such as a verdict being
contrary to the law and the evidence or the court being of the opinion that the ends
of justice would best be served by granting a new trial.’”). In asking for substantial
changes to the jurisprudence to enable the review of Article 851(1) rulings, the
state invites the kind of independent fact-finding by appellate courts that appear to
be in violation of the state constitution.
11
The state urges that it is difficult to ascertain how frequently trial courts
exercise their authority as a thirteenth juror to set aside verdicts they find contrary
to the law and evidence because it is unclear how often such rulings are made but
not appealed. Further, the state’s warning that the current interpretation of Article
851(1) could enable rogue judges, who seek only to prevent a conviction and
thereby may operate as an insurmountable barrier for the prosecution, appears
unfounded as yet, despite the long existence of this authority. Grants of new trials
under Article 851(1) have occurred so infrequently over the past 80 years since the
adoption of the rule6 that the prospect of a trial court stonewalling the state and
wasting judicial resources in repeatedly retrying a case appears far too remote to
justify any intervention into the current state of the jurisprudence or the legislative
prerogative.
Finally, the state asks the court to upset the longstanding jurisprudence
concerning the reviewability of Article 851(1) and also craft a per se rule that a
trial court cannot grant a new trial under Article 851(1) based purely on its
rejection of a sole witness’s testimony. However, doing so would radically
restructure a system that has been in place for nearly a century and, perhaps more
importantly, risk violating the constitutional prohibition on appellate court fact-
finding in criminal matters. Without doubt, Article 851(1) accords Louisiana trial
judges immense power to set aside a jury verdict by acting as a thirteenth juror. See
State v. Hampton, 98-0331 (La. 4/25/99), 750 So.2d 867, 879-80; State v. Snyder,
98-1078 (La. 4/14/99), 750 So.2d 832, 859, n.21, rev’d on other grounds, Snyder v.
Louisiana, 552 U.S. 472 (2008). However, the state shows no reason why this
power should be eliminated by the judiciary when the Legislature has not opted to
do so.
6
See La. Code Crim. Proc. art. 509(1) (1928).
12
A holding that the trial court’s decision is unreviewable respects the
constitutional admonition that appellate courts cannot review facts in criminal
matters. See La. Const. Art. V, §§ 5(C) and 10(B). However, if there is
demonstrative, patent abuse of the legal system or the process, nothing prevents an
appellate court from discharging its review obligations merely because of a
talismanic recital of Article 851(1).
In the case at bar, the trial court’s reasons are sparse, but there is no
conclusion reasonably possible but that the trial court found that an injustice had
been done to the defendant. The inconsistencies in the testimony cited are not
“insignificant,” as characterized by the court of appeal. Because there was no
witness to the murder, key was the testimony that the defendants were seen driving
away with the victim seated between them in the victim’s car. However, this
testimony was contradicted by defense testimony that it would have been
physically impossible to have seen these events as described by the witness from
her given vantage point. These factual matters may not be reviewed by the court of
appeal or the supreme court.
CONCLUSION
When a motion for a new trial is granted pursuant to Louisiana Code of
Criminal Procedure article 851(1), there is no threshold requirement that the trial
court make a finding that an injustice has been done to the defendant that is
reviewable as a matter of law. Nor may the court of appeal or the supreme court
review the findings of fact of the trial court in granting such a motion based on the
constitutional prohibition of the appellate courts reviewing factual findings in a
criminal case.
13
DECREE
For the reasons given, the judgment of the appellate court is reversed, and
the trial court judgment, granting the defendant’s motion for new trial, is
reinstated.
APPELLATE COURT JUDGMENT REVERSED; TRIAL COURT
JUDGMENT REINSTATED.
14
09/18/17
SUPREME COURT OF LOUISIANA
No. 2015-KP-1283
STATE OF LOUISIANA
VERSUS
CALVIN KING
ON APPLICATION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL
FIFTH CIRCUIT, PARISH OF JEFFERSON
Guidry, J., dissents and assigns reasons.
I respectfully dissent from the majority opinion today. In my view, the court
of appeal majority correctly applied La. Code Crim. Proc. art. 851 to require the trial
court to make a determination that an injustice has been done before a motion for
new trial should be granted. The language of the statute could not be more clear that
“no matter upon what allegations it is grounded,” which would include La. Code
Crim. Proc. art. 851(1), unless it is shown that an injustice has been done to the
defendant, a motion for new trial shall be denied. La. Code Crim. Proc. art. 851.
Because the trial court made no such finding, the court of appeal properly reviewed
whether the trial court had legally erred in granting defendant’s motion for new trial
under La. Code Crim. Proc. art. 851(1). I therefore would affirm the court of appeal’s
decision to reverse the trial court’s grant of the motion for new trial.
1
09/18/17
SUPREME COURT OF LOUISIANA
No. 15-KP-1283
STATE OF LOUISIANA
VERSUS
CALVIN KING
Clark, J., concurs in the result.
I respectfully concur.
09/18/17
SUPREME COURT OF LOUISIANA
No. 2015-KP-1283
STATE OF LOUISIANA
VERSUS
CALVIN KING
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIFTH CIRCUIT, PARISH OF JEFFERSON
CRICHTON, J., concurs with the result.