author: | ¡MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Albert WOODHEAD.
    No. 03-KA-1036.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Frank A. Brindisi, Vincent Paciera; Jr., Assistant District Attorneys, Gretna, LA, for Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   | ¡MARION F. EDWARDS, Judge.

Defendant, Albert Woodhead, appeals his conviction for second degree murder. For the following reasons, defendant’s conviction is affirmed.

On June 8, 2000, a Jefferson Parish Grand Jury returned an indictment against the defendant, Albert Woodhead, for the second degree murder of Earl Raines, in violation of LSA-R.S. 14:80.1. At arraignment, Woodhead pled not guilty, but subsequently moved for a psychological evaluation. He changed his plea to not guilty and not guilty by reason of insanity on September 7, 2000.

On June 8, 2001, Woodhead filed, a motion to introduce evidence of Raines’s dangerous . character, which the trial judge denied. On March 25; 2003, the trial judge granted the State’s motion to exclude evidence of cocaine found in Raines’s body, and the defendant proceeded to trial that day. However, Woodhead applied for supervisory review to this Court, which granted the writ application. Thereafter, the judge granted Woodhead’s motion for a mistrial.

|3On April 9, 2003, a jury of twelve persons was empaneled, and found Woodhead guilty as charged on April 11, . 2003. Woodhead subsequently filed a motion for new trial, which the trial court denied. After Woodhead waived sentencing delays, the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on May 1, 2003. Woodhead timely filed the present appeal.

At 7:30 a.m. on April 13, 2000, the Jefferson Parish Sheriffs Office received a telephone call from 'someone who reported that there was a body near Lake Pontchartrain between North Arnoult and the levee in Metairie. Sergeant Thornton, Lieutenant English, and Detective Klein went to the area. They discovered the body of a man, subsequently identified as Earl Raines, partially covered by a blue shower curtain. The victim had sustained several facial wounds, and the officers suspected a homicide. Forensic pathologist Susan Garcia described the facial wounds as four areas of blunt force trauma with one definitive lethal wound. That wound extended 4% inches across the victim’s forehead through which bone was visible. There was another laceration below the victim’s chin that Dr. Garcia said could have been lethal. The victim also sustained six sharp force - non-lethal wounds to his neck, as well as a bruise to the base of his neck. Additionally, the victim’s blood alcohol level was .29 and the presence of cocaine was detected in his body. According to Dr. Garcia, the victim had.no typical defensive injuries, such as to the hands and forearms. The victim had abrasions on his elbows and left arm that Dr. Garcia opined could be considered defensive injuries.

Later that day, a friend of Raines’s, Samuel Buchanan, called the police to let them know that Raines was last seen in Woodhead’s apartment in the early morning hours of April 13, 2000. Buchanan testified on behalf of the defense that he and Raines started bar hopping on April 12, 2000 at 10:00 in the morning. At |4some point during the day, Raines telephoned a woman named Sherree Merrett to pick him up. Raines and Buchanan met up later in the day and were together until early the next morning. According to Buchanan, Raines was asked to leave the last bar they visited because the bartender believed he was too intoxicated. Buchanan and Raines walked past Buchanan’s apartment, where Buchanan offered to allow Raines to spend the night. However, Raines declined. When they passed Raines’s sister’s house, Buchanan asked Raines if he wanted to stay there, but he said that he would show Buchanan where he wanted to stay. They walked around the corner to the apartment of the defendant, whom Buchanan had never met. Woodhead said that Raines could stay the night, and Raines asked Buchanan to get him some cigarettes. Buchanan complied, and returned with the cigarettes, which he gave to Woodhead. Buchanan asked Woodhead if everything was okay, and Woodhead replied affirmatively.

On April 14, 2000 at 12:10 a.m., the police executed a search warrant at Wood-head’s apartment. Woodhead was not inside his apartment at the time, but was in the courtyard of the complex. Sergeant Thornton and Detective Klein apprised Woodhead of the investigation and told him that his apartment was being searched pursuant to a warrant. After Sergeant Thornton advised Woodhead of his Miranda rights, he and Detective Klein transported Woodhead to the criminal investigations bureau.

At the investigations bureau, Woodhead initially told Detective Klein and Sergeant Thornton that Raines had spent the night, but was gone in the morning when he awakened. Upon further questioning, Woodhead gave a tape recorded, transcribed statement in which he claimed to have killed Raines in self-defense. According to Woodhead, he had known Raines for two weeks, and Raines had been to his apartment three times. Wood-head said that Raines vomited shortly after arriving at the apartment at 2:30 a.m., and that he, himself, cleaned it up. Thereafter, Raines fell asleep on Wood-head’s floor at the foot of the bed in the Woodhead’s studio apartment. At approximately 4:00 a.m., Woodhead heard Raines cursing, then saw Raines go into the kitchen and return with a knife. Raines allegedly charged at Woodhead with the knife, and Woodhead grabbed his baseball bat from under his bed. Woodhead struck Raines in the throat with the bat and knocked him back. Raines lunged again with the knife, and Woodhead hit him in the forehead. Raines staggered, but swung the knife again, and the Woodhead hit him in the forehead or his nose. At that point, Raines fell to the ground, but Woodhead struck him “a couple” more times to make sure he did not get back up.

Raines was bleeding profusely and Woodhead did not believe he was breathing. Woodhead said he panicked because of what had happened. He then decided to get the body out of the house. Wood-head dragged Raines’s body to his pickup truck, dumped it by the levee, and covered it with a shower curtain. When Woodhead returned, he cleaned the apartment and washed the knife. Woodhead said that the knife must have fallen underneath Raines when he went to the ground. Woodhead said he did not know what had provoked Raines.

At trial, Woodhead reiterated most of his statement; however, he added that he had wrapped his left forearm in a T-shirt to protect himself during the altercation. Further, Woodhead testified that he blocked the first swing of the knife with his left arm while swinging the bat in his right hand. Woodhead claimed he “blacked out” after striking Raines repeatedly. He acknowledged that it would be reasonable to infer, however, that he had inflicted the six wounds to Raines’s neck. Woodhead acknowledged that he had sustained no injuries during the struggle.

The search of Woodhead’s apartment revealed blood in many places, including the furniture, the television, the walls, the ceiling, and the carpet. The police also found the baseball bat and the victim’s shoes in the defendant’s truck. | fi According to Lieutenant English, there was no obvious sign of a struggle in the defendant’s apartment.

In addition to Samuel Buchanan and Woodhead’s testimony, the defense also presented the testimony of Dr. Gary McGarrity, an expert pharmacologist. According to Dr. McGarrity, the level of cocaine in the decedent’s body indicated that he had used cocaine within twelve hours of his death. Dr. McGarrity opined that the decedent would have “more of a propensity for violence” due to the presence of alcohol and cocaine in his body.

Woodhead contends that the evidence presented at trial was insufficient to support his conviction for second degree murder because the State failed to prove beyond a reasonable doubt that he did not act in self defense. The State responds that the evidence supports the jury’s decision to reject the self-defense theory.

When, as in this case, issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the appellate court first determines the sufficiency of the evidence. In reviewing the sufficiency of evidence, this Court must determine whether, viewing the evidence, direct and circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The defendant was convicted of second degree murder, which is defined in LSA-R.S. 14:30.1(A)(1) as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent need not be proven as a fact but may be inferred from the 17circumstanees and actions of the accused. Specific intent to kill or inflict great bodily harm may be inferred from the extent of the victim’s injuries.

Woodhead contends that the evidence supported a finding that the homicide was justified because he acted in self-defense. According to LSA-R.S. 14:20, a homicide is justifiable “[wjhen committed in self-defense by one who reasonably believes that he is imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” When a defendant claims self-defense, the State must prove, beyond a reasonable doubt, that the defendant did not act in self-defense. The determination of a defendant’s culpability focuses on a two-fold inquiry. First, from the facts presented, could the defendant reasonably have believed his life to be in imminent danger, and; second, was deadly force necessary to prevent the danger? While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger.

In the present case, it appears that the evidence established beyond a reasonable doubt that the defendant did not kill in self-defense. Dr. Garcia testified that the decedent sustained four blunt trauma wounds to the face. Regarding the lethal 4% inch injury, Dr. Garcia said that Raines would have been incapable of “purposeful movement” after the blow that inflicted this wound. This blow shattered the forehead and drove bone fragments into Raines’s brain. According to Dr. Garcia, such a blow would have required “significant force” to inflict. Further, Dr. Garcia stated that the blow to the decedent’s chin would have rendered him [sunconscious. Although Woodhead described two of the blows he inflicted as “little taps,” the autopsy photographs demonstrate the severity of the victim’s injuries.

Additionally, the wounds to Raines’s neck are not consistent with the defendant’s self-defense theory. Dr. Garcia testified that the wounds could not have been inflicted by Raines or sustained from Raines falling on the knife. Further, Dr. Garcia stated there were six separate injuries that could not have been made by a single motion. Three of the wounds were consistent with stab wounds and three of them were consistent with linear cuts. At trial, Woodhead acknowledged that it would be reasonable to infer that he inflicted these wounds, although he did not recall doing so.

While Woodhead claims he was not the aggressor, he sustained no injuries in the fray. Wfliile Woodhead testified that he wrapped his left arm in a T-Shirt, he never told that to the police. Woodhead never called the police to report that he had killed Raines in self-defense, nor did he preserve the knife that he claims Raines wielded. Rather, Woodhead washed the knife, destroying any evidence that Raines had held the knife as defendant claimed. He covered up his actions, disposed of the body, and he lied in his first statement when he denied any knowledge of Raines’s death. Further, there is no evidence that Woodhead attempted to retreat from the altercation.

In State v. Sprinkle, this Court held that the evidence was legally sufficient to prove that the defendant did not act in self-defense, noting that the defendant hid evidence, failed to tell anyone about the altercation in which the victim allegedly lunged at him with a knife, and lied to the police about his involvement in the 'victim’s death.

laAs in Sprinkle, we find that a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the homicide was not committed in self-defense. Accordingly, we find this assignment to be without merit.

Woodhead next contends that the trial court erred in ruling that there was no “appreciable evidence” of an overt act or hostile demonstration on the part of the victim in this case, thus prohibiting the introduction of evidence regarding the character of the victim. According to Woodhead, his version of the events was sufficient to warrant introduction of Raines’s violent character.

The record shows that Woodhead filed a pretrial motion and memorandum to introduce evidence of the decedent’s dangerous character through

police reports; arrest records or “rap sheets”; memoranda; and notes or documents of any nature of any kind, as well as witnesses of prior assaults committed by the decedent and which relate to or in any way reflect or report prior criminal acts and dangerous character of the decedent and further reflect any propensity of the decedent towards violence.

Additionally, the motion alleged that “an acquaintance” had told Woodhead that the decedent “was of a dangerous character, especially when he was intoxicated or drugged up on cocaine.” After considering memoranda from the State and the defendant, the trial court denied the motion with written reasons. This Court and the Louisiana Supreme Court denied Woodhead’s writ applications.

The State responds that these pretrial determinations were correct because the defendant’s statement, uncorroborated by other evidence, does not meet the legal standard to justify introduction of the victim’s character. In its brief, the State acknowledges that pretrial rulings of reviewing courts are not dispositive, but urges this Court to uphold its ruling. In denying the defendant’s writ application, this Court ruled:

WRIT DENIED

|inEvidence of the victim’s dangerous character, prior threats against the accused or prior bad acts is admissible at the trial of the accused only if there is “appreciable evidence” of a hostile demonstration or an overt act on the part of the victim at the time of the offense. LAC.Cr.P. art. 404; State v. Edwards, 420 So.2d 663 (La.1982). We agree with the trial court’s finding that the defendant’s testimony, alone and without corroborating physical evidence, is insufficient to show that the victim made a hostile demonstration or overt act against him. Therefore, the trial court did not abuse its discretion by denying defendant’s motion in limine. Accordingly, defendant’s writ application is denied.

The Louisiana Supreme Court has recognized that a ruling denying supervisory writs does not bar reconsidering the issue on appeal and reaching a different conclusion. In State v. Wessinger, writs were denied by the appellate court and the Louisiana Supreme Court. On appeal, the Louisiana Supreme Court noted this rule, but addressed the issue on appeal and found that there was no reason to disturb the trial court’s ruling. As in Wessinger, we do not find that the trial court’s ruling in the present case was in error.

Evidence of the decedent’s dangerous character or of his threats against the defendant may be admissible in support of a plea of self-defense, provided that the defendant first produces evidence that the decedent had made a hostile demonstration or overt act against the accused at the time of the incident. Such evidence supports a plea of self-defense because it is relevant to show that the victim was the aggressor and to show that the defendant’s apprehension of danger was reasonable.

LSA-C.E. art. 404 governs the admissibility of such evidence in pertinent part:

|n A. Character evidence generally. Evidence of a person’s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of victim, (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that 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 his dangerous character is not admissible[.]
B. Other crimes, wrongs, or acts.
(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[.]

An overt act within the meaning of article 404 is an act of the victim that manifests in the mind of a reasonable person a present intention on his part to kill or do great bodily harm. Once the defense has introduced appreciable evidence of the overt act, “the trial court cannot exercise its discretion to infringe on the fact-determination function of the jury by disbelieving this defense testimony and thus, deny the accused a defense permitted him by law.”

In State v. Jones, supra, this Court found that the defendant’s self-serving testimony, alone, was insufficient to carry his burden of showing that the victim made a hostile demonstration or committed an overt act against him. Likewise, State v. Martin concluded there was insufficient appreciable evidence of an overt act or hostile demonstration where the defendant’s testimony stood alone and it was generally in sharp conflict with other testimony and evidence.

|19In the present case, Woodhead relied on his statement and trial testimony to establish an overt act. However, none of the other evidence at trial corroborated his version of the events. Woodhead was not injured when he claimed to be fending off the assault by Raines. The police found no evidence of a struggle in the apartment, and Woodhead did not preserve the condition of the knife that he claimed the decedent used to attack him. Although blood was discovered in the serration of the knife, the quantity of blood was insufficient to determine its type and there were no fingerprints on the knife. In the reasons for judgment, the trial judge concluded that Woodhead’s statements, standing alone, do not constitute appreciable evidence of an overt act or hostile demonstration to warrant introduction of evidence of the decedent’s dangerous character. Based on the foregoing jurisprudence, we do not find the trial judge’s ruling was in error.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The review reveals no errors patent in this ease.

Accordingly, for the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.

      . State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55, citing, State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342, p. 6 (La. 10/17/00), 772 So.2d 78, 82.

      . LSA-R.S. 14:10(1).

      . State v. Graham, 420 So.2d 1126, 1127 (La.1982).

      . State v. Daniels, 01-545, p. 8 (La.App. 5 Cir. 11/27/01), 803 So.2d 157, 162, writ denied, 02-215 (La. 11/27/02), 831 So.2d 272.

      . State v. Baldwin, 96-1660, p. 4 (La. 12/12/97), 705 So.2d 1076, 1078, cert. denied, 525 U.S. 831, 119 S.Ct. 84, 142 L.Ed.2d 66, (1998); State v. Rader, 609 So.2d 857, 861 (La.App. 5 Cir. 1992).

      . State v. T.N., 94-669, p. 2 (La.App. 5 Cir. 1/18/95), 650 So.2d 288, 289-290.

      . Id.

      . 01-137, pp. 17-18 (La.App. 5 Cir. 10/17/01), 801 So.2d 1131, 1142-1143, writ denied, 01-3062 (La.10/25/02), 827 So.2d 1174, cert. denied, 537 U.S. 1235, 123 S.Ct. 1358, 155 L.Ed.2d 200 (2003),

      . State v. Woodhead, 02-K-365 (La.App. 5 Cir. 5/7/02), unpublished, JJ McManus, Daley, Rothschild. The Louisiana Supreme Court denied writs in State v. Woodhead, 02-1378 (La.10/04/02), 826 So.2d 1122.

      . State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, 171, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999); State v. Fontenot, 550 So.2d 179 (La.1989).

      . See also, State v. Jenkins, 558 So.2d 800, 801 (La.App. 5 Cir.1990), writ denied, 564 So.2d 321 (La.1990).

      . State v. Lee, 331 So.2d 455, 458 (La.1975).

      . State v. Edwards, 420 So.2d 663, 669 (La.1982).

      . State v. Jones, 99-798 (La.App. 5 Cir. 11/10/99), 748 So.2d 1176, writ denied, 00-306 (La.12/08/00), 775 So.2d 1076.

      . State v. Lee, 331 So.2d at 459; Accord, State v. Schexnayder, 97-729 (La.App. 1 Cir. 4/8/98), 708 So.2d 851, 855, writ denied, 98-1665 (La.10/30/98), 723 So.2d 978.

      . 562 So.2d 468, 470 (La.App. 5 Cir.1990), writ denied, 566 So.2d 987 (La.1990),

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).


source: Caselaw Access Project

author: | JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Calvin WILLIAMS.
    No. 03-KA-942.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Kia M. Habisrei-tinger, Trial Counsel, Martin Bellanger, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

The Defendant, Calvin Williams, appeals from his conviction of distribution of cocaine. We affirm.

The Defendant was charged on October 11, 2000 with distribution of cocaine, in violation of La.R.S. 40:967(A). He pled not guilty and filed several pretrial motions, including motions to suppress identification and confession and three motions to appoint a sanity commission. The Defendant was ultimately found competent to stand trial and his motions to suppress were denied.

The Defendant was tried and found guilty as charged by a 12 person jury after a two day trial, which commenced on August 29, 2002. He was then sentenced to eight years imprisonment at hard labor.

On May 26, 2000, Deputy Allison Dugas of the Jefferson Parish Sheriffs Office was working as an undercover narcotics agent, using the name Megan Carter (Agent Carter). On that day, she drove into Bundle Village in Metairie to purchase drugs. At the corner of Mistletoe and Wilson, she was approached by a black male, later identified as the Defendant, who asked what she wanted. Agent |3Carter asked the Defendant where she could get “two twenties,” two $20 rocks of crack cocaine. The Defendant covered his face with a white rag and asked for the money. Agent Carter gave him $40. In return, the Defendant gave her two off-white, rock-like objects individually wrapped in clear plastic, which later tested positive for cocaine. Agent Carter then left the area.

Agent Carter advised her cover/surveillance agents, Lieutenant Emile Larson and Agent Corey Wilson, who were driving around outside of the neighborhood on a moving patrol, that she had completed a purchase and gave them a description of the Defendant. She described the Defendant as wearing Tommy Hilfiger blue jean shorts with his boxer shorts showing, a short-sleeved white T-shirt and carrying a white rag.

Lieutenant Larson and Agent Wilson waited approximately three minutes before moving into the neighborhood to allow Agent Carter time to safely exit the area. Approximately two blocks from where the drug transaction occurred, Lieutenant Larson and Agent Wilson saw a man, later identified as the Defendant, who fit Agent Carter’s description. They called him over to the car. Agent Wilson conducted a field interview to obtain the person’s identity and to see if he had more narcotics or contraband on him. The Defendant gave the officer his name, address, date of birth and social security number. No illegal contraband was found. While Lieutenant Larson and Agent Wilson detained the Defendant, Agent Carter drove by at a distance and confirmed that he was the person who had sold her the drugs. She subsequently identified the Defendant in a photographic line-up compiled by Lieutenant Larson. The Defendant was not arrested then, in order to protect the identity of Agent Carter. He was later arrested during a “round up.”

Agent Carter’s vehicle was equipped with video capabilities. However, she had the wrong camera recording at the time of the transaction. Thus, is no video of the transaction. Agent Carter explained that she had activated the camera facing |4the passenger’s side of the vehicle during the transaction, which occurred on the driver’s side of the vehicle. The video, however, did record the audio of Agent Carter and the Defendant during the drug sale.

On appeal, the Defendant asserts that the trial judge erred in failing to appoint a sanity commission and in admitting the field interview card. The Defendant further asserts that the trial judge erred in denying the Defendant’s motion for a mistrial.

SANITY COMMISSION

First, the Defendant contends that the trial judge erred on the day before trial, in refusing to grant his motion to order a sanity commission to determine his competency to stand trial. He claims that a report by Dr. Sautter, a psychologist who evaluated him prior to trial, indicated that he exhibited moderately severe signs of paranoia and was in need of further evaluation. The Defendant alleges that Dr. Sautter’s report was sufficient to demonstrate that he was unable to assist in his defense.

The record shows that the Defendant actually filed three motions to appoint a sanity commission. The first motion was filed on February 14, 2001 by his IDB attorney, Michael Somoza. A hearing was held on that motion on May 9, 2001. The Defendant was represented by private counsel, Derrick Shepherd at the hearing. A transcript of the hearing is not contained in the record, but the minute entry reflects that the parties stipulated to a report of April 19, 2001, which concluded that the Defendant lacked the capacity to understand the proceedings against him and to assist in his defense. The report recommended that the Defendant receive outpatient legal-rights education. The minute entry also shows that the hearing was continued at the request of the parties. On the next hearing | r,date, September 27, 2001, the Defendant failed to appear for trial and an attachment was issued.

A second motion for a sanity commission was filed , on January 15, 2002. During a hearing on May 15, 2002, the parties stipulated to a report dated April 3, 2002 by Dr. Rafael Salecedo and Dr. Richard Richoux, in which the doctors opined that the Defendant was competent to proceed to trial. The doctors noted in their report that the Defendant had previously been found to be incompetent and that competency restoration services were recommended. The report noted that the Defendant received the recommended services. The trial judge adopted the doctors’ recommendation and found the Defendant competent for trial.

A third motion for a sanity commission was made in open court on August 28, 2002, the day before trial. The trial judge denied the Defendant’s oral motion stating, “I’m not going to order another sanity hearing based upon what you told me about [defendant].” Thereafter, on the same date, the Defendant filed a written motion for a sanity hearing and attached the report of Dr. Fred Sautter. The next day, prior to the commencement of trial, defense counsel again argued for the appointment of a sanity hearing based on Dr. Sautter’s August 28, 2002 report. The Defendant argued that Dr. Sautter’s finding that he had moderately severe paranoia and needed further evaluation, warranted the appointment of a sanity commission.

The trial judge denied the motion noting that the Defendant had already been examined by two trained psychiatrists who found him able to understand the proceedings and assist in his own defense. The trial judge further stated that Dr. Sautter was a psychologist who merely conducted a brief interview with the Defendant and noted only that the Defendant may or may not have certain | (¡psychological conditions. The trial judge explained that whether the Defendant had psychological problems was not the issue and stated:

I’m certain that many defendants that go to trial have psychological problems, psychological issues, including those mentioned in this report. But as long as they don’t interfere with his ability to understand the proceedings against him, his ability to assist his attorney and understand what’s going on, then they would not rise to the level to cause me to grant the action requested by the Defense.

A defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. La.C.Cr.P. art. 642. La.C.Cr.P. art. 641 provides that “Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or tó assist in his defense.” The trial judge is only required to order a mental examination of the defendant when he has a reasonable ground to doubt the defendant’s mental capacity to proceed. La.C.Cr.P. art. 643; State v. Pugh, 02-171, p. 13 (La.App. 5th Cir.10/16/02), 831 So.2d 341, 349. “Reasonable grounds” refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that the defendant can not understand the proceedings, appreciate the significance of the proceedings, or rationally aid his attorney in his defense. State v. Williams, 02-1016, pp. 8-9 (La.App. 5th Cir.2/25/03), 841 So.2d 936, 942. A defendant’s sanity is presumed by the law. La.R.S. 15:432; Pugh, 02-171 at 14, 831 So.2d at 350.

In State v. Bridgewater, 00-1529, p. 14 (La.1/15/02), 823 So.2d 877, 892, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), the Louisiana Supreme Court stated:

Simply because a defendant’s capacity to proceed is called into question by formal motion does not mandate a mental examination be ordered and a sanity commission be appointed.... Appointing a sanity commission is |7neither a perfunctory matter nor a ministerial duty of the trial court; it is not guaranteed to every accused in every case.... Given the presumption of sanity, before the court is required to appoint a sanity commission, the defendant must establish by a preponderance of the evidence that reasonable grounds exist to doubt his mental capacity to proceed.... A reviewing court owes the trial court’s determination on these matters great weight, and the trial court’s ruling will not be disturbed on appeal absent a clear abuse of discretion.... (Citations omitted).

There must be substantial doubt as to the defendant’s mental capacity before refusal to order an examination constitutes an abuse of discretion. Pugh, 02-171 at 13, 831 So.2d at 349.

In Pugh, this Court found no error in the trial judge’s refusal to order a fourth competency evaluation. Pugh was found incompetent after the first sanity hearing. He received jail-based education and was subsequently found competent to stand trial. Seven months later, he filed a second motion for a sanity commission and was again evaluated by two psychiatrists. He was. again found competent to stand trial. Approximately one and one-half years later, Pugh filed a third motion for a sanity hearing. Two doctors attempted to evaluate him, but he refused to cooperate and the doctors were unable to render an opinion on his competence. A third -doctor, apparently retained by the defense, also attempted to evaluate Pugh, but'was unable to do so because he was uncooperative. All doctors recommended further evaluation to determine whether Pugh had a mental illness. The trial judge found that Pugh failed to meet his burden of proving he was incompetent:

Prior to trial, Pugh filed ex parte a fourth motion for the appointment of a sanity commission. At the ex parte hearing, defense counsel noted that Pugh had been unable to assist in his defense due to some mental defect and requested a competency evaluation for him. The trial court denied his request.

|RIn upholding the trial court’s refusal to appoint a fourth sanity commission, this Court noted that the last physicians to examine Pugh could not render any opinion on Pugh’s competence because he refused to cooperate. We also noted that the record showed Pugh was literate and conversed intelligently.

In reaching its decision in Pugh, this Court relied on State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982) and State v. Holmes, 393 So.2d 670 (La.1981). In both cases, the Louisiana Supreme Court affirmed the trial courts’ ruling, finding the defendants competent to stand trial despite their refusal to cooperate with the evaluation. Furthermore, in both cases, the doctors were unable to render an opinion on the competency of the defendants and recommended further evaluation to determine whether the defendants were incapable of standing trial.

In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme Court listed the following factors to be considered in determining whether a defendant is able to assist in his defense:

[W]hether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

In the present case, Dr. Sautter’s report does nothing more than recommend further evaluation. As in Pugh, Edwards and Holmes, this Defendant was uncooperative during the latest evaluation and refused to complete the psychological test that Dr. Sautter attempted to administer. This conduct prevented the doctor from making a psychiatric diagnosis. Although Dr. Sautter noted that [athe Defendant appeared psychotic at the time of the interview due to extreme paranoid tendencies, he never expressed the opinion that the Defendant lacked the understanding to proceed to trial. To the contrary, Dr. Sautter stated that the Defendant communicated effectively during the interview and exhibited no thought disorders. Although Dr. Sautter’s report also noted that the Defendant’s distrustfulness would likely interfere with his ability to collaborate with his attorney during the defense process, nothing in the report indicates that the distrustfulness was anything more than manipulative behavior. Dr. Sautter’s report merely found that the Defendant may or may not have certain psychological conditions. It does not raise a reasonable doubt as to the Defendant’s mental capacity to proceed to trial. The Defendant’s distrust of his court-appointed attorney does not render him incompetent. Furthermore, there was nothing in the report to contradict the previous sanity report that found the Defendant capable of assisting in his own defense. In addition, the Defendant testified at trial in his own defense. His answers were responsive to the questions asked and clearly demonstrated his competence. See, Holmes, 393 So.2d at 674, where the Louisiana Supreme Court found that Holmes’ conduct at trial “discredited his prior claim of incapacity.” Thus, we find that the trial judge did not abuse his discretion in denying the motion to appoint a third sanity commission.

FIELD INTERVIEW CARD

Second, the Defendant argues that the trial judge erred in allowing the field interview card into evidence, because the State failed to disclose the evidence prior to trial, despite the Defendant’s discovery requests. The Defendant maintains, that he was prejudiced by the admission of the field interview card because it negatively impacted his defense theory of misidentifi-cation. He alleges that his defense was based on the fact that none of the police officers acknowledged or noted in any of their reports that the perpetrator had numerous tattoos and gold |inteeth. He claims that he was unfairly surprised at trial because the field interview card mentioned the perpetrator’s tattoos and gold teeth.

The -State responds that the evidence was properly admitted, as rebuttal evidence. The State contends that it never intended to use the field interview card during its case in chief, but was.required to rebut the Defendant’s claim of misiden-tification presented- during his testimony.

Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to respond to the state’s case, and to allow a proper assessment of the strength of the state’s case. La.C.Cr.P. arts. 716-729; State v. Simmons, 03-20, p. 19 (La.App. 5th Cir.4/29/03), 845 So.2d 1249, 1261. La. C.Cr.P. art. 718 provides for discovery, on motion of the defendant, of documents and tangible evidence which are within the possession, custody, or control- of the State when the items sought are (1) favorable to the defendant and material and relevant to guilt or punishment, (2) are intended for use by the state as evidence at trial, or (3) were obtained from or belong to the defendant. Simmons, 03-20 at 20, 845 So.2d at 1261 (emphasis added). Further, discovery is not limited to what is contained in the district attorney’s file. See: State v. Lee, 531 So.2d 254 (La.1988).

Rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. State v. Parent, 02-835, p. 15 (La.App. 5th Cir.12/30/02), 836 So.2d 494, 504, writ denied, 03-0491 (La.10/31/03), 857 So.2d 472. The determination of what constitutes valid and admissible rebuttal evidence is an issue within the sound discretion of the trial court. Id. A trial court’s ruling on -the admissibility of rebuttal evidence will not be disturbed, except in extreme cases, such as when the evidence was kept back deliberately for the purpose of deceiving and obtaining an undue advantage. Parent, 02-835 at 15, 836 So.2d at 504-505.

InDuring the State’s case-in-chief, Agent Wilson testified that he conducted a field interview of the Defendant minutes after the drug transaction. He testified that the field interview was conducted to find out identifying information and to check to see if the Defendant had any narcotic contraband on him. The agent explained that he filled out a card with the Defendant’s name, address, and date of birth. No other questions were asked about the field interview card. Rather, the prosecutor asked Agent Wilson whether he got a good look at the Defendant at the time of the field interview, then he moved into a line of questions relating to the photographic lineup.

The other officer at the scene of the stop, Lieutenant Larson, also testified that a field interrogation card was filled out when he and Agent Wilson stopped the Defendant. He explained that the card documented who the Defendant claimed to be, his address and his social security-number. No other questions were asked about the contents of the card.

After the State rested its case-in-chief, the Defendant testified. During his testimony, he denied that the officers stopped him and attempted to cast doubt on the identification made by Agent Carter. The Defendant testified that Agent Carter mistakenly identified him as the perpetrator who sold her the drugs because she did not mention his multiple tattoos or his gold teeth in her description of the perpetrator, which he showed to the court during his testimony.

In rebuttal, the State called Agent Wilson back to the stand. In connection with Agent Wilson’s rebuttal testimony, the State sought to introduce the field interview card which noted the Defendant’s tattoos and gold teeth. The Defendant objected, claiming that the card was not provided in discovery despite being requested. The State responded that the card came into its possession only within the last five to ten minutes of the trial and only after the Defendant raised the issue |12of his identification and his tattoos and II» gold teeth. The trial judge ruled that the field interview card was rebuttal evidence and allowed it into evidence.

The field interview card was not intended for use at trial and was offered to “explain, repel, counteract or disprove” the Defendant’s claim that he was not the person stopped by the officers. See; Parent, 02-835 at 15, 836 So.2d at 505. Although a reference was made to the field interview card during the testimony of Agent Wilson and Lieutenant Larson during the State’s case-in-chief, the State did not rely on the contents of the card as evidence. Rather, the card was referenced simply to show that the police recorded the identity of the person they stopped and interviewed. The field interview card was offered in rebuttal, because it contained a description of two of the Defendant’s tattoos and his gold teeth, as observed by Agent Wilson at the time of the interview. Thus, we find that the trial court did not abuse its discretion in finding the card to be rebuttal evidence.

Furthermore, as rebuttal evidence, the field interview card was not subject to pretrial discovery. We also note that there is no evidence the State withheld the evidence deliberately for the purpose of deceiving and obtaining an undue advantage. Thus, we find that the trial judge did not err in admitting the field interview card as rebuttal evidence.

MISTRIAL

The Defendant argues the trial judge erred in refusing to grant a mistrial after repeated improper remarks by the prosecutor during the State’s opening statement and closing argument and by eliciting inadmissible testimony that was highly prejudicial. The Defendant challenges the trial court’s denial of several separate requests for a mistrial.

|iaA mistrial is a drastic remedy and, except in instances in which it is mandatory, a mistrial is warranted only when trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Ballay, 99-906, p. 14 (La.App. 5th Cir.2/29/00), 757 So.2d 115, 126, writ denied, 00-0908 (La.4/20/01), 790 So.2d 13. Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion.. Id.

La.C.Cr.P. art. 770 provides for a mandatory mistrial when:

Upon motion of a defendant, ... a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(8) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury, to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

A mistrial is discretionary under La. C.Cr.P. art. 771 when a remark or comment made by the district attorney during trial is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury and does not fall within the scope of Article 770. Article 771 provides that, upon the request of the defendant, a trial court shall admonish the jury to disregard the improper remark or comment. In the event that the trial court is not satisfied that an admonition is sufficient to assure the defendant a fair trial, it may grant a mistrial.

|UA) Improper Opening Statement

The Defendant first complains that the trial judge erred in denying his request for a mistrial during the prosecutor’s opening statement. The prosecutor stated, “[a] single battle in the war on drugs will be fought and it will be fought in this very courtroom.” The Defendant objected because the case was not about the war on drugs, but rather was the guilt or innocence of the Defendant. Defense counsel then moved for a mistrial, claiming the prosecutor was enlisting the jury in the war against drugs. The trial judge overruled the objection and denied the motion. No further mention of the war on drugs was made by the prosecutor. We agree with the Defendant, but find that the comments do not warrant a mistrial.

La.C.Cr.P. art. 766 provides that the State’s opening statement “shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” The opening statement is designed to inform the jury so they may understand the evidence as it unfolds and to protect the defendant from surprise. State v. Green, 343 So.2d 149, 151 (La.1977). Statements made outside the permissible scope of an opening statement may result in a mistrial under La. C.Cr.P. arts. 770 and 771. State v. Robinson, 598 So.2d 407, 412 (La.App. 5th Cir. 1992).

In this case, the comment at issue does not fall within the scope of Article 770 and, therefore, the granting of a mistrial was discretionary. Prior to opening statements, the trial judge instructed the jury that:

[T]he District Attorney will make an opening statement, the Defense counsel may then make an opening statement if he chooses to do so. The opening statements are not evidence, but are an outline of what the attorneys contend will or will not be shown by the evidence.

At the conclusion of the trial, the trial judge again cautioned the jurors that “[statements and arguments made by the attorneys are not evidence” and, specifically, that “[t]he opening statements and the closing arguments are not to be 11Rconsidered as evidence.” The trial judge further instructed the jurors that they were not to be “influenced by sympathy, passion, prejudice, or public opinion.”

In State v. Washington, 563 So.2d 530, 532 (La.App. 5th Cir.1990), this Court addressed a similar issue in the context of the State’s rebuttal argument. In Washington, the prosecutor, during his rebuttal argument, stated:

“If you don’t’ think it’s a war out there, you haven’t been awake for the last couple of years. What’s destroying we, the people of the United States, right now and the United States? It’s the dope dealer. It’s the retail outlet for the cartels that finally funneled down and our kids and our people get the dope, the crack cocaine, the powder cocaine.”

This Court found the remarks to be improper, but did not find the remarks to be so inflammatory so as to divert the jury from a decision based on the evidence. We noted that the evidence at trial fully supported the guilty verdict and that the prosecutor’s remarks did not influence the jury or contribute to the verdict.

The prosecutor’s comments in this case were improper, immaterial and irrelevant and beyond the permissible scope of an opening statement. Therefore, the trial judge should have sustained the objection of the Defendant. However, the comment did not rise to the level of preventing a fair trial, thereby warranting a mistrial. After making the opening objectionable remark, the prosecutor immediately moved on to presenting the facts that the State expected to prove. The prosecutor made no further comments regarding the “war on drugs.” Additionally, the trial judge instructed the jury at least twice that opening statement was not evidence. The Louisiana Supreme Court has stated that “a great deal of credit should be accorded to the good sense and fair-mindedness of jurors who have heard the evidence and who know what was and was not proven.” State v. Dupre, 408 So.2d 1229, 1234 (La.1982). Here, the evidence at trial was overwhelming against the Defendant. Furthermore, there is no indication that the jurors convicted hfithe Defendant based on the remark by the prosecutor pertaining to the “war on drugs.” Thus, a mistrial was not warranted as a result of this remark.

2) Improper Closing Arguments

The Defendant next argues that the prosecutor made improper and prejudicial remarks during her closing argument and rebuttal argument.

Defense counsel moved for a mistrial after the prosecutor stated during closing argument, “It’s a fabricated story. It’s a defense thrown together at the last second to get him off. That’s what he’s trying to do, that’s what Mr. Somoza is trying to do.” Defense counsel argued that the prosecutor was personalizing the case and making a personal attack on him. The trial judge overruled the objection, but warned the prosecutor not to personalize it. We agree with the Defendant, but find that the comments did not warrant a mistrial.

The Defendant again moved for a mistrial when the prosecutor stated in rebuttal argument, “I’m asking you to send a message to the drug dealers like [Defendant] who deal drugs in our parish — ”. The Defendant moved for a mistrial claiming the remark was “editorializing on the war on drugs” and that it suggested the Defendant was associated with other drug dealers. The trial court denied the motion. We agree with the Defendant on this point too, but find that the comments did not warrant a mistrial.

La.C.Cr.P. art. 774 provides:

The argument shall be confined to evidence admitted, to lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

A prosecutor has considerable latitude in making closing arguments. State v. Taylor, 93-2201, p. 19 (La.2/28/96), 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). However, a prosecutor may not turn arguments into a plebiscite on crime. State v. Williams, 96-1028, p. 15 (La.1/21/98), 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998). Additionally, a prosecutor should refrain from making personal attacks on defense strategy and counsel. State v. Simmons, 98-841, p. 17 (La.App. 5th Cir.6/1/99), 738 So.2d 1131, 1140, writ denied, 99-2419 (La.4/20/00), 760 So.2d 333. Nevertheless, a conviction will not be reversed because of improper argument, unless the reviewing court is “ ‘firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict.’ ” Taylor, 93-2201 at 18, 669 So.2d at 375.

In State v. Smith, 31,955, p. 18 (La.App. 2nd Cir.5/5/99), 740 So.2d 675, 687, writ denied, 00-1404 (La.2/16/01), 785 So.2d 840, the prosecutor asked the jury to “send a message to the defendant and his gang members about actions and their consequences.” The Second Circuit found a mistrial was not warranted.

Personal attacks were made by the prosecution on the defense counsel in State v. Johnson, 00-0608, p. 14 (La.App. 1st 12/22/00), 775 So.2d 670, 680, writ denied, 02-1368 (La.5/30/03), 845 So.2d 1066. The prosecutor referred to him as the “great finder of truth” and then pointed out his “blatant lie[s].” The prosecutor also appealed to the jurors to represent the city of Baton Rouge in reaching its verdict. The First Circuit found the prosecutor’s comments to be improper, but that the comments did not influence the jury’s verdict.

In the present case, we find that the prosecutor’s comments were improper, immaterial and irrelevant. The trial judge should have sustained the objection to the comments, admonished the prosecutor, and admonished the jury to disregard them. However, the remarks did not fall within one of the mandatory reasons for a mistrial in C.Cr.P. art. 770. Furthermore, considering that the reviewing court |ismust give credit to the good sense and fair-mindedness of the jury, the totality of the evidence against the Defendant in this case, and that the trial court specifically instructed the jury not to consider the closing arguments as evidence, we find that the comments did not contribute to the verdict. Thus, a mistrial was not warranted on this basis.

3) Improper Testimony

The Defendant also asserts the trial court erred in overruling his objections when the prosecutor elicited improper testimony from Agent Wilson and Lieutenant Larson. The Defendant contends that the testimony was intended to inflame the jury.

During Agent Wilson’s testimony, he explained an undercover drug transaction. Agent Wilson explained that three to five people are involved, including the undercover agent and surveillance agents, who were used for the safety of the undercover agent. The prosecutor then inquired, “[w]hy are you worried about the undercover’s safety?” The Defendant objected because that the question was designed to inflame the jury and was part of their “war on drugs” theme. The prosecutor responded that the jury had a right to know why surveillance agents were involved. The trial judge overruled the objection, stating that the case was a drug case and the State was simply asking questions about what occurred. Agent Wilson then testified that the undercover agents are sometimes robbed and that the surveillance agents stand ready to help the undercover agent if needed.

The prosecutor later asked Agent Wilson what happened on the day in question. Agent Wilson then discussed neighborhood complaints, civic associations and “round ups.” The Defendant objected on the grounds of relevancy and the prosecutor agreed to ask more specific questions.

119Lieutenant Larson testified next. During cross-examination, defense counsel objected to Lieutenant Larson’s testimony as being non-responsive and pursued a line of questions relating to the towel that the perpetrator used to cover his face during the drug transaction. Counsel inquired into the difference between the perpetrator covering his face with a towel and the person who was stopped holding a towel in his hand. Lieutenant Larson responded, “It’s not uncommon now for us to have these kind of problems, because for several years we’ve been making videotaped undercover buys, and they have been going to court. So, now people are starting to get smart, and when they feel that they might be — ”. Defense counsel moved for a mistrial claiming the response was inflammatory. The trial judge denied the motion.

The Defendant argues that the above testimony amounted to social commentary by the police officers, into ending drug dealing, designed to inflame the jury. The Defendant admits in his brief that each error is “perhaps harmless in isolation” but contends that the cumulative effect is prejudicial.

All relevant evidence is admissible, except where limited by law. La.C.E. art. 402. Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. La.C.E. art. 401. Although relevant, evidence may nonetheless be excluded, if the probative value is substantially outweighed by its prejudicial effect. La.C.E. art. 403. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230, p. 11 (La.App. 5th Cir. 2/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La.10/3/03), 855 So.2d 308.

The Defendant has failed to show that the trial judge abused his discretion in admitting the alleged objectionable portion of Agent Wilson’s and Lieutenant | s,nLarson’s testimony. The Defendant sold drugs to an undercover agent conducting an undercover drug transaction. Both Agent Wilson and Lieutenant Larson testified regarding the procedures used for undercover drug transactions and various issues involved in such a transaction, such as potential safety and identification problems. That testimony was relevant to show the jury the full picture of an undercover drug transaction. Therefore, we find no error in the above denial of the Defendant’s objections.

CUMULATIVE ERRORS

The Defendant contends that the combination of the errors demonstrated a pattern of misconduct that requires reversal of his conviction. We disagree. The Louisiana Supreme Court has been “ ‘unwilling to say that the cumulative effect of assignments of error lacking in merit warrants reversal of a conviction or sentence.’ ” State v. Hotoph, 99-243, pp. 32-33 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, 1055, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 00-0150 (La.6/30/00), 765 So.2d 1066, quoting State v. Strickland, 94-0025, pp. 51-52 (La.11/1/96), 683 So.2d 218, 239. As stated by the Court in Hotoph, a defendant is not entitled to a perfect trial, only a fair one. Hotoph, 99-243 at 33, 750 So.2d at 1055. The record reveals that the Defendant received a fair trial in this case. Therefore, we find no error in the alleged cumulative errors described above.

The record was reviewed for patent error, pursuant to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Perrilloux, 99-1314 (La.App. 5th Cir. 5/17/00), 762 So.2d 198.

We note that at the time the offense was committed, La.R.S. 40:967(B)(4)(b) required the first five years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The Defendant was not so sentenced herein. However, the mandatory specified and limited restriction on the eligibility | Z1 of the benefits is self-activating and requires no action by this Court. State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 798-799; State v. Jerome, 03-126, pp. 7-8 (La.App. 5th Cir.4/29/03), 845 So.2d 1194, 1199.

Accordingly, the Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . The Defendant had five other charges pending, bearing four different docket numbers. Prior to sentencing herein he pled guilty to two of the charges and the remaining three charges were dismissed. The eight year sentence herein was part of the plea agreement therein.

      . Indigent Defender’s Board.

      . Defendant’s retained counsel was allowed to withdraw on May 15, 2002 and the IDB was again appointed to represent him.

      . See; State v. Hamilton, 99-523 (La.App. 3rd Cir.11/3/99), 747 So.2d 164; State v. Amedee, 408 So.2d 1259 (La.1982).

      . See, State v. Dupre, 408 So.2d at 1234.

      . The five years provision was reduced to two years in Acts 2001, No. 403, § 4 which amended portions of La.R.S. 40:967.


author: | WALTER J. ROTHSCHILD, Judge. LEPWARDS, J.,

text:
    STATE of Louisiana v. Charles STEWART.
    No. 03-KA-920.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, LaPlace, LA, for Plaintiff/Appellee, The State of Louisiana.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant, Charles Stewart.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | WALTER J. ROTHSCHILD, Judge.

On October 26, 1999, a St. John the Baptist Parish grand jury indicted the defendant, Charles Stewart, for distribution of cocaine in violation of LSA-R.S. 40:967(A). The defendant was arraigned on November 29, 1999 and pled not guilty. On April 30 and May 1, 2001, the case was tried before a 12-person jury which found the defendant guilty as charged. The State filed a multiple bill on August 21, 2001, alleging the defendant to be a second felony offender, and the defendant denied the allegations of the multiple bill on August 22, 2001. On September 19, 2001, the trial court found the defendant to be a second felony offender and sentenced him to 47 years with the Department of Corrections. The defendant moved for an appeal, which was granted by the trial court.

FACTS

Agent Gilbeau of the Terrebonne Parish Sheriffs Office testified that, on September 30, 1999, she and a confidential informant (Cl) traveled on Railroad Avenue in Reserve. Agent Gilbeau, who was driving the vehicle, observed a black male, later identified as the defendant, standing on Northwest First Street. The defendant flagged her down, so Agent Gilbeau backed up the vehicle. The defendant approached the driver’s side window and asked what she wanted. Agent RGilbeau asked the defendant for a “40,” which she explained is $40.00 worth of crack cocaine.

The defendant subsequently dropped three pieces of crack cocaine into her left hand, and Agent Gilbeau reached for her money. The Cl asked the defendant if there was a number where they could reach him later, and the defendant said he would get the number. He walked away from the vehicle and into a residence. While they were waiting, Agent Gilbeau moved her vehicle to the shoulder of the road in front of the residence. The defendant came out shortly afterward, approached the passenger side of the vehicle, and handed Agent Gilbeau a matchbook with a number and the name “Charles” on it. Agent Gilbeau testified that he wanted her to call him later to purchase more crack cocaine.

After the defendant gave her the matchbook, Agent Gilbeau handed him the money. The defendant walked away with a cell phone in his left hand and the money in his right hand. Agent Gilbeau turned around in a church parking lot and drove off. She placed the cocaine in a small plastic bag, sealed it, and gave it to Detective Hidalgo. Agent Gilbeau positively identified the defendant in court, and testified that she had never met the defendant prior to the transaction.

Detective Troy Hidalgo of the St. John the Baptist Parish Sheriffs Office testified that he was in charge of an operation which utilized undercover agents to buy narcotics from street level dealers within documented high crime areas of St. John Parish. He testified that, on September 30,1999, he sent Agent Michelle Gilbeau to buy narcotics in an unmarked vehicle equipped with video and audio recording devices. Detective Hidalgo monitored the transaction involving the defendant by audio two blocks away. After the transaction took place, he met with Agent Gilbeau and obtained the narcotics from her.

Detective Hidalgo viewed the videotape of the transaction and positively identified the defendant, with whom he was familiar. The tape, which was played |4for the jury, shows a vehicle proceeding down a road. A black male, who is standing on the side of the road, approached the driver’s side window with a cell phone in his left hand. The black male subsequently dropped something from his right hand into the driver’s left hand and then walked away from the vehicle. The driver then pulled to the side of the road, and the black male approached the passenger side window. When he stepped away from the vehicle, it appears that he had something in his right hand and a cell phone in his left hand. The driver then pulled away. Although conversation can be heard throughout the tape, the volume is too low to ascertain what was being said.

John Palm, Jr., a criminalist with the New Orleans Police Department who was qualified as an expert in the field of drug analysis, testified that he performed an analysis of the substance in this case and found it to be positive for cocaine. He did not weigh the substance, but he estimated its weight to be between one tenth and three tenths of a gram.

The defense did not call any witnesses.

DISCUSSION

In his first assignment of error, the defendant argues that the trial court erred in granting the State’s “reverse Batson” challenges of two prospective jurors, Morris Jeandron and Mary Snyder. He contends that the State did not prove that defense counsel was engaging in purposeful discrimination, that his reasons for challenging the jurors in question were race neutral, and that the trial court did not allege that the State had met its burden of proving purposeful discrimination.

The United States constitution prohibits the State from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It also prohibits the defendant from engaging in such conduct. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); State v. Knox, 609 So.2d 803 (La.1992). When the State makes an objection to the defense’s challenge of prospective jurors, it is sometimes referred to as a “reverse-Batson.” State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103, 1106. Louisiana law codifies this concept in LSA-C.Cr.P. art. 795(C), which provides:

No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

If the challenger makes a prima facie showing of discriminatory strikes, the burden shifts to the opposing party to offer raeially-neutral explanations for the challenged members. The neutral explanation must be one which is clear, reasonably specific, legitimate, and related to the particular case at bar. State v. Collier, 553 So.2d 815, 820 (La.1989). If a race neutral explanation is tendered, the trial court must decide, in step three of the Batson analysis, whether the challenger has proven purposeful discrimination. Burkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

During voir dire of the second jury panel, Mrs. Snyder stated that she lived in LaPlace, that she was married, that she had children ranging in age from 35 to 41, that she was retired from Marathon Oil, and that her husband was retired from the St. John Parish water works department. She said she would be able to vote not guilty.

Mr. Jeandron stated that he lived in LaPlace, that he was married, that he had five children ranging in age from 15 to 49, that he was employed part-time with Allied Maintenance Training, and that his wife worked at First Baptist Church Wee |fiCare Center as a teacher. He said that he did not think that all policemen always tell the truth, and that he would be able to vote not guilty.

The State accepted Mrs. Snyder as a juror, but defense counsel used a peremptory challenge to exclude her from the jury. The court commented that it was the eighth (peremptory) challenge by the defense. The court subsequently tendered Mr. Jeandron to the State. The State indicated that Mr. Jeandron was acceptable, but defense counsel used a peremptory challenge. The State said that this was the ninth white juror that had been peremptorily challenged, and that it thought that this violated the Batson ruling. The court told defense counsel that he needed to respond to the nine challenges.

Defense counsel explained that he did not like the lack of eye contact he received from Mr. Jeandron, that he did not “feel comfortable” with him with his lack of eye contact, and that he did not “feel comfortable” with the manner that he responded to questions. The State said that Mr. Jean-dron responded “quite frankly.” The court explained that this was not a proper way to exercise a peremptory challenge.

The trial court also told defense counsel that he needed to address the challenge of Mrs. Snyder, a white female. Defense counsel explained that she was a female with children, and that he felt “uncomfortable” with the fact that a female might be prejudiced against a young male defendant. The State responded that, in that case, they “should probably exclude ninety percent of this jury and not have jury trials in St. John Parish.”

The trial court questioned defense counsel about other prospective jurors that he had challenged. When asked why he challenged Gary Beauchamp, defense counsel responded that Mr. Beauchamp’s office prosecuted people. With respect [7to another prospective juror, James Kliebert, defense counsel explained that he challenged Mr. Kliebert because he knew Officer Hidalgo.

The court subsequently stated in pertinent part (footnote added):

Considering my remedy here, the Jeandron thing, I don’t think that was proper — I have a hint that the Snyder and Jeandron [sic] are racially motivated. The first two have much more obvious reasons that would cause you to exercise a peremptory challenge. So, therefore, I will strike the challenges of Snyder and Jeandron on Batson grounds, and not go back and address any other challenges you have exercised. In fact, those people have been dismissed and they are not within my purview.

The court then seated Mrs. Snyder as juror number five and Mr. Jeandron as juror number six. Defense counsel noted his objection.

The first step in the Batson analysis is whether the State established a prima fa-cie case of discrimination. In connection with this first step, defendant contends that the State did not prove that defense counsel was engaging in purposeful discrimination. The record reflects that, after the State made a Batson challenge and accused defense counsel of using peremptory challenges to excuse white prospective jurors, the trial judge asked defense counsel to respond to the challenges.

Although the trial judge did not expressly rule that the State had established a prima facie case of discrimination, a trial judge’s demand for race neutral justification for peremptory strikes is tantamount to a finding that enough evidence has been shown to support an inference of intentional discrimination. State v. Lewis, 01-155 (La.App. 5 Cir. 8/28/01), 795 So.2d 468, 472, writ denied, 01-2682 (La.8/30/02), 823 So.2d 939. Because it appears that the trial court found that the State made a prima facie showing of discriminatory strikes, the burden shifted to defense counsel to offer racially neutral explanations for the challenged members. |sThe defendant argues that the trial judge erred by not accepting his reasons as race neutral.

Mr. Jeandron

The record indicates that defense counsel used a peremptory challenge on Mr. Jeandron because Mr. Jeandron failed to make eye contact with him, and because he was uncomfortable with the way Mr. Jean-dron responded to questions.

This Court has previously found that trial courts have not abused their discretion in finding that failure to make eye contact is a racially neutral reason for peremptorily challenging a venireperson. See State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401; and State v. Durham, 94-1036 (La.App. 5 Cir. 4/16/96), 673 So.2d 1103. However, this.Court has also found that trial courts have not erred in refusing to accept failure to make eye contact as a race neutral explanation. See State v. Spencer, infra. Additionally, the comment that counsel has “a feeling” about a particular juror is not a sufficiently race neutral explanation. State v. Wade, 36,295 (La.App. 2 Cir. 10/23/02), 832 So.2d 977, 984, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.

In State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, 1366-1367, writ denied, 94-0488 (La.2/3/95), 649 So.2d 400, the State, noting that the defendant was black, voiced an objection that the defense was using its peremptory challenges in a racially discriminatory fashion to exclude white jurors from the jury panel. The trial judge rejected defense counsel’s reason for the peremptory challenge of one prospective juror who, according to defense counsel, avoided eye contact during questioning. This, along with quick responses to questions about the death penalty, argued defense counsel, indicated that this juror was less than candid and that he was predisposed toward the death penalty. The trial judge, who observed this veniremember during voir dire, refused to accept this explanation from defense counsel, and this Court found no manifest error in this ruling.

|c>A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. State v. White, 01-134 (La.App. 5 Cir. 7/30/01), 792 So.2d 146, 153, writ denied, 01-2439 (La.9/13/02), 824 So.2d 1190. In the present case, with respect to Mr. Jeandron, the trial court did not believe that failure to make eye contact was a race-neutral explanation for challenging him. The trial judge carefully considered the matter and made a thoughtful decision based on his perceptions of the motivation of defense counsel during the voir dire. The trial judge had the advantage of observing the characteristics and demeanor of the attorneys and the prospective jurors firsthand, and he apparently believed that there was discriminatory intent for challenging Mr. Jeandron.

The record does not indicate that the trial court would not consider lack of eye contact to be a race neutral reason for a peremptory challenge in any situation. Rather, there was one instance during jury selection when defense counsel used a peremptory challenge on a prospective juror, Marlene Meades, who is a white female, and the State asserted a Batson challenge. Defense counsel explained that Ms. Meades failed to make eye contact, and the trial judge denied the State’s Batson challenge, saying that he noticed Ms. Meades’ failure to make eye contact himself. Therefore, the trial judge found that failure to make eye contact was a race neutral reason to exercise a peremptory challenge. However, he observed the voir dire and apparently did not believe that defense counsel’s explanation was race neutral when Mr. Jeandron was challenged.

This Court has held that a trial judge’s rulings regarding discriminatory jury selection are entitled to great deference, and are not overturned absent a finding of manifest error. State v. Spencer, supra at 1366-1367. Considering the record before us, particularly the transcript of jury selection, and in view of the vast amount of deference to be accorded to the findings of the trial judge in this context, |init cannot be said that the trial judge was clearly wrong in choosing not to believe the explanation for challenging Mr. Jeandron and in granting the State’s reverse-Batson challenge.

Mrs. Snyder

The record indicates that defense counsel used a peremptory challenge on Mrs. Snyder because she had children, and he was uncomfortable with the fact that a female might be prejudiced against his client, a young male.

It appears that one reason defense counsel was attempting to strike Mrs. Snyder was because of her gender. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court extended Bat-son’s prohibition to gender, holding that “gender, like race, is an unconstitutional proxy for jury competence and impartiality.” 511 U.S. at 129, 114 S.Ct. 1419. However, in the instant case, the State did not object on the basis of gender and, therefore, the trial court made no ruling on that issue for this Court to review.

In addition to gender, defense counsel attempted to strike Mrs. Snyder because she had children. In State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471, 476, the State proffered that it was striking venire-person Brown because he was single and had no children. The Louisiana Supreme Court found that this justification was unpersuasive as the record reflected that the State did not attempt to strike single white male venirepersons without children. Similarly, in the instant case, defense counsel’s claim that he was challenging Mrs. Snyder because she had children appears pretextual, considering that defense counsel had previously accepted a male with children during the voir dire of the first panel.

In the instant case, it further appears that defense counsel attempted to strike Mrs. Snyder because of her advanced age. Although Mrs. Snyder’s age is not inJjjthe record, it can be inferred that she was older than the defendant. The record indicates that the defendant was 35 years old at the time of trial, that Mrs. Snyder had children ranging in age from 35 to 41, and that defense counsel wanted to exclude her from the jury because she might be prejudiced against his “young” male client.

Considering the testimony, evidence and pertinent law, we find that the trial court did not err in finding that the defendant’s explanations were not race neutral and in granting the State’s reverse-Batson challenge with respect to Mrs. Snyder.

In view of the great deference to be accorded to the findings of the trial judge in this context, it cannot be said that the trial judge was clearly wrong in choosing not to believe the explanations for challenging Mr. Jeandron and Mrs. Snyder and in finding that purposeful racial discrimination motivated the peremptory challenges. Accordingly, the defendant’s first assignment of error is without merit.

In his second assignment of error, the defendant argues that the trial court erred in denying his motion to appoint a sanity commission.

On April 30, 2001, defense counsel filed a motion to determine sanity. In that motion, defense counsel stated that it had just come to his attention that the defendant had a documented history of paranoid schizophrenia, that the defendant had been treated at Charity Hospital and diagnosed as a paranoid schizophrenic, and that the defendant had been prescribed drugs for treatment of that condition. Defense counsel noted that he was having difficulty communicating with his client and, therefore, in preparing for trial.

On that same date, the defendant and his counsel appeared in court for trial. The trial judge asked the defendant whether he understood that his trial was that day. The defendant said that he did not come to court with the understanding that his trial was that day, and that he thought he was coming to court to be able to |12speak to the judge. The trial judge said that it was not unusual for a defendant to think that. The defendant stated that he had not had the opportunity to talk to his attorney about the case.

The trial judge indicated that he thought the defendant’s allegation that he had not spoken to his attorney was “a complete fabrication.” The defendant subsequently admitted to the trial judge that he had talked to his attorney that day. Defense counsel stated that he had talked to the defendant and that now the defendant wanted to talk to the trial judge. The trial judge said that it was not his policy to talk to the defendants on the day of trial, that the jury was going to come in a few minutes, and that they would proceed with a felony trial. At that point, the prospective jurors entered the courtroom, were sworn, and voir dire commenced. After several panels of prospective jurors were questioned, 12 jurors and two alternates were sworn.

On May 11, 2001, approximately 10 days after the trial had been completed, the trial court filed a written judgment, denying the motion to appoint sanity commission. In that judgment, the trial court found that the defendant’s self-serving statement that he had a history of mental illness, without any supporting evidence, offered moments before trial, did not satisfy the defendant’s burden of demonstrating reasonable grounds to doubt the defendant’s capacity.

In support of its position, the trial court cited State v. Washington, 00-301 (La.App. 5 Cir. 9/26/00), 769 So.2d 1235, 1238, writs denied, 00-2971 (La.9/28/01), 798 So.2d 106, 00-3041 (La.9/28/01), 798 So.2d 108, writ granted on other grounds, 02-1316 (La.5/31/02), 816 So.2d 863, in which this Court set forth the pertinent law regarding competency issues (Citations omitted):

According to La.C.Cr.P. art. 641, “[mjental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” A defendant’s mental | ^incapacity to proceed may be raised by the defense, the district attorney, or the court at any time.
The law presumes a defendant’s sanity. A defendant has the burden of proving by a preponderance of the evidence that, as a result of a mental disease or defect, he lacks the capacity to understand the proceedings against him or to assist in his defense. The trial court is required to order a mental examination of the defendant only when it has reasonable grounds to doubt the defendant’s mental capacity to proceed. The ordering of a sanity commission rests in the sound discretion of the trial court. Furthermore, when the issue of a defendant’s incapacity to proceed is presented by “bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed.”

In State v. Washington, supra at 1237-1239, defense counsel orally requested on the day of trial that the trial court appoint a sanity commission to determine the defendant’s present mental capacity. Defense counsel argued that the sanity commission was warranted because of certain responses on the intake booking sheet, and because the defendant had recently indicated he was taking certain medications.

This Court noted that the defendant did not present any medical or testimonial evidence in support of his motion, nor did he request a hearing on the motion. It also noted that the defendant conversed intelligently with the trial court and defense counsel at various stages of the proceedings. Accordingly, this Court concluded that the trial court did not abuse its discretion in denying the motion, and that defense counsel did not meet his burden of proof of calling the defendant’s ability to proceed into question.

The defendant argues that the instant case differs from Washington because there was no hearing in Washington, whereas in this case, there was a hearing in which the defendant’s claim that he had competency issues was corroborated. The defendant asserts that his statements at the hearing were evidence of his inability to understand certain aspects of the criminal proceedings.

114The defendant is correct that the defendant in Washington did not request a hearing. However, we find that Washington is still applicable to the instant case, because the defendants in both cases did not introduce any medical or other evidence in support of their motions.

The trial court also cited State v. Ellis, 555 So.2d 608 (La.App. 4 Cir.1989), in support of its denial of the defendant’s motion to appoint sanity commission. In Ellis, supra at 609-610, after the jury was sworn and excused, defense counsel moved for a mistrial after informing the court that the defendant and his mother had just apprised him that defendant had a prior mental history, and that he had seen a psychiatrist. Defense counsel also argued that he had little time to prepare the defense, and that he needed time to investigate the insanity defense. The trial court denied the defendant’s motion for a mistrial.

The appellate court noted that there was no evidence of the defendant’s incapacity other than defense counsel’s statements. It stated that such self-serving statements of a defendant and his mother in the form of hearsay did not provide reasonable grounds to doubt the defendant’s capacity, and that the trial court did not abuse its discretion in denying the motion. The appellate court also found that the defendant’s argument as to lack of time to prepare a defense was not persuasive, that he had not filed a motion to continue the case or a motion for a new trial, and that he raised the defendant’s mental capacity without making any effort to support or develop the issue. Id. at 610.

The defendant contends that Ellis differs from the instant case. He asserts that in the instant case, unlike in Ellis, defense counsel did not wait until the jury was empanelled but raised the issue to the trial court the day prior to trial. It is true that the defendant moved for a sanity hearing before the jury was empanelled, rather than after, as was done in Ellis. However, that distinction is minor and irrelevant to the issue of whether the trial court in the instant, case erred in denying |1sthe motion to appoint a sanity commission. In both cases, the defendants did not present any medical evidence in support of their motions. Contrary to the defendant’s assertions, Ellis is similar to and applicable to the instant case.

In sum, the record indicates that there was no evidence introduced to support the defendant’s allegations of mental incapacity, other than the statement by defense counsel in the motion to appoint sanity commission that the defendant had a documented history of paranoid schizophrenia. Further, the defendant’s statements at the hearing do not support his allegation of mental incapacity to proceed, since the trial judge explained that the defendant’s responses were typical of other defendants. Based on the foregoing, we find that the trial court did not abuse its discretion in denying the defense mo: tion to appoint a sanity commission, and that defense counsel did not meet his burden of proof of calling the defendant’s ability to proceed into question. Accords ingly, this assignment of error is without merit.

In his third assignment of error, the defendant argues that his 47-year multiple offender sentence is constitutionally excessive. He alleges that the trial court erred in failing to comply with the provisions of LSA-C.Cr.P. art. 894.1. He contends that, although the trial court ordered a pre-sentence investigation (PSI), there was no mention in the record that the PSI was provided to the court for sentencing, or that the PSI was considered in the sentencing.

The defendant asserts that there were no aggravating factors to justify the harsh sentence, that some murderers and rapists get shorter sentences, that he was arrested peacefully, that there was no violence or threats made during the transaction, and that there were no allegations of weapons being involved in the transaction, or of the defendant being in possession of a weapon. The defendant notes that he is not a violent criminal who needs to be locked away from society |1fifor the rest of his life, but that he is a likely schizophrenic who needs psychiatric help and drug treatment which he will not likely receive in prison.

The defendant orally objected to the excessiveness of the sentence at the sentencing hearing, but he did not urge any specific grounds in support of his objection. Additionally, he failed to file a motion for reconsideration as required by LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional ex-cessiveness. State v. Hester, 99-426, p. 10 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. A-sentence is constitutionally excessive, even if it is within the statutory limits, if it is' grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. Id. Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.

In the instant case, the defendant was convicted of distribution of cocaine and found to be a second felony offender. His sentencing exposure, as a result of the enhancement, was a minimum of 15 years to a maximum of 60 years. LSA-fR.S.1v 40:967(B)(4)(b); and LSA-R.S. 15:529.1(A)(l)(a). Thus, his 47-year sentence fell within the upper limits of the sentencing range.

The trial judge gave the following reasons for sentencing:

Having considered all that has come into play this day and in consideration of the various mitigating and aggravating circumstances that were evident in the trial in this jurisdiction, it’s my sentence today, after considering those factors as set forth in the Code of Criminal Procedure, with particularity I will not go into great detail at this time with the type of offense that particularly concerns me [sic]. The fact that it’s a second offense in the same family, essentially an escalation of the offense being that the first one I believe was possession of a drug and now he’s graduated to distribution in this offense [sic].

The defendant states in his brief that the trial court ordered a PSI that was returnable on August 21, 2001, but that there was no mention in the record that the PSI was provided to the court for sentencing, nor any méntion that the trial judge considered the PSI prior to sentencing. The record reflects that the trial judge ordered the Department of Corrections to conduct a pre-sentence investigation and to forward the PSI report to the court no later than August 21, 2001. The record does not reflect that the trial judge received or reviewed the record. However, the defendant did not bring this issue to the trial court’s attention at sentencing. Accordingly, this issue has not been preserved for appellate review. LSA-C.Cr.P. art. 841.

The record reflects that the defendant had a previous conviction for possession of cocaine, and that the conviction for distribution of cocaine, the underlying offense, showed an escalation of the defendant’s behavior. Furthermore, the videotape of the incident and the matchbox providing the defendant’s phone number to the undercover officer indicate that the transaction involved in this case was not one isolated incident of drug distribution. Although there have been cases where defendants in similar situations have received lighter sentences, the sentence imposed by the trial court was within the statutory range | isand was 13 years less than the maximum he could have received. Considering the record before us and the great discretion afforded to a trial judge in sentencing, we cannot say that the trial court abused its discretion in sentencing the defendant as a second felony offender to 47 years at hard labor. Accordingly, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error requiring corrective action.

The trial judge informed the defendant that he had two years in which to file a petition for post-conviction relief; however, he stated that the time would begin to run “when the sentence of the judgment becomes final.” LSA-C.Cr.P. art. 930.8 provides that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final.

We are unable to ascertain whether the trial court incorrectly informed the defendant of the time when the prescriptive period for post-conviction relief begins to run or whether the transcript simply contains a typographical error. In an abundance of caution, we remand the case and order the trial court to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings,

h ^DECREE

For the reasons set forth above, we affirm the defendant’s conviction and sentence. We remand the matter and order the trial court to send written notice to the defendant of the prescriptive period for filing post-conviction relief.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

EDWARDS, J., concurs in part and dissents in part.

LEPWARDS, J.,

concurs in part and dissents in part.

I concur in the majority opinion affirming Stewart’s conviction. However, I respectfully disagree from the majority opinion which finds no excessiveness in Stewart’s sentence of 47 years as a second felony offender.

This Court has previously affirmed sentences in the lower range for defendants in similar cases, where a defendant’s conviction for distribution was preceded by a conviction for simple possession. See State v. Anderson, 01-789 (La.App. 5 Cir. 1/15/02), 807 So.2d 956; writ denied, 2002-0569 (La.1/24/03), 836 So.2d 42. Even taking into account the trial court’s finding that Stewart’s second conviction was an “escalation” of an offense within the same “family” of drug offenses, I find that a lesser sentence was warranted under the facts of the present case.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . During voir dire, Mr. Beauchamp stated that he was an Assistant Attorney General for the Louisiana Department of Justice. It is noted that defense counsel used his seventh peremptory challenge on Mr. Beauchamp.

      . During voir dire, Mr. Kliebert stated that he knew Detective Troy Hidalgo through the Krewe of DuMonde, a carnival club, that he had known Detective Hidalgo for approximately three years, but that he could still be impartial. It is noted that defense counsel used his sixth peremptory challenge on Mr. Kliebert.

      .It appears that the court here is referring to Mr. Beauchamp and Mr. Kliebert.

      . Colbert Cole stated that he had three children, ages 3, 9, and 16. It is unclear from the record whether Mr. Cole was white or black.