Brett Auttonberry v. Cox Communications, Inc. Eugene Davis and USAA Property and Casualty

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0966

VERSUS

COMMUNICATIONS, INC., EUGENE DAVIS AND USAA
PROPERTY AND CASUALTY

Judgment Rendered
T 2 9 2024

Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C691240

The Honorable Timothy E. Kelley, Judge Presiding

Lauren E. Cavalier Counsel for Plaintiff/Appellant
Baton Rouge, Louisiana Brett Auttonberry

Matthew C. Nodier Counsel for Defendants/ Appellees
Amanda E. McGowen Cox Communications & Eugene Davis
Baton Rouge, Louisiana

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.

CSN+ 2 5, CM6U` s -
s
r=

y

LANIER, J.

The plaintiff-appellant, Brett Auttonberry, appeals the judgment of the

Nineteenth Judicial District Court based on the unanimous jury verdict following a

trial on the merits. For the reasons set forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On or about August 31, 2019, Mr. Auttonberry was driving his personal

vehicle on Highway 64 in Zachary, Louisiana as he approached an intersection

with a traffic light. Highway 64 contains a left turn lane, two straight travel lanes,

and a right turn lane at this intersection. The defendant, Eugene Davis, was

travelling in the same direction as Mr. Auttonberry in a vehicle owned by Cox

Communications, Inc. ( Cox). Mr. Davis was acting in the course and scope of his

employment with Cox at the time.

Mr. Auttonberry alleged that as he approached the intersection in the right

travel lane, he saw the lane was congested and moved to the left travel lane. Mr.

Auttonberry alleged he prepared to stop at the intersection, when the traffic light

turned green. As he proceeded through the intersection, Mr. Davis, who was in the

left turn lane, merged into the left travel lane where Mr. Auttonberry was driving

and collided into the left front of Mr. Auttonberry' s vehicle. Mr. Auttonberry

claimed the accident caused damage to himself and his vehicle.

According to Mr. Davis, he approached the intersection in the left travel lane

with no vehicles in front of him, and as he was about to pass by Mr. Auttonberry,

Mr. Auttonberry attempted to merge into the left travel lane. The right rear of Mr.

Davis' s vehicle came into contact with the left front of Mr. Auttonberry' s vehicle.

Officer Michael Rispone of the Zachary Police Department responded to the

scene of the accident and took the statements of both drivers. He did not issue

traffic citations to either driver.

2

On November 26, 2019, Mr. Auttonberry filed a petition for damages, in

which he claimed to have been injured in a car accident by Mr. Davis, who was

operating a vehicle owned by Cox and was acting in his course and scope of

employment with Cox at the time of the accident. Mr. Auttonberry also alleged

that at the time of the accident, Cox and Mr. Davis were insured, but did not name

the insurer. Mr. Auttonberry also claimed that he was insured by USAA Property

and Casualty (USAA)', and named USAA as a defendant.

The case proceeded to a jury trial on the merits. The jury unanimously

found that Mr. Davis was not at fault in the accident and awarded Mr. Auttonberry

no damages. On August 29, 2022, the district court signed a judgment in

conformity with the jury' s verdict and dismissed Mr. Auttonberry' s claims against

Cox and Mr. Davis with prejudice.2 Mr. Auttonberry has appealed this judgment.

ASSIGNMENTS OF ERROR

Mr. Auttonberry makes four assignments of error:

1. An unidentified witness' s statement from Ofr. Rispone' s body camera
footage was improperly excluded from evidence.

2. The live testimony of a hired investigator for surveillance and a Louisiana
State Trooper, who did not investigate the accident, was improper. The

testimony had no relevance to the subject matter at hand and was admitted as
impeachment evidence, when Mr. Auttonberry had not testified to anything
that he could have been impeached on, and was introduced to prove that Mr.
Auttonberry had the propensity to switch lanes in traffic and drive above the
speed limit. This " propensity evidence" is in direct violation of La. C.E. art.
608( B).

3. Surveillance footage regarding Mr. Auttonberry' s injuries was admitted
against his objection and was not proper impeachment.

4. Jurors who couldn' t commit to a fair an impartial trial were improperly
selected.

DISCUSSION

1 Mr. Auttonberry later stated in a motion to dismiss his claims against USAA without prejudice
that he had incorrectly named USAA in his petition for damages, and that the insurer' s correct
name was USAA General Indemnity Company.

2 The district court signed a judgment granting Mr. Auttonberry' s motion to dismiss his claims
against USAA without prejudice on March 9, 2020.

3

Jury Selection

We must first consider Mr. Auttonberry' s fourth assignment of error, since it

concerns the jury selection process and could potentially require a remand to the

district court. Mr. Auttonberry alleges in his brief that during voir dire, some

prospective jurors admitted to being unable to follow the law and/or be impartial.

Mr. Auttonberry challenged these prospective jurors for cause, and the district

court denied those challenges. As a result, Mr. Auttonberry claims he was forced

to exhaust his peremptory challenges on impartial jurors who should have been

excused for cause and was unable to excuse other prospective jurors from the jury

panel. Mr. Auttonberry specifically addresses five jurors in his brief: Nicklos

Speyrer, Keith Schexnayder, Ashley Matherne, Cynthia Stevens, and Natalie

Miller.

Louisiana Code of Civil Procedure article 1765( 2) provides that a juror may

be challenged for cause when he " has formed an opinion in the case or is not

otherwise unpartial, the cause of his bias being immaterial." A trial judge is vested

with broad discretion in ruling on challenges for cause, and the appellate court

should not disturb its ruling unless the voir dire as a whole indicates an abuse of

discretion. Riddle v. Bickford, 2000- 2408 ( La. 5115/ 01), 785 So. 2d 795, 801;

Palmer v. IJV Insurance Risk Retention Croup, Inc., 18- 404 ( La. App. 5 Cir.

12/ 19/ 18), 262 So. 3d 1006, 1010, writ denied, 2019- 0107 ( La. 4/ 29/ 19), 268 So. 3d

W

If a prospective juror is able to state to the trial court' s reasonable

satisfaction that he could render an impartial verdict according to the law and

evidence, a challenge for cause to that juror is properly denied. Scott v. American

Tobacco Company, 2001- 2498 ( La. 9/ 25/ 01), 795 So. 2d 1176, 1182. However, a

challenge for cause should be granted, even when a prospective juror declares his

ability to remain impartial, if the juror' s responses as a whole reveal facts from

M

which bias, prejudice, or inability to render judgment accordingly may be

reasonably implied. Palmer, 262 So. 3d at 1010. A prospective juror' s seemingly

prejudicial response is not grounds for an automatic challenge for cause, and the

denial of such a challenge is not an abuse of discretion, if after further questioning

the prospective juror demonstrates a willingness and ability to decide the case

impartially according to the law and evidence. Palmer, 262 So. 3d at 1010.

Prior to the counsel for the parties questioning the prospective jurors, the

district court asked the prospective jurors as a panel if there was any reason that

would prevent any of them being fair or impartial jurors in the instant case, or if

they would be unable to listen to the evidence and apply the law as instructed.

None of the prospective jurors answered or raised their hands.

Nicklos Speyrer

During voir dire, counsel for Mr. Auttonberry asked each prospective juror

what he or she thought about when hearing the phrase " frivolous lawsuit." Mr.

Speyrer answered, " So, in full disclosure, I have now been pretty active through
LABI3,
trying to work on some of the tort reforms." When asked by counsel for

Mr. Auttonberry if he was passionate about his work with LABI, Mr. Speyrer

answered that he was. When asked if he could set that experience aside and be a

judge in the instant case, the following exchange took place:

Q: ... Given that, I mean ... and you seem to have a passion for
your work with LABI]. You probably have a passion for that, huh?

A: I do.

Q: [ A]nd in all fairness and honesty ... it' d be hard to set that aside
and be a judge in this case, right?

A: I mean, I --

Q: It' s a hard one to answer, I know.

3 " LABI" stands for " Louisiana Association of Business and Industry."

5

A: It' s very hard to answer, but right. Therethere is that
background, that broader, sort of, more macro bias ... I would hate to
think I would apply it to an individual case or situation, but --

Q: ... Is your best honest answer that it' d be very difficult to set
that aside and be a hundred percent impartial here?

A: Probably.

Later in voir dire, the jury was asked if any would hold it against Mr.

Auttonberry that he is represented by a law firm that frequently advertises, and Mr.

Speyrer raised his hand. When counsel for Mr. Auttonberry asked Mr. Speyrer if in

a case such as the instant case, would he lean in favor of the defendant, Mr.

Speyrer answered " yes." Counsel for Mr. Auttonberry subsequently called Mr.

Speyrer out by asking:

Q: I know a lot of people that say I wouldn' t want anything to do
with a large money verdict. I would think, probably, Mr. Speyrer
would feel that way, right? I' m not— I don' t want to be involved in a
large personal injury verdict. Right?

A: Yes.

Counsel for Mr. Auttonberry then asked the jury if any would have difficulty

with Cox being held responsible for the acts of its employees. Mr. Speyrer raised

his hand and stated, "... I own a business with two hundred employees that don' t

always make really, really good decisions, so that one just hits close to home."

In response, defense counsel asked Mr. Speyrer:

Q: Mr. Speyrer, I felt like you were picked on some, so I got to ask
you some specific questions here.When [ the district court] originally
asked this whole panel if you would be able to fairly judge the facts
and follow the law, I believe you said yes; is that correct?

A: Yes.

Q: Was there anything asked of you today that changes your
opinion that you could follow the law as [ the district court] instructed
you— would instruct you do to [ sic] at the end of this case?

A: No.

Q: ... But once you hear the facts, do you think if you hear the
facts, and those facts [ are] in favor of rendering a verdict— in favor of

G

Mr. Auttonberry, could you render that verdict, if [the district court]
instructed you on the law and you felt the evidence followed that law?

A: Yes.

Defense counsel then asked Mr. Speyrer if he knew that if an employee of

his was acting in the course and scope of his or her employment with his company,

so long as the act was not an intentional tort, he would be responsible for that

employee' s actions. Mr. Speyrer responded that was correct. Mr. Speyrer was

also asked if he would have a problem with rendering a verdict against Cox, and he

said that he would not have a problem with it.

At a bench conference, counsel for Mr. Auttonberry moved to strike Mr.

Speyrer for cause, based on his experience with tort reform and his admissions that

he could not be a fair juror. Defense counsel stated that although Mr. Speyrer may

not enjoy rendering a verdict against Cox, Mr. Speyrer nevertheless stated he could

do it. The district court denied Mr. Auttonberry' s challenge for cause against Mr.

Speyrer, stating:

I kept thinking to myself, if it goes another step, he' s out of
here. At the end of the day, though, when it was explained to him that
he has to follow the law, would he do it? ... [ H] e said well, yeah, if
the evidence meets that. I ain' t happy about it, it' s not something I
want to do. So I' m going to deny the motion for cause on [ Mr.
Speyrer].

Lastly, counsel for Mr. Auttonberry brought to the district court' s attention

Mr. Speyrer' s opinion as a business owner of vicarious liability. The district court

stated:

I' m going to maintain my ruling. I think— the voir dire is
done without their knowledge of what the law is and— which is the
only reason I think a lot of them ... don' t even know they' re allowed
to do such a thing. And ... I' ll give them instruction[.] Yeah, the law
allows for it, and here' s how you do it, you know? So, I think once
they get their instructions ... they made it real clear they' ll follow the
law.

When a juror' s ability to be impartial is challenged, the district court must

determine whether the juror can put aside his personal thoughts and apply the law

7

as instructed. Sensat v. R360 Environmental Solutions, Inc., 2019- 623 ( La. App. 3

Cir. 3/ 11/ 20), 297 So. 3d 52, 56, writ denied, 2020- 00772 ( La. 10/ 6/ 20), 302 So. 3d

529. In the instant case, the district court made the required determination of

whether Mr. Speyrer could put his personal opinions aside and impartially decide

the case. Although Mr. Speyrer disclosed that he was involved in tort reform on

behalf of LABI, an owner of a business of over two hundred employees, and

generally favored the defendant in personal injury lawsuits that involved the

vicarious liability of employers, he also clearly stated that he could judge the

instant case based on the law as instructed, despite any personal feelings he might

have had to the contrary. Mr. Speyrer was therefore sufficiently rehabilitated as a

juror by the questions posed by defense counsel, and the district court did not

abuse its discretion by denying Mr. Auttonberry' s motion to excuse Mr. Speyrer

for cause.

Keith Schexnavtk

On the voir dire question concerning tort reform, Mr. Schexnayder said that

like Mr. Speyrer, he was in favor of tort reform, but that he would not immediately

think a case is a frivolous lawsuit and would hear the evidence. Mr. Schexnayder

differentiated himself from Mr. Speyrer in saying he did not own a business and

therefore was not as passionate about tort reform as Mr. Speyrer. Mr. Schexnayder

stated to counsel for Mr. Auttonberry more than once that he could be fair and

make a decision on the evidence given. Counsel for Mr. Auttonberry then posed a

hypothetical question to Mr. Schexnayder that if he were in Mr. Auttonberry' s

place as the injured plaintiff, would he want someone as himself sitting in the jury.

Mr. Schexnayder stated he probably would not want someone such as himself in

the jury, because of his opinions on tort reform.

When asked whether he would have a problem with awarding money for

pain and suffering as opposed to medical bills, Mr. Schexnayder stated,

W] hereas medical bills [ are] medical, the doctor tells you that this is going to

happen, then yeah, you can.... Pain and suffering is just a little harder." Counsel

for Mr. Auttonberry then asked Mr. Schexnayder if he would need to see more

evidence than required by law, to which Mr. Schexnayder answered that he would.

Mr. Schexnayder also stated that he would require a burden of proof higher than

preponderance of the evidence to grant an award for pain and suffering.

Defense counsel followed up on the question of awarding pain and suffering

by asking Mr. Schexnayder:

Q: ... [ H]opefully, you' re given the evidence, and you can decide
for yourself what ... Mr. Auttonberry is or is not owed ... [ L] et' s say
you come to the conclusion that damages were owed to Mr.

Auttonberry, and let' s assume that the attorneys do a good job and
explain to you what pain and suffering means, and ... why he would
need it, why it' s part of our system, why it should be awarded in this
If they do that job and explain those things to you ...
type of scenario.

would you have a problem following the law and the evidence, and
rendering that award at that point?

A: No. No, not at that point.... If the evidence supports it, correct.

Counsel for Mr. Auttonberry moved to strike Mr. Schexnayder for cause.

The district court found that Mr. Schexnayder had been rehabilitated, stating:

He' s in favor of tort reform. He said he can take things by case- by-
case basis and be fair. He struggles with the issue of pain and
suffering, because he thinks that it' s harder than medical bills to
assess. He seems to have a problem with giving money damage[ s] for
pain and suffering, but I thought he was rehabilitated on that ... I
think he was rehabilitated on the pain and suffering issue. Could you
award it? Yes, he could, if the evidence showed it.

Counsel for Mr. Auttonberry pointed out that Mr. Schexnayder stated he

would require a burden of proof higher than preponderance of the evidence to

award damages for pain and suffering. Defense counsel argued that Mr.

Schexnayder had been rehabilitated in that regard, stating:

Mr. Schexnayder] said [ his] pain and suffering bias is that he really
doesn' t understand it. He doesn' t understand that we' re going to give
money to [ Mr. Auttonberry] just— for somebody who is injured,
which is what we explained to the jury.... I believe that when I asked
him specifically about this case ... he said [ he' d] want more. And I

0

asked him what that more was, and he said I ... need evidence, I need
to see the facts. And I said ... if you were shown facts in this trial,
and the evidence supports awarding pain and suffering, and the judge
instructs you in the award of pain and suffering ... could you do it?
And he said yes, he could.

The district court agreed with defense counsel that Mr. Schexnayder would

follow the law if he were given sufficient evidence. The district court noted, as it

had done with Mr. Speyrer, that although Mr. Schexnayder' s personal opinions

may be otherwise, he could nevertheless follow the law and evidence and award

damages for pain and suffering if he found it necessary. We find that the district

court properly denied Mr. Auttonberry' s motion to strike Mr. Schexnayder for

cause for the same reasons stated regarding Mr. Speyrer.

Natalie Miller

Ms. Miller appeared on the second panel of prospective jurors, and defense

counsel was allowed to ask his questions first. During the questioning, Ms. Miller

stated that her husband had been employed for about fifteen years as an

information technology ( IT) specialist by the law firm that represented Mr.

Auttonberry.' The district court then asked Ms. Miller to approach the bench,

along with counsel for the parties. Ms. Miller stated she knew a lot about the

inner -workings" of the law firm but would still be able to " listen to the case."

Ms. Miller then stated that she did not have much respect for the firm, in regard for

how she was once allegedly treated by one of the partners. She again stated that

she could listen to Mr. Auttonberry' s story and not be biased. She only felt that

her husband was overworked at the law firm.

Ms. Miller then stated that she would prefer that someone other than herself

sit as a juror, but that her opinions about the law firm would not affect her ability

to fairly hear Mr. Auttonberry' s case. Counsel for Mr. Auttonberry asked Ms.

4 It is later mentioned by counsel for Mr. Auttonberry at bench conference that Ms. Miller was
divorced from her husband.

10

Miller if she would treat Mr. Auttonberry equally to the defendant, and Ms. Miller

said she would. The district court denied Mr. Auttonberry' s motion to strike Ms.

Miller for cause, noting that Ms. Miller stated she could be fair and impartial, and

that she had also expressed bias toward Cox during voir dire.' Like Mr. Speyrer

and Mr. Schexnayder, Ms. Miller demonstrated that she could separate her

personal opinions from her task as a juror and render a fair and impartial verdict.

The district court was therefore within its discretion to deny Mr. Auttonberry' s

motion to strike Ms. Miller for cause. See Sensat, 297 So. 3d at 56.

Cynthia Stevens

When counsel for Mr. Auttonberry asked the prospective jurors if any felt

that a " feather -weight" of proof in favor of the plaintiff was " too easy" for the

burden of proof in a civil matter, Ms. Stevens raised her hand and said, " I think

there needs to be more than just a feather' s weight." While Ms. Stevens explained

that she did not expect a plaintiff to prove his or her case beyond a reasonable

doubt, she explained, " It doesn' t have to be that big, but you know, proof that yes,

that the person was very ... hurt, like, suffered for it; you know, there' s some

justification ... to, you know, a verdict." Counsel for Mr. Auttonberry then asked

where her personal burden of proof fell between preponderance of the evidence

and beyond reasonable doubt, and Ms. Stevens replied, " Maybe midway."

Counsel for Mr. Auttonberry then asked Ms. Stevens if her idea of burden of proof

is more than what the law allows to render a verdict for the plaintiff, and Ms.

Stevens answered, " Yeah ... probably so."

5 Counsel for Mr. Auttonberry stated to the district court that Ms. Miller was seen during a recess
talking on her cell phone about the instant case, but neither the district court nor Mr. Auttonberry
took steps to verify this. Counsel for Mr. Auttonberry also stated that she had smelled what she
suspected to be alcohol on Ms. Miller' s breath. The district court stated that it could not smell

alcohol on Ms. Miller' s breath, and neither the district court nor Mr. Auttonberry took steps to
verify this. Since the record does not contain evidence of either of these allegations, we cannot
review them on appeal. See Our Lady of the Lake Hosp. v. Vanner, 95- 0754 ( La. App. 1 Cir.
12/ 15/ 95), 669 So. 2d 463, 465, cert. denied, 525 U. S. 818, 119 S. Ct. 57, 142 L.Ed.2d 45 ( 1998).

11

In speaking with defense counsel, Ms. Stevens acknowledged that she would

need more information on the case before reaching a decision. When asked if she

heard that, more probable than not, Mr. Auttonberry endured pain and suffering

and had future medical expenses, could she find for Mr. Auttonberry according to

the burden of proof proscribed by law, Ms. Stevens responded, " Yes, if the

evidence was there."

After counsel for Mr. Auttonberry moved to strike Ms. Stevens for cause,

the district court said, " I don' t even have anything under her that I have a concern

about." Counsel for Mr. Auttonberry pointed out that Ms. Stevens stated she would

require a higher burden of proof than preponderance of the evidence. The district

court then addressed the entire panel by saying:

If I instruct you that, that is the burden you decide it by, would anyone
require more to do so? If so, please raise your hand. And I guess the
question is whether ... you personally believe that it shouldn' t be that
way, you' re still going to follow the law? Anybody who would say
no, raise your hand.

None of the prospective jurors spoke or raised their hands, at which the

district court stated to counsel for Mr. Auttonberry:

I think that has been a theme through this whole thing. You were ...

asking them questions that has to do with what their personal feelings
are ... but when they' re told they have to do it this way, they agree to
do it the way you want, then— that' s not what their personal feeling is.
So, no one has said they won' t do it that way.... And so, I believe
they' re going to follow the law, and they will apply the standard that
I' m going to tell them.

The district court then denied Mr. Auttonberry' s motion to strike Ms.

Stevens for cause. We find the district court made the proper inquiry, not just to

Ms. Stevens, but to the whole jury panel to determine whether they could apply the

correct burden of proof prescribed by law, and the motion to strike Ms. Stevens for

cause was correctly denied.

12

Ashley Matherne

When asked by counsel for Mr. Auttonberry if she would need more proof

than what the law requires to render a verdict for the plaintiff, Ms. Matherne stated

she would need " more than just a feather," apparently meaning she would hold the

plaintiff to a higher burden of proof than preponderance of the evidence. Counsel

for Mr. Auttonberry then asked Ms. Matherne:

Q: And if ...the Court instructs you that a feather' s offset, plaintiff
wins ... your best honest answer is that you can' t follow that?

A: Probably.

Q: Probably? Be honest. Yes?

A: Yeah.

Q: You won' t be able to follow, will you?

A: Probably not.

Counsel for Mr. Auttonberry then moved to strike Ms. Matherne for cause

because she stated she would not follow the appropriate burden of proof required

by law to render a verdict. The district court pointed out that at the beginning of

the voir dire hearing, when it asked the prospective jurors if they had any reasons

why they felt they could not be impartial, properly evaluate evidence, or follow the

law as instructed, Ms. Matherne gave no indication that she could not. The district

court further stated that it believed Ms. Matherne would follow the law as

instructed, and denied Mr. Auttonberry' s motion to strike Ms. Matherne for cause.

A trial court has great discretion in ruling on challenges for cause and the

appellate court should not disturb its ruling unless the voir dire as a whole indicates

an abuse of discretion.
Rentrop v. Arch Insurance Company, 2017- 0635 ( La. App.
1 Cir. 12/ 29/ 17), 241 So. 3d 357, 372.
We note that when asked individually by

counsel for Mr. Auttonberry, Ms. Matherne stated she could " probably not" follow

the law regarding the appropriate burden of proof. In the question raised by the

13

district court to the entire panel as to whether or not the prospective jurors would

have difficulty following the law as instructed, which was raised shortly after the
district court denied the motion to strike Ms. Matherne for cause, Ms. Matherne

remained silent and did not raise her hand; Ms. Matherne' s responses are at best

equivocal, and the record has no other information that would clarify her response.

See State v. Dodson, 2016- 0473 ( La. 10/ 18/ 17), 234 So. 3d 34, 37. 6 We also find

Ms. Matherne.
that there was no attempt by defense counsel to rehabilitate

However, we must review the entire voir dire process as a whole before making the

determination whether the district court has abused its wide discretion in denying

the challenge for cause involving Ms. Matherne. Rentrop, 241 So. 3d at 372; see

also Sensat, 297 So. 3d at 56.

Viewing the voir dire process as a whole, we do not find that the district
court abused its wide discretion in denying the challenges for cause of the

aforementioned jurors. While Ms. Matherne was not rehabilitated to the extent of

the other four jurors, when the district court asked if any juror felt he or she could

not be a fair or impartial juror, Ms. Matherne did not respond.

Each party was allotted six peremptory challenges. In the first juror panel,

Mr. Auttonberry used four of those six challenges to excuse Mr. Speyrer, Mr.

Schexnayder, Ms. Stevens, and Ms. Matherne. In the second juror panel, Mr.

Auttonberry used his fifth peremptory challenge to excuse Ms. Miller. After Ms.

Miller, Mr. Auttonberry refrained from exercising his last peremptory challenge on

seven subsequent prospective jurors, with two other prospective jurors excused by

the defense' s use of its peremptory challenges. Counsel for Mr. Auttonberry raised

no objections against these jurors and did not hove to challenge any of those jurors

for cause.

6 District courts may consider criminal jurisprudence when addressing challenges to jurors for
cause in civil trials. Sensat, 297 So. 3d at 56.

14

Mr. Auttonberry argues in his brief that he was forced to exhaust his

peremptory challenges on potential jurors who admitted bias, and other jurors who

should have been excused were forced to remain on the jury panel. We find no

merit in this argument. On the contrary, the record indicates that Mr. Auttonberry

found six prospective jurors suitable in the first panel, and seven prospective jurors

suitable in the second panel. His final peremptory challenge was used to excuse

the second -to -last prospective juror in the second panel. oreover, Mr. Auttonberry

had the ability to excuse one of these prospective jurors but did not do so until

there were enough jurors chosen to empanel a full jury. In a civil case, nine of

twelve jurors must vote for a verdict in order for it to be legal. La. C. C. P. art.

1797( B); Cane v. O' Brien, 2023- 0718 ( La. App. 1 Cir. 2/ 23/ 24), 384 So. 3d 1003,

1007, writ denied, 2024- 00478 ( La. 6/ 25/ 24), 386 So. 3d 1082. The jury that heard

Mr. Auttonberry' s case consisted of at least nine jurors toward whom Mr.

Auttonberry articulated no objection. Mr. Auttonberry' s fourth assignment of error

is therefore without merit.

Evidentiary Rulings

Unidentifed Witness' s Statement

Defendants filed a motion in limine to exclude a statement made by an
unknown eyewitness,
which was allegedly recorded by Ofr. Rispone' s body

camera at the scene of the accident, as well as Mr. Auttonberry' s own summary of
her statement. The district court granted the defendants' motion, and ordered that

the statements in question be redacted from the footage before it could be viewed

by the jury. At trial, the jury viewed Ofr. Rispone' s body camera footage, but the

footage only shows Ofr. Rispone talking with Mr. Auttonberry and Mr. Davis.
The defendants argued that the statements of the unidentified witness and

Mr. Auttonberry' s summary are inadmissible as hearsay. Hearsay is a statement,

other than one made by the declarant while testifying at the present trial or hearing,

15

offered in evidence to prove the truth of the matter asserted. La. C. E. art. 801( C).

Hearsay evidence is not admissible except as otherwise provided by the Louisiana
Code of Evidence or other legislation. La. C. E. art. 802. Mr. Auttonberry argues

that the unidentified witness' s statement and his summary statement fall under the

present sense impression" exception to the hearsay rule. A present sense

impression is a statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or immediately

thereafter. La. C. E. 803( 1). Mr. Auttonberry also argues the statement of the

unidentified witness is admissible under the " unavailable declarant" exception of

La. C. E. art. 804( B)( 6).'

Mr. Auttonberry could not provide the name or address of the unidentified

witness, and therefore the witness was unavailable to testify for trial. See La. C. E.

art. 804( A). The statement of an unidentified witness who is unavailable to testify

is inadmissible unless it falls into one of the hearsay exceptions. See Jackson v.

Board of Supervisors of Louisiana State University and Agricultural and

Mechanical College, 2019- 0457 ( La. App. 1 Cir. 5/ 26/ 20), 307 So. 3d 227, 233,

writ denied, 2020- 00837 ( La. 10/ 14/ 20), 302 So. 3d 1117. Neither did Mr.

Because Mr.
Auttonberry proffer the testimony of the unidentified witness.'

Louisiana Code of Evidence article 804( B)( 6), in pertinent part, states:

In a civil case, a statement not specifically covered by any of the foregoing
exceptions if the court detennines that considering all pertinent circumstances in
the particular case the statement is trustworthy, and the proponent of the evidence
has adduced or made a reasonable effort to adduce all other admissible evidence
to establish the fact to which the proffered statement relates and the proponent of
the statement makes known in writing to the adverse party and to the court his
intention to offer the statement and the particulars of it, including the name and
address of the declarant, sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet it. If, under the
circumstances of a particular case, giving of this notice was not practicable or
failure to give notice is found by the court to have been excusable, the court may
authorize a delayed notice to be given, and in that event the opposing party is
entitled to a recess, continuance, or other appropriate relief sufficient to enable
him to prepare to meet the evidence.

8 Mr. Auttonberry provides the unidentified witness' statement in his brief, which is not
evidence. See Distefano v. B & P Const., Inc., 04- 25 ( La. App. 5 Cir. 5/ 26/ 04), 874 So. 2d 407,
411, writ denied, 2004- 1735 ( La. 10/ 15/ 04), 883 So. 2d 1058.

16

Auttonberry failed to make proffer, he is barred procedurally from advancing this
assignment of error on appeal. See State v. Johnson, 2000- 0680 ( La. App. 1 Cir.

12/ 22/ 00), 775 So. 2d 670, 678- 79, writ denied, 2002- 1368 ( La. 5/ 30/ 03), 845

So. 2d 1066.

Furthermore, in determining whether a hearsay statement meets the present

sense impression exception, the critical factor is whether the statement was made

while the individual was " perceiving" the event or " immediately thereafter." This

immediacy requirement permits only the passage of "time needed for translating
observation into speech." Buckbee v. United Cas Pipe Line Company, Inc., 561

So.2d 76, 84 ( La. 1990). The party seeking to admit evidence under an exception

to the hearsay rule has the burden to establish application of the exception.

Johnson, 775 So. 2d at 679. Without any proffer of the unidentified witness' s

statement, we cannot determine how soon after the accident the statement was

made, or what the unidentified witness actually perceived. We therefore do not

find that the statement of the unidentified witness, nor Mr. Auttonberry' s summary

of that statement, fit the present sense impression exception of the hearsay rule.9

The district court was correct to exclude the two statements in question.

Impeachment Evidence

9 We do not find that the statement of the unidentified witness meets the " catchall" exception of
La. C. E. art. 804( B)( 6). When invoking this exception, the court must first determine that the
hearsay evidence is material, is " more probative on the point for which it is offered than any
other evidence which the proponent can procure through reasonable efforts," and that the

admission of the evidence will serve general purposes of the evidence rules and the " interests of
justice." M & R Drywall, Inc. v. MAPP Construction, LLC, 2017- 0186, 2017- 0187, 2017- 0188

La. App. 1 Cir. 4/ 29/ 19), 280 So. 3d 260, 269, writs denied, 2019- 01325, 01403, 2019- 01411
La. 11/ 19/ 19), 282 So. 3d 1073- 74, uoting Buckbee, 561 So. 2d at 82 n. 10. We note that Mr.
Auttonberry was able to provide Ofr. Rispone his own impression of the accident as one of the
involved drivers. Mr. Auttonberry' s own impression of the accident is more probative than an
unidentified witness' s statement that is not contained in the record; therefore we do not find it
would serve the interests of justice to admit the unidentified witness' s statement under La. C. E.
art. 804( 8)( 6).

17

When asked on cross- examination if he considered himself a defensive

driver, Mr. Auttonberry stated that he did. 10 When asked if he was an aggressive

driver, Mr. Auttonberry said he was not. According to Mr. Davis' s account of the

accident, Mr. Auttonberry darted into his lane of travel in order to get around the

cars in front of him. Mr. Auttonberry stated that was not something he would do to

get around traffic. Defense counsel asked Mr. Auttonberry if, since 2019, he had

ever illegally used a turning lane to pass up cars ahead of him. Mr. Auttonberry

stated he had not. Defense counsel then asked Mr. Auttonberry if he generally

follows the speed limit when he drives, to which Mr. Auttonberry answered that he

generally" does. When defense counsel asked Mr. Auttonberry if he considered

himself as having a " lead foot," Mr. Auttonberry said that he did not.

Defense counsel approached the bench at that time and voiced his intent to

introduce evidence of traffic citations Mr. Auttonberry received on dates prior to

the accident. Defense counsel noted that the district court had previously ruled that

the traffic citations were inadmissible as evidence, but that Mr. Auttonberry had

just stated that he does not speed, which, according to defense counsel, " opens the

door for impeachment" with the traffic citations. Counsel for Mr. Auttonberry

responded by stating that defense counsel was mischaracterizing Mr. Auttonberry' s

testimony, pointing out that Mr. Auttonberry did not say he had never sped in his

life, but that he generally follows the speed limit. The district court ruled that Mr.

Auttonberry' s response " opens the door" to impeachment evidence.

Defense counsel then asked Mr. Auttonberry if he received in 2019 two

speeding citations, to which Mr. Auttonberry said that he did. He admitted that the

first citation was for driving fifty miles per hour in a thirty-five miles per hour

to Defense counsel prefaced the question by defining a defensive driver as " constantly keeping
aware of your surroundings to make sure that, even if somebody else is negligent, you can
prevent an accident because you' re aware."

18

zone, and the other citation was for driving sixteen to twenty miles per hour over

the speed limit."

Defense counsel called Rodney Perro, a private investigator who was hired

by the defendants to conduct surveillance on Mr. Auttonberry' s driving habits after
the accident. Prior to Mr. Ferro' s testimony, counsel for Mr. Auttonberry objected

The district court
to Mr. Perro potentially giving his opinion as testimony.

overruled the objection, stating that Mr. Perro can testify as to his own

observations of Mr. Auttonberry' s driving. Mr. Perro then testified that he

monitored Mr. Auttonberry and took videos of him over two days in 2022. The

videos are not of Mr. Auttonberry driving his vehicle, but Mr. Perro testified he

witnessed Mr. Auttonberry on the first day driving in excess of a " good, safe speed

limit," on a curve with a forty to forty-five miles per hour speed limit, with Mr.

Mr. Perro gauged Mr.
Auttonberry driving at fifty-five to sixty miles per hour.

Auttonberry' s speed by watching his own speedometer while he was following Mr.

Auttonberry at the same speed. Mr. Perro then testified that on the second day of

surveillance, he attempted to follow Mr. Auttonberry as he drove but lost sight of

him on Highway 61 toward St. Francisville, Louisiana, where there was a

bottleneck of heavy traffic, and Mr. Auttonberry sped up to get ahead of a car. It

was at that point that Mr. Perro lost sight of him.

Defense counsel then called Trooper John Cannon of the Louisiana State

Police as an impeachment witness, accompanied by dash camera footage taken by

i l Later in the trial, counsel for Mr. Auttonberry attempted to introduce evidence of traffic
citations Mr. Davis pled guilty to prior to the accident, after Mr. Davis could not accurately
recall how many traffic citations he had received in his lifetime. Defense counsel objected to the
introduction of the traffic citations, and the district court sustained the objection. Mr.

Auttonberry now argues that the district court made contradictory evidentiary rulings regarding
impeachment evidence of the same kind, and therefore Mr. Auttonberry is entitled to a new trial.
Regardless of whether the district court erred in refusing to admit evidence of Mr. Davis' s prior
traffic citations, we disagree that it entitles Mr. Auttonberry to a new trial. Defense counsel

properly introduced other impeachment evidence against Mr. Auttonberry that was clearly
proper, to wit: the testimony of Rodney Perro, and the dash camera footage of Trooper John
Cannon. We find this other evidence on its own was sufficient to impeach Mr. Auttonberry' s
credibility.

19

Prior to Tpr.
Tpr. Cannon when he made a traffic stop of Mr. Auttonberry.

Cannon' s testimony, counsel for Mr. Auttonberry objected to the dash camera

footage being displayed, claiming she had not been given an opportunity to view
the video, and that the evidence would be irrelevant. The district court allowed the

video over the objection, stating that is was being introduced for the sole purpose

of impeaching Mr. Auttonberry' s statements that he is a safe driver.
Trooper Cannon testified that he initiated a traffic stop of Mr. Auttonberry

on January 10, 2022. He stated he observed Mr. Auttonberry driving at eighty-

seven miles per hour in a fifty-five miles per hour zone, verified by Tpr. Cannon' s
Since
radar. Defense counsel then played the dash camera footage for the jury.

Tpr. Cannon engaged his police lights on a bridge with little shoulder, Mr.

Auttonberry continued to the end of the bridge, where lanes merged. Tpr. Cannon

observed Mr. Auttonberry increase speed to get ahead of a car before merging.

Once off the bridge, Tpr. Cannon observed Mr. Auttonberry hit his brakes

suddenly and swerve to the right shoulder of the highway. Tpr. Cannon stated that
because of Mr. Auttonberry' s maneuver, he had to stop very close to the rear of

Mr. Auttonberry' s vehicle, and his police cruiser was " almost perpendicular" to the

highway as he stopped.

Relevant evidence" means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. La. C. E. art. 401.

In questions of relevancy of evidence, much discretion is vested in the trial court,

its ru

manifest abuse of discretion. State v. Kitts, 2017- 0777 ( La. App. 1 Cir. 5/ 10/ 18),

250 So. 3d 939, 965, writ denied, 2018- 00872 ( La. 1/ 28/ 20), 291 So. 3d 1057.

Generally, a witness not testifying as an expert may not give testimony in
the form of opinions or inferences. However, the rule is subject to the limited

m

exception of La. C. E. art. 701, which provides that a lay witness may provide

testimony in the form of opinions or inferences where those opinions or inferences
are rationally based upon the perception of the witness and helpful to a clear
understanding of his testimony or determination of a fact at issue. Louisiana Land
and Exploration Co. v. Verdin, 95- 2579 ( La. App. 1 Cir. 9/ 27/ 96), 681 So. 2d 63,

66, writ denied, 96- 2629 ( La. 12/ 13/ 96), 692 So. 2d 1067, cert. denied, 520 U.S.

1212, 117 S. Ct. 1696, 137 L.Ed.2d 822 ( 1997)

A witness' s credibility may be attacked intrinsically concerning any matter

having a reasonable tendency to disprove the truthfulness or accuracy of his
testimony. La. C.E. art 607( C). Extrinsic evidence, such as evidence contradicting

the witness' s testimony, is admissible when offered solely to attack the credibility

of a witness unless the district court determines that the probative value of the

evidence on the issue of credibility is substantially outweighed by the risks of

undue consumption of time, confusion of the issues, or unfair prejudice. La. C. E.

art. 607 ( D)( 2). A district court is given wide discretion when deciding whether to

admit impeachment evidence. State v. Rose, 50, 861 ( La. App. 2 Cir. 9/ 28/ 16), 206

So. 3d 1102, 1111 n.6, writ denied, 2016- 1943 ( La. 9/ 15/ 17), 225 So. 3d 487.

In the instant case, defense counsel first asked Mr. Auttonberry whether he

was an aggressive driver, which Mr. Auttonberry denied. He was then asked

whether he had ever illegally used a turning lane to get ahead of traffic, which he
denied. Mr. Auttonberry was then asked if he had a " lead foot," which he denied.

It was at that point that defense counsel impeached Mr. Auttonberry intrinsically

by asking him if he had received two traffic citations in 2019. This question was

asked in response to Mr. Auttonberry saying he " generally" followed the speed

limit. Although Mr. Perro was a lay witness, he provided opinion testimony based

on his own observations of Mr. Auttonberry' s driving in excess of the speed limit,

and this testimony was based on reasonable inferences he made from observing the

21

speedometer in his vehicle while following Mr. Auttonberry at the same speed.

Mr. Perro also observed Mr. Auttonberry speed ahead of another car before

merging into traffic, which is the same driving tactic that Mr. Davis stated resulted

in his accident with Mr. Auttonberry. Finally, the dash camera footage of Tpr.

Cannon was introduced to impeach Mr. Auttonberry on his statements that he

generally followed the speed limit, and that he does not illegally use lanes to merge

ahead of traffic.

All the aforementioned evidence fits the definitions of intrinsic and extrinsic

evidence introduced solely for the purpose of impeaching Mr. Auttonberry' s

credibility. Based on the district court' s wide discretion to admit such evidence,

we find that the aforementioned evidence was relevant and probative to the issue of

Mr. Auttonberry' s credibility. Although Mr. Auttonberry argues that the

introduction of this impeachment evidence is in violation of La. C. E. art. 608( B), 12

the evidence was not used to attack his character for truthfulness but rather was

used to attack specific statements Mr. Auttonberry had made on cross- examination

at trial and was relevant to the issue surrounding those statements. 13 Mr.

Auttonberry' s second assignment of error is therefore without merit.

In Mr. Auttonberry' s third assignment of error, he claims the district court

erred in allowing the defendants to introduce surveillance video evidence to

impeach him regarding the extent of his injuries. On direct examination, Mr.

Auttonberry testified that since the accident, his ability to bend at his waist is
Louisiana Code of Evidence article 608( 13) states, in pertinent part:

Particular acts, vices, or courses of conduct of a witness may not be inquired into
or proved by extrinsic evidence for the purpose of attacking his character for
truthfulness.

13 Compare to Brewer v. J.B. Hunt Transport, Inc., 2008- 1666 ( La. App. 1 Cir. 3/ 18/ 09), 9 So. 3d
932, 942- 43, reversed on other grounds, 2009- 1408, 2009- 1428 ( La. 3/ 16/ 10), 35 So. 3d 230,
where evidence of plaintiff's drug use was introduced on the issue of quantum, when it had been
stipulated that there was no evidence of drug use contributing to plaintiff' s injury. This court
found that a single, isolated instance of drug use by plaintiff resulting in his termination of
employment was not indicative of his future employment potential, and that testimony regarding
plaintiff' s prior drug use and arrests was irrelevant and, therefore, inadmissible.

r

limited. On cross- examination, Mr. Auttonberry was asked again if he cannot lift
At that point,
anything, to which he answered, " Just anything of any weight."

defense counsel attempted to play a series of surveillance videos of Mr.

Defense counsel stated
Auttonberry, and counsel for Mr. Auttonberry objected.

the surveillance videos were impeachment evidence because Mr. Auttonberry " said

he can' t bend or pick up anything of substance." Counsel for Mr. Auttonberry said

that defense counsel had mischaracterized Mr. Auttonberry' s statement, stating that

Mr. Auttonberry stated that he could bend. The district court overruled the

objection and allowed defense counsel to proceed.

Regardless of whether the district court was correct or not to allow these

surveillance videos of Mr. Auttonberry into evidence, the jury found that Mr.

Davis was not at fault for the accident, and that Mr. Auttonberry was not entitled to

damages. We have not disturbed the jury' s verdict with respect to the issue of

liability, and therefore the third assignment of error, and any arguments Mr.

Auttonberry may have regarding the issue of his injuries, are moot.

The judgment of the Nineteenth Judicial District Court, which adopts the

unanimous jury verdict in the instant case, finding the defendants -appellees, Cox

Communications, Inc. and Eugene Davis, not at fault and dismissing the suit of

plaintiff-appellant, Brett Auttonberry, with prejudice, is affirmed. Costs of this

appeal are assessed Mr. Auttonberry.

23