author: [t DREW, J.

text:
    STATE of Louisiana Appellee v. Stewart C. MOREHEAD Appellant.
    No. 38,124-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 2, 2004.

      Louisiana Appellate Project, By Margaret S. Sollars, Counsel for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Shirley M. Wilson, Assistant District Attorneys, Counsel for Ap-pellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   [t DREW, J.

Stewart C. Morehead was convicted of second degree murder and sentenced to life imprisonment, without benefit of probation, parole, or suspension of sentence, from which conviction and sentence he appeals. We affirm.

FACTS

The defendant was initially charged by indictment with first degree murder, later reduced to second degree murder, the offense for which he was tried, convicted, and sentenced. The victim, Ezekiel Jones, was the lover of defendant’s wife, Clarissa Morehead (“Clarissa”). Sometime previous to the night of the murder, defendant discovered the illicit relationship and threatened her. She agreed to a plot so that Morehead could kill her lover. The victim was last seen alive in Monroe, Oua-chita Parish, just after midnight on July 9, 1999, as he entered Clarissa’s van. Jones was savagely killed. Two days later, the body was found in Richland Parish.

Prior to trial, Clarissa agreed to testify against the defendant in exchange for the state accepting her plea of guilty to manslaughter. Three days before trial, the defendant filed a motion to quash for lack of jurisdiction, as the body was found in Richland Parish and no physical evidence was found in Ouachita Parish. Defendant argued that venue in Ouachita Parish was thus improper, as the trial court lacked jurisdiction of the case. By agreement, disposition of the motion was deferred to the merits.

| .TESTIMONY

Clarissa Morehead

Under a grant of use immunity, Clarissa Morehead testified that:

• She and the defendant had a plan to kill Jones because of her infidelity with Jones.
• Her role was to lure Jones to a selected location on Green Road in Ouachita Parish.
• On the night of July 8-9, 1999, the defendant armed himself with a revolver and hid under a blanket in the back of the van while she drove around looking for Jones.
• She asked a teenager, Roderick Greely, to help find Jones.
• She waited for Jones in the parking lot of a Hyde Food Store, where Debra Greely (“Big Deb”) saw her.
• About midnight, Jones approached Clarissa, and she told him that she had rented a motel room in Rayville for a romantic liaison.
• Jones told her that he couldn’t leave for another 30 minutes.
• She drove back to her home, where the defendant asked her to get a hunting knife out of his work truck.
• Around 12:30 a.m., with the defendant again in the back of the van, she drove back to the parking lot and picked up Jones.
• She drove to the Green Road location.
• When the van stopped, Clarissa asked Jones to open the van’s passenger door, so they could get into the back of the van.
• As Jones got out to open the door, Clarissa saw her husband waiting at the door for Jones.
• As Jones was opening the rear passenger door, she heard gunshots.
• Afterwards, the defendant came around to the driver’s side of the van and told her that everything would be okay.
|?* She went around to the other side and saw Jones’ body.
• She watched as the defendant pulled the body into the woods.
• She and the defendant then got into the van and drove to a car wash, where the defendant washed the outside of the van.
• They then headed home, where the defendant told her to get some trash bags.
• They changed clothes, placing the clothes worn during the murder into the small trash bags.
• The bags of clothes and the handgun were discarded on Sunny Day Road in Ouachita Parish.
• The clothes shown her at trial were the same clothes they had discarded on Sunny Day Road.
• After disposing of the clothes, they went back to Green Road, where the defendant put the body into two large trash bags while she held a light.
• The defendant loaded the body into the bed of his truck, and the two drove to a secluded area on Bayou La-fourche, in Richland Parish.
• With Clarissa holding a light, defendant shoved the body into the bayou.
• Later, the defendant cleaned out the back of his truck with a power washer, then went to work, at which time Clarissa went to sleep.
• She admitted giving three conflicting statements to the police.
• She denied seeing the gun or the knife at Green Road, but the defendant did tell her, as they were driving along Sunny Day Road, that he was throwing out the gun.

Roderick Greely

Roderick Greely, 17 years old at the time of trial, 15 years old at the time of the murder, testified that he was out walking on the night of July 8, 1999, and Clarissa stopped him to ask his help in locating Jones. Greely told Jones that Clarissa was looking for him, and watched as Jones went to |4the van driven by Clarissa. He then walked back down the street to Jones’ girlfriend’s house. Greely was unsure about this time frame.

Neal Harwell

Detective Neal Harwell of the Louisiana State Police Bureau of Investigations, testified that in his investigation of the July 9, 1999, murder of Ezekiel Jones:

• He photographed the body and the crime scene, establishing that the body had six gunshot wounds and a slit throat.
• The wounds inflicted would normally result in a large loss of blood, but no blood was found in the area around the body.
• The only blood found was on the victim’s shirt.
• Roderick Greely told him that he had seen Jones with Clarissa that night.
• The next day, Harwell and other officers went to the Morehead home to interview Clarissa, ascertaining that she and the defendant were not home.
• As they were in the driveway, a Sergeant Harold noticed what looked like possible blood stains on the back glass of the van.
• The defendant later signed a waiver to allow the van to be searched.
• When he first interviewed Clarissa, she only admitted briefly meeting with Jones on that night because she had loaned him some money in the past, and did not want her husband to find out.
• She next told him that she was at Janice Morehead’s playing dominos that night, until two or three o’clock in the morning.
• He (Harwell) then asked about the second meeting that night, at which time Clarissa became emotional and told Harwell that the defendant was going to kill her and that it was either Jones or her.
Is* She then told the officers about the defendant hiding in the back of the van as she lured Jones into the van and drove to Green Road, where the defendant shot and stabbed Jones to death.
• She told of their disposal of the gun, coming back home, getting the truck, and then taking the body to Bayou Lafourche.
• The officer had Clarissa take them to the site on Green Road to look for evidence, but as they were waiting for the crime lab to show up, a hard rain, lasting several days, began to fall.
• Because of this rain, no evidence was recovered at the Green Road site.
• Clarissa showed them the creek where the gun was discarded.
• With Clarissa’s information, the plastic bag of clothing was located off Sunny Day Road, not far from where the gun was later found.
• Det. Harwell acknowledged that Jones’ socks, although listed in the autopsy report, were now missing, explaining that the socks found in the bag at the defendant’s place of employment could not have been the victim’s socks.

Patrick Lane

Patrick Lane, from the Louisiana State Police Crime Lab, was accepted as an expert in the field of ballistics and weapons identification. He testified that:

• The blood evidence at the Bayou La-fourche crime scene may have been lost because of rain.
• No relevant evidence was recovered from the Green Road crime scene.
• He received for testing a RG brand .38 Special caliber revolver with black tape on the grip.
| f;» He could find no identifiable fingerprints on the black tape from the grip.
• He received six fired cartridge cases removed from the gun, as well as the slugs recovered from Jones’ body.
• The casings were made by Remington Peters and the recovered bullets were Remington Peters 130 grain full metal jacket bullets, a somewhat unusual bullet in the market.
• He compared the bullets with other bullets fired from the revolver in question and reached the opinion that the bullets recovered from Jones’ body were fired from the RG revolver found on Sunny Day Road.

Alejandro C. Vara

This LSP Crime Lab Forensic Scientist was accepted as an expert in the field of serology. He testified that:

• He tested the bloodstains on the defendant’s shoes and socks.
• DNA testing of the shoes’ bloodstains could not exclude Jones as the donor.
• The Moreheads were excluded as the donors of the blood on the shoes.
• DNA testing did not produce enough alleles in the shoe sample for him to definitely testify that the blood sample on the shoe came from Jones, theorizing that something in the shoe material prevented the necessary amplification to the DNA required for a full analysis of the sample.
• The odds that someone other than Jones was the donor of the DNA found on the socks were one in “hundred seventeen trillion.”
• As to blood found on a tissue taken from the same bag as the shoes and socks, DNA testing excluded Jones and the Moreheads as donors.
• No bloodstains were found on any of the remaining clothing recovered.
|7* The plastic bag containing the clothing tested positive for blood, but the origin of the blood may have been either human or animal blood.
• The plastic bag containing the shoes and socks did not test positive for blood.
• No blood was found on the hunting knife discovered in the defendant’s truck, the van, or the truck.

Dr. Steven Timothy Hayne

Dr. Steven Hayne, who was accepted as an expert in the field of pathology, practicing in the field of anatomic and clinical forensic pathology, testified that:

• He conducted the autopsy of Jones, finding that Jones died of the combination of three gunshots to the abdomen, three gunshots to the. chest, and a knife wound to the neck.
• There were other non-lethal slash and stab wounds on the chest and neck, plus abrasions on the back indicating that Jones’ body had been dragged by someone holding his left foot.
• The angle of entry of the bullets into Jones’ body indicated that he was on the ground when he was shot at close range, with all gunshots being independently lethal.
• The shots came close together, probably being fired by the same shooter.

William Gibson, Jr.

This witness, a nephew of the defendant, identified the RG .38 Special caliber revolver and the box of Remington Peters .38 Special ammunition in evidence as belonging to him. Gibson testified that a few weeks before July 8, 1999, the defendant asked to borrow the gun, because of prowlers around his home. He further testified that a few days before July 8, 1999, the defendant came to see him a second time and gave him a card with the defendant’s phone number on it, telling Gibson that he wanted |sGibson’s help in getting “Tupac” into the country, because “he was going to kill that m* * * * *-f* * * *

Debra Greely

Debra Greely (referred to in other testimony as “Big Deb”), testified that:

• About midnight on the night in question, she was in front of the Hyde Food Store where she saw Clarissa in her van, acting nervous.
• When she asked Clarissa why she was out so late, Clarissa claimed to be there to make a phone call, although Big Deb never saw her make a call.
• She had been present when her nephew made a statement to the police that Clarissa asked him to find Jones around 1:00 a.m., acknowledging that this time frame was later than her encounter with Clarissa around midnight.

Janice Morehead McGee

This sister of the defendant testified that on July 10, 1999, Clarissa called her and said that she needed to talk to her, after which she and her husband met with Clarissa, who said that she needed an alibi, asking McGee to tell the police that Clarissa was at home playing dominos and planning a birthday party for the defendant, on the night of July 8-9, 1999. McGee admitted that she never provided this information to the police.

Marguita Boatwright

This witness was the daughter of the defendant, and the half-sister of Clarissa. She testified that:

• On July 8-9, 1999, all of them were home until about midnight, when Clarissa left alone in the van.
1She told the defendant that Clarissa had gone to the store.
• After looking into some cabinets, Morehead said he was walking to the store.
• He returned a few minutes later, telling her that Clarissa had not gone to the store.
• He nervously waited at home until Clarissa came home around 1:30 or 2:00 a.m.
• Morehead and Clarissa then left in his work truck, advising her that if anyone inquired, to tell them that they were taking Uncle John to Shreveport.
• The defendant and Clarissa came home some time in the night, then left together again around 6:00 or 7:00 a.m.

Stewart C. Morehead

After the jury was allowed to make a closely-monitored inspection of the defendant’s van and his work truck, the defendant testified that:

• Prior to Jones’ death, he and Clarissa were having marital difficulties, having been counseled in June of 1999 by his brother, Rev. Jeffery Morehead.
• He never threatened to kill either his wife or Jones.
• On the night of July 8, 1999, he was shaving when his wife left in the van, whereupon he walked to the corner to see if she really went there.
• At that time, he saw “that Greely girl” on her porch.
• He came home and was sitting on his porch when Eddie Bond came by to visit with him.
• He also visited with his next-door neighbor, Jessie Bryant, after which he and Bond went into the house and drank some beer.
• When looking in a cabinet, the defendant noticed that his .38 Special caliber revolver was gone, as well as his .22 magnum revolver.
• He was home when Clarissa returned in the van.
• He did not remember the time of her return.
| in» Clarissa was nervous, crying and shaking, asking him to please help her.
• She got a change of clothes and the two left in the defendant’s work truck.
• At her direction, the defendant drove to his place of employment, where he made some coffee and tried to find out what Clarissa was talking about.
• Although Clarissa said, “he’s dead,” he never asked who was dead.
• He inquired as to the whereabouts of the revolver.
• She told him that it was underneath the seat of the van.
• She changed clothes at his office.
• He denied that the socks recovered from the dumpster were his.
• He denied receiving the .38 Special caliber revolver from his nephew.

On cross-examination, the state asked the defendant whether he had been con-' vieted of manslaughter in the mid-eighties. Defense counsel objected on the grounds of inadequate discovery as to this matter. Outside the presence of the jury, defense counsel argued that the manslaughter conviction was not listed on the “rap sheet” he was provided, and that the state had told him that it was not going to use other crimes evidence. The state argued that although the manslaughter conviction was not in the rap sheet, it was an Oklahoma conviction and included in a group of Oklahoma documents provided to defense counsel. The trial court recessed for the day, ordering the parties to brief the issue.

After reviewing the record and the memorandum from counsel, the trial court made a limited ruling that the state had given notice of the prior h manslaughter conviction when it provided the Oklahoma documents to the defense counsel on January 11, 2002, and denied the defendant’s objection.

When testimony resumed, the state again asked the defendant about this conviction, with the defendant answering that he did not recall the exact Oklahoma charge to which he pled guilty, but that he did receive a four-year suspended sentence. The state asked no further questions on that issue. The state asked the defendant about his wife’s employment just prior to the murder, and the defendant couldn’t recall. The defendant testified about problems he was having in the neighborhood the year prior to the murder.

The defendant further testified that:

• Debra Greely did not testify that she saw him on the night of the murder because no one asked her whether or not she had seen him.
• Eddie Bonds came over around 11:45 p.m., staying until after 1:00 a.m.
• He did not know why his daughter Marguita did not testify about the drinking with Bonds.
• He learned of his wife’s affair from their children, who told him that a “Cool Pop” had his hand on her butt and said he was going to kill their daddy.
• What he told his nephew was that he needed the gun because guys were shooting around the neighborhood.
• He couldn’t recall whether he told his nephew about his wife’s affair.
• He couldn’t recall whether he told his nephew to help him lure Jones out into the country to kill him.
• He didn’t recall what Clarissa did with her clothing that night.

After this testimony, the state re-urged the dismissal of defendant’s motion to quash for lack of jurisdiction. The trial court ruled that the evidence was clear that the planning of the murder and the luring of the h ¡.victim into the van all took place in Ouachita Parish, and that Clarissa’s testimony clearly established that the infliction of these injuries all occurred in Ouachita Parish.

The defendant’s exception of lack of jurisdiction was denied.

Jessie J. Bryant

Jessie J. Bryant testified that he was the defendant’s next-door neighbor on July 8, 1999, and that he (Bryant) was often up in the middle of the night to smoke and because of noise in the neighborhood. When asked if he recalled if he saw the defendant at home on the night of the murder, Bryant did not directly answer. Neither side followed up on Bryant’s inconsequential testimony.

Eddie D. Bonds

Eddie Bonds, a longtime friend of the defendant, testified that he had been to the defendant’s house to drink with him. When asked if he did so on the night of Thursday, July 8, 1999, Bonds said he had visited the defendant one evening around that time to borrow some money, but could not put a date on it.

Clarissa Morehead

When asked about her statements to police that she had loaned money to Jones, Clarissa testified that she never lent money to anyone, and that the defendant told her to say that, as well as the fake domino game alibi. When asked why she only provided an alibi for herself and not for the defendant, she replied she didn’t remember.

_|^Clarissa accused Boatwright of lying about Clarissa leaving the home alone on July 8, 1999. She couldn’t remember how the defendant placed Jones’ body into the back of the work truck.

Mark Sutterfield

Mark Sutterfield testified on rebuttal that he was employed at the same place as the defendant, although when first asked, he could not identify the defendant. Sut-terfield testified that about a week before Jones was murdered, the defendant overheard Sutterfield talking with another coworker about a cheating spouse, whereupon the defendant told Sutterfield that if he ever found out that his wife had been cheating on him that he would kill both of the “MFs.” He testified that he told the police about this statement about two days after Jones was killed.

Debra Greely

Debra Greely testified on rebuttal that she never saw the defendant that night.

Neal Harwell

Detective Harwell testified on rebuttal that when questioned, the defendant told him he did not know Jones and that he had been home all night on July 8-9, 1999. He further testified the defendant did not tell him the following, concerning the evening of the murder:

• that Mr. Bonds came to his home;
• that Mr. Bryant was around;
• that he saw Ms. Greely while walking to the store; nor
• that his wife went out alone that night.

| uAfter deliberations, the jury found the defendant guilty of second degree murder. The defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. The trial court sentenced the defendant to life imprisonment, without benefit of probation, parole, or suspension of sentence. The court granted defendant’s pro se motion for an out-of-time appeal.

DISCUSSION

I. Sufficiency of the Evidence

La. R.S. 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or inflict great bodily harm.

Our jurisprudence concerning sufficiency of the evidence is clear.

11fiThe defendant argues that his wife’s testimony was untruthful, inconsistent, and unworthy of belief. These assertions are not supported by the evidence.

Jones was found shot to death, having been last seen getting into a van driven by the defendant’s wife, who confessed to being a part of the killing. She took the police to the original murder scene, helping to retrieve crucial evidence, and explained how the defendant lay in wait in the back of the van. At the defendant’s request, the jury examined the van with the defendant crouching in the back, for the stated purpose of determining whether or not this was possible.

The state clearly established that the gun in question was the murder weapon. The salient portions of Clarissa’s testimony was borne out by other evidence, particularly as to motive and time frame. Defendant’s nephew corroborated the history of this firearm getting into the possession of the defendant, as well as defendant’s threat against “Tupac” for having an affair with Clarissa. The state established that Jones could not be excluded as the DNA donor of the bloodstains found on the defendant’s shoes. It was Jones’ blood on the socks, found in the garbage along with the defendant’s shoes, and other household garbage identified with the defendant, found in the dumpster at the defendant’s work. Defendant’s testimony, at least the portion intended to be exculpatory, was heard, but not believed by the trier of fact. Morehead could not recall many important matters on the stand.

hsThe defendant also attempted an alibi defense, testifying that he was at home at the time of the murder. His testimony and that of these alibi witnesses did not shift the burden of proof from the state. In order to carry its burden of proof under the Jackson rationale, the state was required to negate any reasonable probability of misidentifieation. State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999); and State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

The closest to corroboration of his alibi was that of his daughter Marguita Boat-wright, who testified that Clarissa left alone in the van, returned, and then the defendant and Clarissa left together in the truck. None of his other witnesses helped whatsoever in this defense. A review of the evidence in a light most favorable to the state, shows that a reasonable jury could have found that the defendant murdered Ezekiel Jones.

II. Ineffective Assistance of Counsel

The defendant argues he received ineffective assistance of counsel in the manner in which the objection to jurisdiction was raised and the failure to note a prior conviction and allowing the introduction of other crimes evidence.

The state replies that trial counsel’s actions did not constitute ineffective assistance of counsel, but if error was made, it was harmless and would not have affected the outcome of this trial.

La. C.E. art. 609.1 provides:
|17A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense.

La. C.E. art. 404(B) provides:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of the victim’s prior threats against the accused or the accused’s state of mind as to the victim’s dangerous character is not admissible; provided that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence; and further provided that an expert’s opinion as to the effects of the prior assaultive acts on the accused’s state of mind is admissible.

11sThe defendant argues that his trial counsel’s ineffectiveness deprived him of his constitutional right to effective assistance of counsel. The law pertaining to ineffective assistance of counsel is clear.

Defendant has raised two instances of ineffective assistance of counsel.

|13A. Disposing of Jurisdiction Issue During Trial

Three days before jury selection began, the defendant’s trial counsel filed a motion objecting to the trial court having jurisdiction to hear the case, based on the fact that the physical evidence (i.e., the body), suggested that Jones was killed in Richland Parish, not Ouachita Parish, arguing that the only evidence linking the murder to Ouachita Parish was the inconsistent and untrustworthy statements of Clarissa. The trial court only became aware of the motion as the jury voir dire was beginning. By agreement, the trial court’s ruling on this motion was deferred to the merits. The trial court found the state had clearly established that the murder had occurred in Ouachita Parish, and denied the defendant’s motion.

On appeal, the defendant argues that the action of his trial counsel in not filing the motion earlier constitutes ineffective assistance of counsel.

In the present case, other counsel may have indeed filed the objection to jurisdiction well before trial. But, in this case, the record clearly indicates that the late filing may well have been part of a trial strategy by the defendant’s trial counsel. Defendant bears a difficult burden of overcoming a strong presumption that the challenged action of his trial counsel reflected sound trial strategy because “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Had the perceived jurisdictional (on account of improper venue) issue been successfully raised before trial, the trial court would have merely moved the case to Richland Parish or heard the matter with a Richland Parish jury. See, La. C. Cr. P. arts. 623 and 623.1.

_JjjBut, in this case, the defendant’s trial counsel filed the motion just before trial, then agreed to have the matter decided only after jeopardy had attached, so as to forbid a possible retrial, should this motion be successful. Likewise, even if the trial court, as it did in this case, found jurisdiction to be proper in Ouachita Parish, defendant’s trial counsel was still free to argue the same jurisdictional defect to the jury. Had the jury been convinced that this element of the crime had not been proven, it could have acquitted the defendant.

The record does not show any error on the part of the trial court in applying an incorrect burden of proof on the state. The jury was charged to find, beyond a reasonable doubt, that the offense occurred in Ouachita Parish. Because the jury was properly instructed as to the ultimate burden of proof as to all elements of the offense, any error by the trial court as to this inquiry, would be harmless.

B. Other Crimes Evidence

Defendant argues that his trial attorney erred in allowing the jury to hear of his Oklahoma manslaughter convention, causing him prejudice. La. C.E. art. 609.1(A) provides, “In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.”

Defendant’s hindsight argument confuses the law of impeachment of witnesses with prior convictions, pursuant to La. C.E. art. 609.1, with use of other crimes evidence pursuant to La. C.E. 404(B), and State v. Prieur, 277 So.2d 126 (La.1973). In the present case, the state asked the testifying 1^ defendant about prior convictions only to impeach his testimony pursuant to La. C.E. art. 609.1. The state only asked the defendant if he had a prior conviction. The defendant admitted that he did. The state did not ask any questions about the facts of the crime. Instead, the state proceeded directly into questioning the defendant as to the instant offense. There is no evidence in the record that the state asked the question about a prior conviction to show motive, intent, knowledge, identity, absence of mistake or accident.

As provided for in State v. Johnson, 664 So.2d 94 at 99 (La.1995), rehearing denied, 94-1379 (La.4/8/96), 671 So.2d 332:

In this case, the state relied upon La. C.E. art. 609.1, which allows impeachment of a witness in a criminal case by evidence of prior convictions. If a defendant chooses to testify, this provision authorizes credibility testing with evidence of prior criminal convictions. See State v. Tassin, 536 So.2d 402 (La.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989); State v. Neslo, 433 So.2d 73 (La.1983) (both decided under former LSA-R.S. 15:495). Evidence regarding previous arrests, indictments, prosecutions or other criminal proceedings not resulting in convictions is prohibited.

A trial court’s ruling on the admissibility of other crimes will not be overturned absent an abuse of discretion. State v. Blackwell, 30,281 (La.App.2d Cir.11/10/97), 701 So.2d 1389, writ denied 97-3073 (La.2/13/98), 709 So.2d 755.

The Louisiana Supreme Court in State v. Johnson, supra, also applied the harmless error analysis to claims of improper use of prior convictions. Under Strickland, supra, an ineffective assistance of counsel claim is also subject ,to a harmless error analysis.

| ¡.¡.There is no evidence that defendant’s trial counsel was ineffective on this issue. It appears from the discussions on this subject that the defendant may not have been entirely forthcoming with his record. It also appears that the defendant’s trial counsel was initially concerned with the manslaughter conviction being used as other crimes evidence pursuant to La. C.E. art. 404(B). The trial court’s ruling was very clear that all procedural requirements would have to be met if that were the case.

But, even had defendant’s trial counsel committed error, it does not appear that the error was so serious as to deprive the defendant of a fair trial, ie., a trial whose result is reliable. Strickland, supra, at 2064. Because the defendant chose to testify, he could be impeached regarding any prior convictions. The testimony was limited to only his admitting to a prior conviction. There is no indication that the admission of this prior conviction years earlier had any bearing on the jury’s decision. Furthermore, to prevent this line of questioning, the defendant’s only option would have been not to testify. In light of the overwhelming evidence against him, there is no indication that the outcome would have been different had the defendant not chosen to testify.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . During the trial, several witnesses referred to Jones as "Zeke,” "Cool Pack," "Cool Pop,” "Charmane,” and "Tupac.” In this opinion, he will be referred to as "Jones.”

      . There is some confusion as to whether she saw Ms. Greely on the first or second trip to the vicinity of the Hyde Food Store.

      . The suspicious stain turned out to be from a Coke that had been spewed onto the glass, leaving a brown syrupy film. No blood evidence was found in the van.

      . The gun was found at that location about a month later, after the water had receded. The gun's grips were held together by black tape.

      . The victim’s clothing was contained in an evidence bag received back from the pathologist from Jackson, Mississippi, while the clothing found at the defendant’s employment was contained in a separate evidence bag stored in a different place.

      . At the conclusion of this testimony, the defendant stipulated that the RG revolver in evidence fired the bullets that killed Jones.

      . An allele is one of two alternative forms of a gene having the same place on homologous chromosomes.

      . The trial court had previously ruled outside the presence of the jury that this statement was a "classic declaration against interest" and would be admissible.

      . 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. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347,
        writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La. 11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

      . Appellate courts have generally held that as a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,-581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. But, in this case, the defendant argues that there is sufficient record to determine whether his trial counsel was ineffective.
      When the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673; State v. Smith, 25841 (La.App.2d Cir.2/23/94), 632 So.2d 887.
      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment.
      The relevant inquiry is whether counsel's representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. Roland, supra; Moore, supra.

      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra, at 2064. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.
      A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusoiy charges will not suffice. Strickland v. Washington, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.


source: Caselaw Access Project

author: | .MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Marquette WALKER, Appellant.
    No. 38,254-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Indigent Defender Board by Kurt J. Goins, Louisiana Appellate Project by Kenota Pulliam Johnson, for Appellant.
    Paul J. Carmouche, District Attorney, Ross S. Owen, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   | .MOORE, J.

Marquette Walker appeals his conviction of second degree murder and sentence of life in prison at hard labor without benefits. By three assignments of error he contends the evidence is insufficient to support the conviction and that the mandatory sentence is excessive. We affirm.

Factual Background

On the evening of October 16, 2001, a motorist noticed a body lying on the side of San Jacinto Street in Shreveport’s Wer-ner Park neighborhood. She called 911; paramedics discovered the victim, a white male in his late 20s, with a gunshot wound to the left side of his face. The victim was taken to LSU Health Sciences Center, where he was declared dead at 10:32 p.m. He was identified as 29-year-old Bryan Smith; police learned that he had been hired for the day at the Louisiana State Fair, and surmised that he was walking home from the Fairgrounds when somebody tried to rob him. Police recovered a .380 caliber cartridge case from the scene on San Jacinto.

Shortly after the shooting, police received a phone call from a Mrs. Smith on Woodford Street, several blocks from San Jacinto. Mrs. Smith reported that two men had just run through her yard. From Mrs. Smith’s teenage daughter, Natasha, Detective Rodney Demery learned that one of the men was Michael Wyatt and the other was the defendant, Marquette Walker (known on the street as “Pooh”), who lived on Quinton Street. Natasha testified that Wyatt was a white boy and Walker was black; Walker was carrying a gun and saying to Wyatt that he “shot the b íjí ^ if; »

Detective Demery interviewed Wyatt, age 15, who confirmed that the man with him the night before was Walker. Wyatt testified that on the ^afternoon of the shooting, he and Walker were at the house of a friend (referred to only as “Pig”) on Regent Street, drinking beer and smoking marijuana. Walker had said he was “broke and needed some money” and had to “hit a lick,” which Wyatt explained as robbing somebody. When Wyatt went to leave, Walker said he would walk with him, but they first stopped at Walker’s house, where Walker went in. After this they walked toward Wyatt’s house. They noticed a white guy walking behind them on Fulton Street. Walker told Wyatt to turn left on San Jacinto; he did so, walked a short distance, and then heard some arguing behind him. One of the men said, “Give it up,” and then Wyatt heard a gunshot. Turning around, Wyatt saw the white man fall. Wyatt testified the victim never approached them or asked them for anything, and did not appear to be carrying any weapon.

Detective Demery next went to Walker’s address on Quinton Street. Walker’s girlfriend, Tara Ford, consented to a search. Crime scene investigators recovered a box of .380 cal. ammo from inside the house and various items from the garbage can outside. Based on these items and the witnesses’ statements, Detective Demery obtained a warrant for Walker’s arrest.

Shortly after Walker was arrested on the evening of October 20, he waived his Miranda rights and gave a recorded statement which was played |sat trial. In this statement, Walker claimed that he and Wyatt were walking down San Jacinto, Wyatt with a gun in his waistband, when Bryan and several other men approached them; Bryan brandished a knife, poked at Walker and tried to rob him; in self-defense Walker grabbed the gun from Wyatt’s waistband and shot Bryan; then he and Wyatt ran off in different directions. Because this account was inconsistent with the physical evidence and the other witnesses’ statements, Detective Demery took another statement from Walker on October 23.

In the second statement, which was also played for the jury, Walker initially maintained that Bryan had been the assailant, pulling a knife and trying to rob him, and that Wyatt had supplied the gun. After intense questioning, however, Walker emotionally admitted that he had gotten the gun from his little brother or cousin; Bryan had been walking behind them; he made up the story that Bryan was trying to rob them; Bryan was not wielding a knife; and after the shooting, he and Wyatt ran off together. He still denied taking anything from Bryan, but admitted that after the shooting, he threw the gun in a storm drain on West 77th Street.

Later that night, officers recovered a Hi-Point .380 semi-automatic handgun from a storm drain on the corner of West 77th and Wallace Streets. Richard Beigh-ley, an expert in firearms identification and comparison, examined the gun and fired reference shots from it. He concluded that the bullet extracted from the victim’s skull, and the shell casing found at the scene of the crime on San Jacinto, were both fired from the gun that officers Lfished from the storm drain on West 77th.

Dr. George McCormick, the Caddo Parish coroner, testified that Bryan died from a gunshot wound that entered the left side of his face and cut his brain stem. Dr. McCormick also found stippling, or small red dots, around the wound, indicating that the gun was fired at close range; Mr. Beighley estimated less than two feet away. Autopsy photos admitted in evidence confirm the presence of red stippling. The autopsy report also disclosed that Bryan was missing his right foot and wearing a prosthetic lower leg.

As noted, the jury found Walker guilty as charged of second degree murder. The district court imposed the mandatory sentence of life in prison without benefit of parole, probation or suspension of sentence. Walker now appeals.

Discussion: Sufficiency of Evidence

By his first assignment of error, Walker urges the evidence is not constitutionally sufficient to support the verdict of second degree murder. He contends that the state’s case hinged entirely on the testimony of Michael Wyatt, who was not trustworthy. He also argues that the state failed to prove either specific intent to kill the victim, or that a robbery or attempted robbery occurred. Finally, he suggests that the killing was in self-defense.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a | ¡^reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now codified.in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The Jackson standard applies both to direct and circumstantial evidence. State v. Marcantel, 2000-1629 (La.4/3/02), 815 So.2d 50. The supreme court recently summarized the role of credibility in appellate review for sufficiency in State v. Davis, 2002-1043 (La.6/27/03), 848 So.2d 557:

[T]he task of an appellate court reviewing the sufficiency of the evidence is not to second-guess the credibility choices of the trier of fact “beyond * * * sufficiency evaluations under the Jackson standard of review.” State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). A victim’s or eyewitness’s testimony alone is therefore usually sufficient to support a verdict. State v. Bright, 98-0398, p. 24 (La.4/11/00), 776 So.2d 1134, 1148 [additional citations omitted ].

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27; State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Second degree murder is the killing of a human being (1) when the | (¡offender has a specific intent to kill or to inflict great bodily harm, or (2) when the offender is engaged in the perpetration or attempted perpetration of, inter alia, armed robbery or simple robbery, even though he has no intent to kill or inflict great bodily harm. La. R.S. 14:30.1 A. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Brooks, 36,855 (La.App. 2 Cir. 3/5/03), 839 So.2d 1075, writ denied, 2003-0974 (La.11/7/03), 857 So.2d 517.

Walker contends that the jury could not have accepted Wyatt’s account of the incident because Wyatt “has a problem with the truth.” Walker submits that Wyatt was a principal to the offense, as he was with Walker when the shooting occurred and was interrogated in custody, yet he was never charged with any crime. Walker argues that these factors make Wyatt’s account suspect. Even if the jury took Wyatt’s testimony at face value, Walker contends that Wyatt did not actually see him shoot or rob Bryan, thus making the case purely circumstantial.

On this record, we find no basis to set aside the jury’s rational credibility call. State v. Robertson, supra. The jury heard tape recordings of Walker’s two statements to Detective Demery. After first maintaining the shooting was a defensive act in response to a robbery at knifepoint, Walker ultimately admitted Bryan had no knife and did not attempt to rob him. He admitted telling Wyatt they had to “make up the story of him trying to rob us.” Walker even retracted his earlier claim that Wyatt was carrying |7the gun. By contrast, Wyatt’s account of Walker’s statements — before, during and after the crime — are consistent with the physical evidence; his testimony that they fled the scene together was corroborated by Mrs. Smith and her daughter Natasha. On this evidence the jury could reasonably reject Walker’s exculpatory claims and accept Wyatt’s consistent account of the crime. State v. Davis, 25,183 (La.App. 2 Cir. 10/27/93), 626 So.2d 800, writ denied, 93-2945 (La.2/25/94), 632 So.2d 762.

Walker further argues the state failed to prove he robbed or attempted to rob Bryan, thus defeating an essential of second degree murder. In support he shows that Wyatt did not personally observe any robbery, and the coroner testified that Bryan still had a necklace, watch and other valuables on his person at the autopsy.

Nonetheless, Dr. McCormick found, and the autopsy photos confirm, stippling near the gunshot wound. Mr. Beighley testified that the gun must have been within two feet of Bryan’s head. Aiming a gun at the victim’s face and firing it at close range are facts from which the jury could find specific intent to kill or inflict great bodily harm. State v. Seals, supra; State v. Brooks, supra. This satisfies the specific intent element of second degree murder.

Viewed in the light most favorable to the state, the evidence is sufficient to show, beyond a reasonable doubt, that Walker killed Bryan Smith with the specific intent to kill or inflict great bodily harm. Walker’s first assignment of error lacks merit.

| ¡^Excessive Sentence

By his second and third assignments, Walker urges the district court imposed an excessive sentence in violation of La. Const, art. 1, § 20. He argues that the court failed to particularize the sentence to fit both the offense and offender. State v. Jones, 398 So.2d 1049 (La.1981); State v. Robicheaux, 412 So.2d 1313 (La.1982). He concedes that the statute of conviction, R.S. 14:30.1 B, mandates life in prison without benefits, but urges that even a sentence within statutory limits must yield to constitutional considerations. State v. Sepulvado, 367 So.2d 762 (La. 1979); State v. Dorthey, 623 So.2d 1276 (La.1993).

Walker did not file a motion to reconsider sentence; thus he is relegated to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Winn, 37,-165 (La.App. 2 Cir. 5/14/03), 847 So.2d 68. Constitutional review turns on whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Warfield, 37,616 (La.App. 2 Cir. 10/29/03), 859 So.2d 307.

The district court did not state any reasons for imposing the mandatory sentence, and was not required to do so. State v. Koon, 31,177 (La.App. 2 Cir. 2/24/99), 730 So.2d at 504; State v. Rose, 606 So.2d 845 (La.App. 2 Cir.1992). Walker has adduced no facts to warrant a departure from the mandatory life sentence. The facts instead show that Walker shot Bryan in the face at close range, soon after saying he needed to “hit a lick.” He implausibly accused the victim, a partially disabled man, of trying to rob |ahim at knifepoint. He tried to dispose of the weapon by throwing it down a gutter. On these facts, the mandatory sentence of life at hard labor without benefits does not shock our sense of justice. These assignments lack merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). For the reasons expressed, Marquette Walker’s conviction and sentence are affirmed.

AFFIRMED.

      . These items included three empty Frito-Lay corn chips bags and two 24-ounce Budweiser beer cans. A police report filed in discovery stated that shortly before the shooting, Bryan had stopped at a convenience store near the Fairgrounds and bought two bags of Frito-Lay corn chips and two 24-ounce cans of Budweiser. However, fingerprints lifted from the items seized from the garbage can could not be linked to Walker, and evidence concerning the convenience store purchases was not introduced at trial.

      . Although both statements were recorded and played at trial, they were not transcribed into the official record.


author: I, STEWART, J.

text:
    STATE of Louisiana, Appellee, v. James Craig BENNETT, Appellant.
    No. 38,246-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Louisiana Appellate Project by Kenota P. Johnson, for Appellant.
    James Craig Bennett, Pro se.
    Paul J. Carmouehe, District Attorney, J. Thomas Butler, Shenequa L. Grey, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   I, STEWART, J.

James Craig Bennett (“Bennett”) appeals his conviction of driving while intoxicated, fourth offense. He was sentenced to ten years at hard labor, all but 60 days suspended and Bennett was placed on 5 years active probation and 5 years of home incarceration to run concurrent with the probation. We note that this appeal is one of two DWI convictions of the same defendant pending in this court. The other is State v. James Craig Bennett, # 38,247-KA. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

The facts are straightforward and not in dispute. At approximately 4:00 a.m. on September 16, 2000, a deputy sheriff observed Bennett’s car weaving and crossing the fog line. When the defendant was pulled over, the deputy smelled alcohol on his breath. Bennett failed his field sobriety test, and his breath tested out at .152% BAC.

In brief to this court, Bennett acknowledges arrest records show this was his sixth DWI. The original bill of information alleged the defendant to have four prior DWI convictions. An amended bill of information alleged three prior DWI convictions, to wit:

1) July 8, 1993 conviction in the First JDC, Docket # 161236
2) July 8, 1993 conviction in the First JDC, Docket # 163237
3) June 18, 1993 conviction in the 26th JDC, Docket # T-31493.

A unanimous jury found the defendant guilty of DWI, fourth offense. The defendant filed a motion for new trial, and a motion for a post-judgment verdict of acquittal, both alleging in part that the state had failed to prove that the defendant had three prior convictions. The trial court denied the ^motions, and sentenced the defendant to 10 years at hard labor, of which all but 60 days was suspended, and the 60 days was to be without benefit of probation, parole, or suspension of sentence. The defendant was ordered to serve 5 years on home incarceration in lieu of imprisonment. The defendant was also placed on 5 years active probation, which included special conditions, such as a substance abuse treatment program. On appeal, the defendant does not challenge this sentence as excessive.

The defendant was also found guilty of DWI Fourth offense in # 38,247-KA. The defendant appealed both convictions. The cases were not consolidated for trial, and have not been consolidated for appeal. In both appeals the defendant’s appellate counsel has filed Benjamin briefs, and motions to withdraw, alleging she has found no non-frivolous issues to raise on appeal.

However, the defendant has filed a pro se brief, alleging several errors. First, the defendant asserts that the bill of information in one of his earlier DWI convictions, incorrectly alleges an offense date of January 16, 1992, instead of January 16, 1993. However, the defendant does not dispute that he was convicted of DWI on July 8, 1993, as is alleged in the bill of information in this case. The defendant has failed to show how an error as to a date in a bill of information in a prior conviction would have any impact on the present bill of information. La. R.S. 14:98 provides for enhanced penalties for convictions, not arrests. An incorrect date as to arrest for DWI does not invalidate the bill of information. The date of arrest |3is not essential and could have been amended at any time. La.C.Cr.P. arts. 468 and 487; State v. Hernandez, 410 So.2d 1381 (La.1982). As a result, this claim is without merit.

The defendant also argues that two of his DWI offenses occurred before June 21, 1993, when amendments to La. R.S. 14:98(F)(2) went into effect, increasing the cleansing period of DWI convictions from five years to ten years. The defendant argues that at the time of the offenses, the 1993 convictions were limited to a five-year cleansing period, and the use of them to enhance the present 2000 DWI charge constitutes the ex post facto application of the law in violation of the state and federal constitutions. Nonetheless, the defendant fails to note that this court has previously held that the use of the 1993 increase of the “cleansing period” of DWI convictions from five years to ten years in earlier convictions, does not constitute an ex post facto application of the law. State v. Hall, 648 So.2d 1 (La.App. 2d Cir.1994), writ denied, 664 So.2d 406, 1995-0166 (La.11/29/95). Therefore, this claim is without merit.

The defendant also makes vague, general claims as to ineffective assistance of counsel, without providing any specific facts forming the basis of those claims. Assignments of error which are neither briefed nor argued are considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir. 1989), writ denied, 558 So.2d 1123 (La.1990).

CONCLUSION

The bill of information and arraignment were properly done. The defendant was convicted by a proper jury verdict. The defendant was properly sentenced pursuant to the applicable statute. The defendant’s appellate counsel’s motion to withdraw is granted. Consequently, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990).


author: h STEWART, J.

text:
    STATE of Louisiana, in the Interest of K.L., Plaintiff-Appellee v. Harold LEEDS, Defendant-Appellant.
    No. 38,245-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Sutton & Sutton by Bobby D. Sutton, Sr., Shreveport, for Defendant Appellant Harold Leeds.
    Paul J. Carmouche, District Attorney, Glen Mangham, Assistant District Attorney, for Plaintiff Appellee State of Louisiana, DOSS.
    Michelle Dufour Brown, for Plaintiff Ap-pellee K.L.
    J. Brad Smitherman, for Defendant Ap-pellee Karen Trice.
    Before WILLIAMS, STEWART and CARAWAY, J J.
   h STEWART, J.

In this child in need of care proceeding, Harold Leeds (“Leeds”), the father of the minor child K.L., appeals the trial court’s award of child support. For the reasons expressed herein, we affirm the judgment in part, amend it in part, and remand it to the trial court for hearings consistent with this opinion.

FACTS

On April 28, 2003, the trial court granted judgment awarding custody of the minor child, K.L., to her mother, Karen Trice (“Trice”). The trial court then ordered Leeds to appear and show cause why he should not be ordered to pay child support. On June 11, 2003, the scheduled hearing on child support was continued due to the failure and/or refusal of Trice to produce the financial information required by the court’s order. Prior to the July 16, 2003, trial, Trice again failed to produce the financial information required by the court’s order. Despite Trice’s failure to produce the financial records, the court elected to proceed with the child support hearing.

During the trial, Trice testified that her gross monthly wages were $900.00. Leeds produced his federal and state tax returns for the years 1999 through 2001. Those documents reflected a monthly income of an average of $954.00. In addition, Leeds testified that the potential income he could receive from real estate inherited from his mother was $500.00. In addition to that figure, Leeds testified that he received approximately $150.00 a month in interest and dividends from money inherited from his mother.

[{/Following the trial, the court found that Trice willfully failed to follow its order to produce her financial income information in a timely manner, and held her in contempt. She was given a 90 days suspended sentence in the Caddo Correctional Center subject to her compliance with the court’s order. Next, based on a cumulative income of $2852.14, the court ordered Leeds to pay Trice $302.52 per month as child support for the care and support of K.L. The court also ordered Leeds to maintain medical and dental insurance for the minor child. This appeal ensued.

DISCUSSION

Child Support Calculations

Leeds contends that the trial court erred in fixing child support when Trice willfully and contemptuously withheld any verification of her financial information from the court. We agree.

The Child Support Guidelines (“guidelines”), La. R.S. 9:315, et seq, are the framework within which the obligation of child support must be administered. They seek to fairly apportion financial responsibility between the parents for their children. Toward these ends, the Guidelines balance the needs of children with the means available to the parents. James v. James, 34,567 (La.App.2d Cir.4/6/01), 785 So.2d 193; State in Interest of Travers v. Travers, 28,022 (La.App.2d Cir.12/6/95), 665 So.2d 625.

La. R.S. 9:315.2 reads in pertinent part:
A. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party, |,^provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
C. The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.

It is clear that La. R.S. 9:315.2(A) requires that each party to a proceeding fixing child support provide a “verified income statement showing gross income and adjusted gross income.” See also Ventura v. Rubio, 785 So.2d 880 (La.App. 4th Cir.2001); Inzinna v. Acosta, 623 So.2d 1357 (La.App. 5 Cir.1993); Crefasi v. Crefasi, 628 So.2d 1274 (La.App. 3d Cir.1993).

We find that the trial court erred in calculating Leeds’ income. His yearly income was determined by the court was determined to be $12,625.68 based on monthly income of $1,052.14. The judge also added rental income of $500.00 per month subject to a $100.00 credit for repairs. However, the judge then added miscellaneous income of $500.00 a month giving Leeds a total monthly income of $1952.14. We find no basis for the $500.00 addition; therefore, we reverse that portion of the judgment and fix Leeds’ monthly income at $1452.14.

Leeds also contests the trial court’s addition of potential rental income of $400.00 for a property in Anderson Island that Leeds had inherited which had been vacant for approximately a year before the instant rule. The trial court added the potential income from the property after | concluding that Leeds was allowing the asset to “sit idle.” The record reveals that Leeds enjoyed rental income of $500.00 from the property in 2001. It is certainly reasonable for the trial court to conclude that Leeds should receive some income from the property.

Our review of the record further reveals that, because of the lack of documentation provided by Trice, the trial court could not have accurately applied the guidelines to determine child support. An application of the guidelines to calculate the basic child support obligation necessitates accurate information from both Leeds and Trice. Moreover, the scant information provided by Trice is not particularly reliable in determining her income. The single pay stub submitted by Trice is useless to verify her monthly income for the following reasons: it only shows wages based on 8.25 hours of work; the stub reflects only “reported tips;” the stub does not reflect the date upon which wages first began; and the stub is from an employer for whom she is no longer employed. Nonetheless, we will maintain the trial court’s assignment of $900.00 a month income to Trice for an order of child support, but we remand the case to the trial court for further hearings to determine Trice’s income.

The purpose of child support is to secure the maximum amount of support for the child. Thus, in the interests of K.L., we accept the court’s calculation of Leeds’ income of $1452.14. We also accept the court’s determination of Trice’s monthly income of $900. As a result, the cumulative income of the parties is $2352.14, requiring total child support in the amount of $380.00. Leeds’ share of that obligation is $234.60. ^Consequently, we fix his support obligation accordingly, and remand this matter to the trial court for Leeds to show that Trice’s income is greater than $900.

Lastly, Leeds contends that the trial court abused its discretion in ordering him to provide dental and medical insurance for K.L. when there was no evidence presented or inquiry made as to the availability and cost of said coverage. We disagree. Although the court erred in its calculation of Leeds’ resources, we find no abuse of discretion in the court’s judgment given the evidence in the record of Leeds’ income, resources, and employment history.

CONCLUSION

We find that the trial court erred by fixing child support without requiring the proper documentation verifying Trice’s income, and in assigning $500.00 in miscellaneous income to Leeds. Consequently, we amend the trial court’s order of child support and order Leeds to pay child support in the amount of $234.60 per month effective five days from the date that this judgment is made final. We also remand this matter to the trial court to allow Trice to provide documentation of her income. The portion of the judgment requiring Leeds to pay for medical and dental insurance to K.L. is affirmed.

AFFIRMED IN PART. AMENDED IN PART AND REMANDED.


author: h GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Carlton STOCKMAN, Appellant.
    No. 38,199-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Michael E. Kramer, Winnsboro, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, Johnny R. Boothe, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   h GASKINS, J.

The defendant, Carlton Stockman, was initially charged with one count each of possession of marijuana with intent to distribute and conspiracy to distribute marijuana, the former being a violation of La. R.S. 40:966 punishable by imprisonment at hard labor for not less than five nor more than 30 years plus a fine of not more than $50,000. The parties entered into a plea bargain under which the state agreed to dismiss the conspiracy charge. The court sentenced the defendant to serve 10 years at hard labor and denied a timely motion for reconsideration of sentence. The defendant now appeals the sentence as excessive. We affirm.

In August 2001, the defendant contacted an individual in Franklin Parish and expressed a desire to purchase a large quantity of marijuana. The putative seller, who was a confidential informant (Cl), arranged to transfer three pounds of the marijuana to the defendant at a Winnsboro motel. The defendant bargained with the Cl over the price and then took delivery for $600 per pound. The police, who had monitored and videotaped the transaction, arrested the defendant at that time. The North Louisiana Criminalistics Laboratory confirmed the identity of the contraband as marijuana.

Prior to imposing sentence, the court reviewed a PSI report and considered the facts of the case. The court noted that the defendant had told the police he wanted more than three pounds and that he intended to sell the marijuana. At the time of the instant offense, he was on felony supervision from Texas for a conviction of possession of more than five pounds of marijuana. Law enforcement officials from two parishes told the court that 12the defendant had been distributing methamphetamine and marijuana for an extended period of time. The court considered the defendant’s social history, including his marriages and his adult children, and his employment record. The court also noted that the defendant had a lengthy criminal history, consisting mostly of drug offenses. The court found that a lesser sentence would deprecate the seriousness of the offense and that the defendant was in need of custodial treatment.

On this record, we do not find constitutional error. The sentence imposed is lawful, being within the lower third of the sentencing range available to the court. The sentence is not grossly disproportionate to the severity of the offense or shocking to the sense of justice considering the defendant’s history and the facts of the case. Although he was 65 years old at the time of the instant offense, he had prior felony drug convictions which negate appellate defense counsel’s claim that he is unlikely to be a repeat offender. The PSI report informed the court about the defendant’s social history, his education, and his work record. There is no showing of an abuse of the trial court’s discretion in the imposition of this sentence which, under the circumstances, is not constitutionally excessive.

The conviction and sentence are affirmed.

AFFIRMED.

      . Past records of drug offenses weigh heavily in the decision to uphold the imposition of even maximum sentences. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.


text:
    STATE of Louisiana, Appellee, v. Shaheed Najeeullah ASAD, Appellant.
    Nos. 38,040-KA, 38,499-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Louisiana Appellate Project by James E. Beal, Mulhearn & Smith by Leroy Smith, Jr., Tallulah, for Appellant.
    James D. Caldwell, District Attorney, Linda Kincaid Watson, Anita Tennant-Mack, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   h STEWART, J.

Shaheed Najeeullah Asad (“Asad”) appeals his convictions of one count of armed robbery and one count of theft and consecutive sentences of 10 years at hard labor for the theft charge and 50 years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery conviction. For the reasons expressed herein, we affirm the defendant’s convictions and sentences.

FACTS

On April 26, 2001, the Madison Parish Sheriffs department received a call that there had been an armed robbery at the Delta Diamond Casino. The casino was located in the Chevron facility in the town of Delta. Authorities responded and spoke with the cashier, Patricia Guy. During that interview she told them that two black males had entered the casino wearing bandanna-like coverings on their faces and carrying guns. She said that she and a male customer, Henry Hazelrigg, were in the casino when the two armed men arrived. She told the authorities that one of the men told the customer to get down on the floor and that he used duct tape to secure the man’s hands. She said the other one hit her on the head and made her open a door to the room where money was kept. She said they left with $7,522.

The authorities interviewed Hazelrigg who told them that he was playing video poker when someone put him on the floor while holding a gun to the back of his head. He said the gunman told him he would “bust a cap” in him. The customer said that the gunman took his wallet which had approximately $2,200 in cash in it. He said the gunman then used duct tape |?to tie his hands behind his back. Hazelrigg also indicated that there were two men involved in the robbery.

The officers found and took the used duct tape and the video surveillance tape as evidence.

The investigation led the authorities to Shelton Wilson and Otis Guy. They implicated themselves, Asad, and the above-named employee, Patricia Guy. The investigation showed that she acted as an inside person who arranged the robbery with her brother, Asad. Otis Guy, her 18-year-old son, stayed in the vehicle outside the casino as a look out during the robbery. Wilson was also a teenager. Asad was 42 years old at the time of the robbery. While investigating unrelated drug allegations against Asad, a bandanna, .22 shells and a roll of duct tape were found in his residence and vehicle.

Everyone else involved but Asad entered guilty pleas to first degree robbery. All three testified against Asad in exchange for shorter sentences. Following a trial, Asad was found guilty of both the theft of money from the casino and armed robbery of Hazelrigg on November 22, 2002. He was sentenced on April 16, 2003, to 50 years at hard labor without benefit of probation, parole or suspension of sentence for the armed robbery conviction and to 10 years for the theft conviction. The sentences were ordered to be served consecutively. This appeal ensued.

^DISCUSSION

Statements of Co-conspirators

Asad argues that the state failed to provide him with a statement made by a co-conspirator, his sister Patricia Guy, and thus violated its duty to disclose exculpatory statements made by him.

The state argues that the witness tried to protect herself and her brother by changing her story several times. Its position is that whatever the state had up until the trial was provided to the defendant and that Guy changed her testimony while on the stand. The state further argues that even if there is a discovery violation, it is harmless in that Asad has failed to show that the error prejudiced him.

The state concedes that it had a continuing duty to disclose to the defendant any statements made by a co-conspirator prior to the trial. The statement in question is that Asad told his sister the day after the robbery that his co-conspirator had taken Hazelrigg’s wallet. Asad asserts that this information was not supplied to him by the state and that it hindered him in putting forth his defense that he had not been aware the patron had been robbed during the incident.

However, the review of the entire passage of Guy’s testimony shows that she had not divulged this information to the state and that therefore the state had not failed to disclose it to the defendant. Moreover, there was other testimony that supports the position that the robbery of the patron was part of the plan. Only moments earlier, Guy testified that she knew they were going to rob the patron and that it was part of the plan. As a result, |4we find that this assignment lacks merit since the appellant failed to prove that there was a discovery violation that prejudiced him.

Jury Instructions

Asad argues that the state’s case was buttressed when the trial court read special jury instructions a second time when the jury had only requested to be instructed on the definition of principal. The state asserts that a re-reading of the jury instructions is allowed by La. C. Cr. P. art. 808.

The statute governing what a trial judge is to do when the jury requests further instruction is found in La. C. Cr. P. art 808. It reads:

If the jury or any member thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. The further charge may be verbal, but shall be in writing if requested by any juror. No charge shall be reduced to writing at the request of a juror pursuant to this Article unless consent is obtained from both the defendant and the state in open court but not within the presence of the jury. The lack of consent by either the defendant or the state shall not be communicated to the jury. A copy of the court’s written charge shall be delivered to the defendant, the state, and the jury.

The record shows that the jury made the following request:

Could you read the definition of principal and first-degree robbery one more time, please?

The trial court then re-read the passages concerning these two issues. The re-reading tracks what was contained in the original charges to the panel. After he read part of the instructions again and the jury had returned to deliberate, Asad’s trial counsel objected on the grounds that the portion about the weapon was “eviden-tiary.” The trial court replied that he had read |Bthe special charges because they were included in the same paragraph with the portion on principal and he “felt like it was relevant.”

Asad argues that the trial court violated La. C. Cr. P. art. 772 which states:

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved or refuted.

It is clear that the controlling article is La. C. Cr. P. art. 808 and that under the well-established case law it was not an error for the judge to repeat a charge that had already been given to the jury. State v. Watts, 171 La. 618, 131 So. 729, (La.1930), held that when the jury returned into court and requested to be recharged, it was not error to repeat the court’s charge in whole. This assignment is without merit.

Excessive Sentence

Asad argues that the 10-year sentence for theft to be served consecutively to the 50-year sentence for armed robbery is disproportionate and serves no useful purpose. He further alleges that the court gave no reasons for running the sentences consecutively since the convictions are the result of one continuous action. He asks this court to review the mitigating circumstances and remand for the imposition of a sentence particularized to this offender and this offense.

The state responds that the court adequately considered the guidelines of La. C. Cr. P. art. 894.1 and that a consecutive sentence is not excessive nor was there manifest abuse of the trial court’s discretion.

| fiWhen a defendant fails to file a La.C.Cr.P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence

is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Raev, 36,847 (La.App.2d Cir.3/5/03), 839 So.2d 1015, writ denied 2003-0988 (La.10/10/03) 855 So.2d 330; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

Constitutional review considers whether the sentence imposed is too severe in light of the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a reviewing court will not set aside a sentence as excessive. State v. Caraway, 28,769 (La.App.2d Cir.10/30/96), 682 So.2d 856.

La. C. Cr. P. art. 881.1 applies to a defendant’s sentence. This article precludes the defendant from presenting arguments to the court of appeal |7which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. Mims, supra; Duncan, supra.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. The record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993).

The following statutes apply to the Asad’s sentences:

La. R.S. 14:64—Armed Robbery
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.
|sLa. R.S. 14:67—Theft
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

The trial court ordered a 50-year term for the armed robbery. The statutory range is 10-99 years; thus, this is not a maximum or near maximum sentence. Although the theft sentence is the maximum ten years, this assignment is without merit.

The judge meticulously outlined his findings under the sentencing guidelines. He noted that deliberate cruelty was used against both Asad’s sister, a co-conspirator, as well as the customer, an innocent bystander. He particularly noted that the evidence showed that Asad had directed his other co-conspirator Wilson to threaten the customer with a gun during the robbery. He noted that the defendant knew or should have known that this victim was an elderly man and that he did not take this point into consideration. Further, the judge specifically noted that Asad was a fourth felony offender and that this was his second conviction for armed robbery. He further found that the Asad was the mastermind of the crime. He found no mitigating circumstances except that no one was injured. The trial court rejected the defendant’s claim that he did not know Wilson had a gun until they started to go inside the casino.

While the aggregate of this sentence has the effect of keeping Asad incarcerated for most of his life, it does not shock one’s sense of justice. One of the victims was elderly. A gun was held to his head, and he was put |ato the ground and tied up. Asad roughed up the other victim/accomplice, his own sister.

Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675.

Among the factors to be considered are the defendant’s criminal history, State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.), writ denied, 496 So.2d 355 (1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.), writ denied, 435 So.2d 433 (1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); defendant’s apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La. App. 4th Cir.1987); the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983), State v. Lighten, 516 So.2d 1266 (LaApp. 2d Cir.1987); and whether defendant has received a benefit from a plea bargain, State v. Jett, supra, State v. Adams, supra.

When consecutive sentences are imposed, the court shall state the factors considered and reasons for the consecutive terms. State v. Green, 614 So.2d 758 (La.App. 2d Cir.1993). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2d Cir.1992); State v. Thompson, 543 So.2d 1077 (LaApp. 2d Cir.), writ denied, 551 So.2d 1335 (1989).

Thus, the appellant is correct in raising as error the fact that the judge failed to reference La. C. Cr. P. art. 883 and did not articulate his reasons. However, this court views this as harmless error since the record supports the judge’s decision to impose the consecutive sentences.

In State v. Jarrett, 37,928 (La.App.2d Cir.12/10/03), 862 So.2d 440, this court found:

While the trial court did not specifically state the reason for the consecutive sentences, the court discussed certain factors as set forth above which support the ruling. The rape and forced oral sex conducted at knife-point were particularly vicious. The victim was physically brutalized and mentally traumatized. Jarrett could not verbalize any reason for committing these offenses. He suffers from an impulse disorder and intentionally stopped taking medications prescribed for that disorder. He has a prior criminal record of a misdemeanor drug charge and unauthorized entry of an inhabited dwelling which was reduced by a plea agreement to a misdemeanor. All of these factors, as discussed by the trial court, support a finding that the defendant constitutes an unusual risk of danger to the public. The consecutive sentences therefore do not constitute error, and we find that the sentences are not constitutionally excessive.

Here the trial court was cognizant of Asad’s position as a fourth felony offender and his role as the leader of this crime in which he involved two younger people. The record supports the trial court’s decision to order the sentences served consecutive to each other.

^CONCLUSION

Finding no merit in the defendants assignments of error, we affirm the defendant’s convictions and sentences.

AFFIRMED.


author: I .WILLIAMS, Judge.

text:
    Jan JUMONVILLE, Plaintiff-Appellant, v. W.B. “Pete” KING, Defendant-Appellee.
    No. 38,235-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      C. Rodney Harrington, for Appellant.
    Cook, Yancey, King & Galloway by Lee H. Ayres, Shreveport, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   I .WILLIAMS, Judge.

The plaintiff, Jan Jumonville, appeals a judgment in favor of the defendant, W.B. Pete King (“King”). The district court granted King’s peremptory exception of prescription, dismissing Jumonville’s legal malpractice claim. For the following reasons, we affirm.

FACTS

In 1984, Jan Jumonville underwent breast implant surgery. In 1987, the right-side implant ruptured and was replaced. In 1991, the left-side implant ruptured and was replaced. In June 1994, Jumonville retained King, an attorney in Shreveport, to represent her in litigation against breast implant manufacturers, including 3M Corporation. King filed a petition for damages on her behalf against Surgitek, Bristol-Myers Squibb Company and Dow Corning Corporation in federal district court. In July 1994, the lawsuit was transferred to the Multi-District Litigation (“MDL”) division. In February 1995, King submitted Jumonville’s registration forms to the MDL Claims Administration Office. In August 1996, the MDL Claims Office sent Jumonville a notification of status. In July 1998, King referred his clients with breast implant cases to attorney J. Ransdell Keene, who assumed representation of Jumonville in her breast implant litigation.

On July 28, 1998, Keene mailed a letter to Jumonville informing her that “the only thing remaining that is open for you is to make a claim in the recently settled Dow Corning bankruptcy.” According to Ju-monville, she and her husband met with Keene in October 1999 and inquired about the status of her case against 3M Corporation (“3M”). Keene informed them that a lawsuit was never filed against 3M and as a result, such a claim had | ^prescribed. On October 11, 2000, the plaintiff, Jan Jumon-ville, filed a petition for damages against the defendant, King, alleging that he had committed malpractice by negligently failing to file an action against 3M regarding the failure of her silicon breast implants, thereby allowing her product liability claim to prescribe and depriving her of the opportunity to recover damages for her injuries. The defendant filed a peremptory exception of prescription and/or peremption.

Subsequently, the district court rendered judgment granting defendant’s exception of prescription and dismissing plaintiffs claims. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the district court erred in granting the defendant’s peremptory exception of prescription. Plaintiff argues that her claim did not prescribe in July 1999 because attorney Keene’s letter of July 28,1998 to the plaintiff did not provide her with knowledge of possible malpractice by defendant.

LSA-R.S. 9:5605 provides in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the | ^alleged act, omission, or neglect occurred. ... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Prescription commences to run when a claimant knew or should have known of the existence of facts that would have enabled her to state a cause of action. The standard imposed is that of a reasonable person. Griffin v. Kinberger, 507 So.2d 821 (La.1987); Turnbull v. Thensted, 99-0025 (La.App. 4th Cir.3/1/00), 757 So.2d 145. Thus, any plaintiff who is aware of facts that would place a reasonable person on notice that malpractice may have been committed shall be held subject to commencement of prescription by virtue of such knowledge. Turnbull, supra.

The district court’s factual determinations regarding peremption and prescription should not be reversed in the absence of manifest error. The issue to be decided by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable in light of the record as a whole. Turnbull, supra.

In her brief, plaintiff contends she did not learn of the defendant’s malpractice until October 1999, when Keene informed her that a lawsuit had not been filed against 3M. However, the evidence shows that plaintiff had signed the verification page of the June 1994 federal complaint filed against several defendants, but not against 3M. In addition, plaintiff testified in her deposition that she received the July 28, 1998 letter from Keene and acknowledged that she understood at the time that her only remaining option was to file a claim in the Dow bankruptcy proceeding. Although the |4plaintiff stated that she was “quite confused” about the status of her claim against 3M after receiving the letter, she .did not recall asking Keene why her only recourse was a claim against Dow or discussing her 3M claim with him at their first meeting.

The record in this case supports a finding that upon receipt of Keene’s July 1998 letter, the plaintiff knew or should have known of facts which would raise a question about the status of her claim against 3M and place her on notice that defendant may have committed malpractice. Thus, the district court could have reasonably concluded that the plaintiffs malpractice claim had prescribed when she failed to file an action for damages by July 1999. The assignment of error lacks merit.

Peremption

Relying on Lima v. Schmidt, 595 So.2d 624 (La.1992), the plaintiff argues that because there was an ongoing and continuous attorney-client relationship between her and defendant, the three-year peremptive period of LSA-R.S. 9:5605 should not have begun running until July 1998, when defendant referred her case to Keene. However, the Louisiana Supreme Court has previously considered and rejected a similar argument.

In Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, the court stated that the “continuous representation rule” is a suspension principle based on the third application of contra non valen-tem, which suspends prescription when the debtor has acted to prevent the creditor from availing herself of her cause of action. As a suspension principle based on contra non valentem, the “continuous representation rule” cannot apply to ^peremptive periods. Reeder, supra.

LSA-R.S. 9:5605 expressly provides that the three-year period of limitation is a peremptive period within the meaning of LSA-C.C. art. 3458 and in accordance with LSA-C.C. art. 3461, may not be renounced, interrupted or suspended. Reed-er, supra. Thus, contrary to the plaintiffs argument, the “continuous representation rule” cannot suspend the peremptive statute of limitations period of LSA-R.S. 9:5605.

In his deposition testimony, attorney Keene testified that the defendant referred plaintiffs implant case to him in July 1998. Keene stated that he reviewed the file and wrote the July 28, 1998 letter advising plaintiff that given the status of her case, her only option was to proceed with a claim in the Dow bankruptcy proceeding. Keene opined that defendant breached the standard of care of an attorney who accepts a breast implant case by failing to initially name 3M as a defendant in the lawsuit, by not meeting the September and October 1994 deadlines to qualify plaintiff as a “current claimant,” by not meeting the March 1, 1995 registration deadline and by not opting out of the settlement class by the October 1996 deadline. Keene testified that defendant’s failure to opt out of the settlement reduced the value of plaintiffs case by depriving her of the opportunity to individually litigate the claim for a higher recovery.

The evidence presented indicates that the defendant’s alleged negligent acts or omissions occurred from June 1994 through October 1996. Thus, pursuant to the three-year peremptive period of LSA-R.S. 9:5605, the plaintiff was required to file her legal malpractice action by October 1999. |fiHowever, plaintiff did not file her petition for damages until October 2000, four years after the last act or omission. Consequently, the district court did not err in granting the defendant’s peremptory exception of prescription. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Jan Jumonville.

AFFIRMED.