author: |.CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Michael BARTLEY.
    No. 03-KA-1382.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Ralph C. Cox, III, Assistant District Attorneys, Gretna, LA, for Appellee.
    Arcenious F. Armond, Jr., Gretna, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   |.CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

The Jefferson Parish District Attorney filed a bill of information charging the defendant, Michael Bartley, with distributing cocaine within 1000 feet of Ames Elementary School, a violation of LSA-R.S. 40:981.3. The defendant pled not guilty at arraignment.

On June 26, 2003, the trial judge denied defendant’s motions to continue the trial, to quash the bill of information, and to suppress the identification. Thereafter, defendant proceeded to trial before a twelve-person jury, which found defendant guilty as charged. On July 25, 2003, the trial judge sentenced defendant to 22}6 years of imprisonment at hard labor, with the first two years of the sentence to be served without benefit of parole, probation or suspension of sentence. That same day, the State filed a multiple offender bill of information alleging defendant to be a third felony offender. The defendant entered a plea of “not guilty.” However, on November 14, 2003, defendant stipulated that he was a ^second felony offender after being advised of his multiple offender rights. The original sentence was vacated and the trial judge 'imposed a multiple offender sentence of 22/6 years at hard labor without benefit of probation or suspension of sentence. Defendant then filed this timely appeal.

FACTS

On February 8, 2001, Agent Kim Blanche, whose undercover name was Louise Stone, was driving an unmarked vehicle equipped with video recording equipment and an audio transmitter. Agent Blanche was in the 6200 block of Field Street in Marrero when a black male flagged her down. When she stopped the car, Agent Blanche asked for two “twenties,” which is two pieces of crack cocaine. The man, who referred to himself as “Big Mike,” told Agent Blanche that he would get it for her. The man walked away, and returned a few moments later with objects admitted into evidence as State’s Exhibit 1. Forensic expert Charles Krone testified that the objects were two rocks that weighed .2 grams and tested positive for cocaine. Agent Blanche said she did not measure the distance from the school to the location of the purchase, but she said that the school was directly behind Field Street.

After the transaction, Agent Blanche went to a pre-arranged location and turned the evidence over to Agent Lisa Thornton, who performed a field test on the substance, which was positive for the presence of cocaine. Later, Agent Thornton watched the videotape of the undercover transaction and recognized defendant as the seller of the crack cocaine. Agent Thornton compiled a photographic lineup, which she showed to Agent Blanche. Agent Blanche positively identified defendant both in a photographic lineup conducted after the transaction and at trial as the individual from whom he purchased the cocaine. Finally, Agent Thornton testified that she and Agent Blanche went to the scene the week before trial and 14determined that the distance from the drug purchase to the school property was 143.5 feet.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial judge improperly denied his motion to continue the trial because his attorney was unprepared for trial. On the day of trial, June 26, 2003, defense counsel made an oral motion to continue the trial because he was unprepared, discovery had not been satisfied, and the defense motions to quash and suppress identification had not been heard. Defense counsel asserted that he was retained only two days before trial and needed additional time to prepare a defense. The prosecutor responded that the continuance was a delay tactic and that defendant had received open file discovery. Further, the prosecutor argued that the transaction was recorded on videotape and that the matter was a simple case. After hearing argument on the motion to continue, the trial judge denied the motion.

A motion for a continuance must be made in writing within seven days prior to trial and allege the specific grounds upon which it is based. LSA-C.Cr.P. art. 707. Nevertheless, when circumstances producing the motion for continuance occur unexpectedly and there is no opportunity to prepare a written motion, there is a jurisprudential exception to the requirement for a written motion. State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 68, writ denied, 98-264 (La.6/19/98), 719 So.2d 481, citing, State v. Malinda, 95-292 (La.App. 5 Cir. 10/31/95), 663 So.2d 882, 886. Further, in the interests of justice, the trial court may grant a continuance upon written motion at any time after a contradictory hearing.

In State v. Winfrey, supra, this Court found that defendant had not preserved the denial of his oral motion for continuance because no unexpected circumstances arose to prevent the filing of the written motion. In State v. Malinda, supra, this 1 ¡¡Court found that defendant should have filed a written motion, but nonetheless reviewed the denial of the motion to continue in an abundance of caution.

Considering that defense counsel accepted the case two days before the case proceeded to trial, we find that there were no unexpected circumstances that prevented defendant from filing a written motion to continue. However, we will review the denial of the motion to continue in an abundance of caution, as in Malinda.

The granting of a continuance is discretionary on the part of the trial judge. LSA-C.Cr.P. art. 712; State v. Kelly, 96-903 (La.App. 5 Cir. 11/12/97), 704 So.2d 800, 807-808, writ denied, 97-3104 (La.4/9/98), 717 So.2d 1142. The denial of a motion for continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice. State v. Kelly, 704 So.2d at 807-808.

In support of his argument, defendant cites State v. Hayes, 95-1170 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, State v. Brooks, 452 So.2d 149 (La.1984), and State v. Laugand, 99-1124, 99-1327 (La.3/17/00), 759 So.2d 34. In Hayes, the court reversed the defendant’s conviction because the trial judge had not obtained a valid waiver of the defendant’s right to counsel. In that case, the court appointed an attorney to represent defendant during voir dire, but the court limited the assistance to voir dire only. Throughout trial, defendant continually requested the assistance of counsel, but the trial judge refused his request.

In State v. Brooks, the Supreme Court held that the trial judge did not abuse his discretion in denying the motion to continue by retained counsel, who entered the case three days before trial. The Supreme Court noted that defendant’s attorney had access to the files of his predecessor and that there was no showing that any new evidence or witnesses would have been found with additional time to prepare for trial. Specifically, the Brooks court stated that it is within the realm of a trial court’s discretion “[t]o refuse to allow defendant to delay his trial by | ^changing attorneys three days before trial, where the change was unnecessary and resulted in no prejudice to defendant....” Id. at 151.

On rehearing, the Brooks court stated that the denial of the continuance was within the court’s discretion, but found that defense counsel’s failure to participate on defendant’s behalf denied the defendant’ right to counsel. The conduct of counsel was so egregious in Brooks, that the Supreme Court noted that the failure of defendant’s attorney to participate in the trial was a constitutional deficiency that was discoverable by an inspection of the proceedings. Id. at 155.

Finally, in State v. Laugand, the Supreme Court reversed defendant’s conviction because the trial judge erroneously denied a motion to continue on the basis that counsel was unprepared. The court noted that Laugand’s counsel was “physically available to try the ease” and “he did not stand mute after the trial court denied his motion for a continuance but cross-examined the State’s witnesses and argued the case to jurors at the close of evidence.” State v. Laugand, 759 So.2d at 36. However, the court found reversible error in the denial of the motion to continue because the record showed that defendant’s counsel had not prepared and the trial court had to intervene to stop defendant’s counsel from pursuing matters directly adverse to the defendant’s interests. The court further found that defendant’s counsel had failed to complete other tasks essential to the defendant’s case. Id.

Unlike the defendant in Hayes, defendant in the present case was represented by counsel throughout the entire trial. And, unlike Brooks and Laugand, the defendant’s attorney cross-examined witnesses at great length and did not pursue any theories that were adverse to defendant’s interests. Rather, the instant case is similar to State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, 791, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666, in which this Court found no prejudice in the trial court’s denial of a motion to continue. In^¡Williams, defendant secured two continuances with his first attorney. The day of trial, defendant’s new attorney requested a continuance and the matter was continued one day. The next day, counsel re-urged the motion on the basis that she had scheduling conflicts, that she was newly retained and needed additional time to prepare a defense. This Court held that the trial court did not abuse its discretion in denying the defendant’s motion to continue, noting that there was a three-month period between the time of defendant’s arraignment and the trial date in which defendant could have found other counsel. Further, the Williams court found that the record disclosed no prejudice to the defendant. Id. at 790-791.

In this case, the matter was continued twice on the defendant’s motion between arraignment on April 10, 2003 and the trial date on June 26, 2003 when retained counsel Frank Larre orally moved to continue the trial. Similar to Williams, defendant had a two-month period between arraignment and trial to retain the counsel of his choice. Further, Mr. Larre was prepared to defend the case. He cross-examined the State’s witnesses, and gave opening and closing statements that indicated he was familiar with the case. He crafted a defense that pointed out the weaknesses in the State’s case, particularly the discrepancies between the testimony of Agent Thornton and Agent Blanche regarding measuring the distance between the transaction and the school. Further, the defense did not proffer any evidence to show how its strategy would have been any different had the trial court granted a continuance.

Under these circumstances, we find the trial court did not abuse its discretion in denying the motion to continue.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the trial judge improperly denied his motion to quash the bill of information because of the prejudicial delay between the offense and the filing of the bill of information. The charged offense occurred on February |s8, 2001 and the record contains several different dates regarding the defendant’s arrest. In the motion to quash, defendant asserts that he was arrested for this offense in November of 1999. At the hearing on the motion to quash, the defendant stated that he was arrested in 2003, but that he had been in custody since 1999. At the hearing, the State responded that a warrant for the defendant’s arrest was signed on May 17, 2001. Further, the State responded that the delay in the filing of the information was due to the fact that defendant “was not arrested and booked on this particular charge; therefore, the Jefferson Parish Narcotics Section did not send this report to the District Attorney’s Office.” Upon receiving the report, the State filed the bill of information. After these arguments, the trial judge denied the motion to quash.

, According to LSA-C.Cr.P. art. 571, prosecution must be instituted within six years for a felony necessarily punishable at hard labor. Since the charged offense is necessarily punishable at hard labor, the bill of information had to be filed within six years of February 8, 2001. Considering that the bill of information was filed on March 18, 2003, the prosecution was timely instituted under the statute.

A defendant’s constitutional due process rights may still be violated by a pre-indictment delay, even though the prosecution is within the statutory time limits. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Manon, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). But, the issue of a pre-indictment delay does not arise under the speedy trial provisions of the Louisiana or United States Constitutions, but under the fundamental rights to due process and a fair trial. State v. Schrader, 518 So.2d 1024, 1027 (La.1988); State v. Malvo, 357 So.2d 1084, 1085 (La. 1978). The proper approach in determining whether an accused has been denied due process of law through a pre-indictment or pre-arrest delay is to measure the government’s | trustifications for the delay against the degree of prejudice suffered by the accused. State v. Malvo, 357 So.2d at 1087.

Louisiana courts have recognized that even substantial pre-indictment delays may not violate a defendant’s due process rights. In State v. Schrader, supra, the Louisiana Supreme Court held that the defendant did not suffer a due process violation, despite the fact that 15 years had passed from the date of the offense until the date of defendant’s arrest and indictment for murder. In reaching this conclusion, the Schrader court stated that the defendant did not show that the delay resulted in actual prejudice and that there was no showing the State had delayed the prosecution in order to gain a tactical advantage. State v. Schrader, 518 So.2d at 1027.

In State v. Lewis, 01-1084 (La.App. 5 Cir. 3/13/02), 815 So.2d 166, 177-178, writ denied, 02-1053 (La.11/15/02), 829 So.2d 424, this Court held that defendant’s due process rights were not violated by a five and one-half year delay between the offense and the indictment. Even though the State’s explanation for the delay was “vague,” this Court found that there was no evidence that the State deliberately delayed to gain a tactical advantage over the defense. Further, this Court found that defendant had not shown that he was prejudiced by the delay.

As in the foregoing cases, we find the defendant’s due process rights were not violated by the twenty-five month period between the offense and the filing of the bill of information. The State explained that the delay was because the defendant had not been arrested on the present charges. Thus, there is no evidence that the State deliberately delayed to gain a tactical advantage over defendant. Further, the defendant did not suffer any prejudice. At the hearing, defendant asserted that the delay hampered his ability to find witnesses to provide a defense of simple possession and to establish an alibi defense. Considering that the | ^transaction was captured on videotape, it is doubtful that defendant could have established an alibi or a simple possession defense.

Based on the foregoing, we find the trial judge did not err in denying defendant’s motion to quash the bill of information.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant contends he was denied effective assistance of counsel and due process of law because the trial judge erred in denying defendant written responses to discovery. Defendant acknowledges that he received open file discovery, but asserts that the discovery was not complete because the file did not contain “[pjhotographs, video tapes, and a supplemental police report.” Specifically, defendant contends that he was prejudiced by the late disclosure of the supplemental police report, during Agent Thornton’s testimony, which contained the distance between the school and the transaction.

According to LSA-C.Cr.P. art. 718, the court shall order the district attorney to permit the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce documents and tangible objects that are within the possession, custody, or control of the State, and that are intended for use by the State as evidence at the trial.

Discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony to perniit the defense to meet the State’s case, and to allow proper assessment of the strength of its evidence in preparing a defense. State v. Harris, 00-3459, pp. 8-9 (La.2/26/02), 812 So.2d 612, 617. In the event of a discovery violation, the court may order the party to permit the discovery, may grant a continuance, may order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate. LSA-C.Cr.P. art. 729.5(A). However, a conviction will not be reversed on the basis of the State’s ^discovery violation unless prejudice is shown. State v. Harris, supra. Further, a trial judge has the discretion to choose an appropriate remedy for a discovery violation. State v. Bourque, 96-842 (La.7/1/97), 699 So.2d 1, 11, cert. denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998).

Defendant’s chief complaint is that he was prejudiced by the State’s late disclosure of the supplemental police report that contained the distance between the location of the transaction and Ames Elementary School. On direct examination at trial, Agent Thornton testified that the distance between the school and the transaction was 143.5 feet. During Agent Thornton’s cross-examination, defense counsel inquired whether she had written a report detailing the distance she had measured. When she replied affirmatively, Mr. Larre stated he had not received the document. Agent Thornton replied that she had written the report the week before and she did not give it to the district attorney’s office on the day she prepared it. On redirect, Agent Thornton testified that the document was with the physical evidence that others brought to court that day. The State moved to admit the document into evidence because the defense had implied that the State withheld information from the defense.

The minute entry of May 9, 2003 indicates that the State provided open file discovery and it was “marked satisfied.” On May 12, 2003, the defendant, through appointed counsel, filed a written motion for discovery seeking, among other things, the initial police report and to inspect, examine, test, or photograph, books, photographs, tangible objects, which were within the possession, custody, or control of the State, and which were intended for use by the State as evidence at the trial pursuant to LSA-C.Cr.P. art. 718. That motion was set for a hearing on May 19, 2003, but the defense requested a continuance for that day.

The motion was re-urged on the day of trial by defendant’s retained counsel, Mr. Larre. The prosecutor then stated that copies of all of the documents in the |12State’s file had been given to Mr. Larre’s predecessor, Mr. Nolting, who had signed the State’s file. However, Mr. Larre asserted that while his predecessor may have viewed the State’s file, he did not. Following a discussion off the record, Mr. Larre requested open file discovery, or alternatively, that the prosecutor be precluded from presenting any evidence that was referenced in the Motion for Discovery.

The prosecutor then offered to provide open file discovery to Mr. Larre and to furnish copies of the police report and lab report. The court stated that the prosecutor was offering “open file,” and it was up to Mr. Larre whether he read it or not. The court also stated that the prosecutor was making a copy of the police report. Mr. Larre objected to accepting open file discovery in lieu of having the State provide written responses.

Mr. Larre- further objected because he had been told that items such as diagrams, pictures and measurements were not in the State’s file and would be used at trial. The prosecutor responded that one or more officers had measured the location from the school to the transaction, and offered to show Mr. Larre these documents and photographs prior to the start of trial. The defense continued to object to the admission of items that were not in the State’s file during open file discovery by Mr. Nolting, but the trial judge overruled the objection and denied the motions.

Based upon the above, we find that the defendant was not surprised by evidence regarding the distance between the school and the transaction. The pre-trial exchange reflects that Mr. Larre knew that the State would be presenting measurement evidence. Although Mr. Larre may not have seen the supplemental report before trial, the record reflects that Agent Thornton handed the report to him during her testimony, and Mr. Larre cross-examined Agent Thornton about the report. Further, the report, which is a one-page document containing | ^approximately one and one-half paragraphs of text, is cumulative of Agent Thornton’s testimony.

Thus, we find the defendant was not denied effective assistance of counsel or due process of law because of the denial of written responses to discovery.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant next contends that the State did not prove beyond a reasonable doubt that he is guilty of distribution of cocaine within 1000 feet of a school. He argues that the evidence was legally insuf-fícient to support his conviction because Agent Thornton’s testimony regarding the distance between the transaction and the school was not credible.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

LSA-R.S. 40:981.3(A)(1) prohibits certain violations of the Uniform Controlled Dangerous Substances Law within 1000 feet of school property as follows:

(1) Any person who violates a felony provision of R.S. 40:966 through 970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E.
C. For purposes of this Section:
(1) “School” means any public or private elementary, secondary, vocational-technical school, or any public or private college or university in Louisiana.
| u(2) “School property” means all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks.

Defendant contends that his conviction should be reversed, citing State v. Hall, 02-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488. However, in Hall there was no evidence of the distance from the school to the location where the transaction took place. In Hall, the State had introduced a map of the area showing defendant’s location with respect to the school, but the map did not contain the distance from the school and no witness stated the distance. Thus, the Fourth Circuit court reversed the defendant’s conviction.

In the present case, evidence was presented showing the distance between the school property and the location of the transaction. Agent Thornton testified that, sometime during the week before trial, she and Agent Blanche measured the distance between the property line of Ames Elementary School and the location of the drug transaction. According to Agent Thornton, the distance measured 143.5 feet. Additionally, Agent Thornton identified the location of the transaction at 6200 Field Street and the school property on an aerial photograph and testified that the distance between those points was 143.5 feet. Agent Thornton explained that the officers did not take the measurement in February 2001 because the school was “well within” 1,000 feet of the transaction.

Agent Blanche did not state a distance between the transaction and the school, but she said that Ames Elementary was “directly behind Field Street” and that some of the houses’ backyards connected to the school’s playground. Further, on defense counsel’s request, Agent Blanche drew a diagram of the area and the location of the transaction.

11SAgent Thornton’s testimony is the sole evidence of the distance between the transaction and the school. Although Agent Blanche testified about the location, she did not state a distance between the school and the transaction. While the testimony of Agent Thornton and Blanche differed in regards to measuring the distance, the jury obviously believed Agent Thornton and resolved any conflicts in favor of the State.

Thus, we find that rational jurors, viewing the evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that the defendant was guilty of distribution of cocaine within 1000 feet of a school.

ASSIGNMENT OF ERROR NUMBER FIVE

The defendant argues that the trial court improperly denied his motion to suppress the identification because the photographic lineup was suggestive and resulted in a substantial likelihood of mis-identification.

A defendant challenging an identification procedure must prove that the identification was suggestive and that there was a substantial likelihood of mis-identifieation. State v. Lowenfield, 495 So.2d 1245, 1253 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986); State v. Mills, 01-110, p. 10 (La.App. 5 Cir. 6/27/01), 790 So.2d 102, 106-107.

Fairness is the standard of review for identification procedures and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977). The factors to be considered in assessing reliability were initially set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and approved in Manson v. Brathwaite, supra. They include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the hfitime between the crime and the confrontation. Any corrupting effect of a suggestive identification procedure is to be weighed against these factors. Manson v. Brathwaite, supra; State v. Martin, 595 So.2d 592, 595 (La.1992).

In determining whether the ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the hearing on the motion to suppress but may also consider pertinent evidence given at the trial. State v. Burkhalter, 428 So.2d 449 (La. 1983); State v. Higgins, 01-368, p. 5 (La. App. 5 Cir. 10/17/01), 800 So.2d 918, 921, writ denied, 01-3267 (La.11/1/02), 828 So.2d 565, cert. denied, 538 U.S. 1038, 123 S.Ct. 2082, 155 L.Ed.2d 1070 (2003).

The defendant contends that the identification was unduly suggestive because his face is larger in his photograph than the faces of all of the men in the lineup. An identification procedure is suggestive if it unduly focuses a witness’ attention on the suspect. Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. State v. Bright, 98-398, p. 17 (La.4/11/00), 776 So.2d 1134, 1145. This determination is made by examining artic-ulable features of the pictures or persons used such as height, weight, build, hair color, facial hair, skin color and complexion, and the shape and size of the nose, eyes, and lips. State v. Guillot, 353 So.2d 1005, 1008 (La.1977).

In State v. Johnson, 00-680 (La.App. 1 Cir. 12/22/00), 775 So.2d 670, writ denied, 02-1368 (La.5/30/03), 845 So.2d 1066, the court rejected the defendant’s claim that the photographic lineup was suggestive because his head was larger and the photograph was brighter than any of the other photographs. After examining the six-picture photo array, the court observed that the pictures were all the same size. The court noted that defendant’s photograph was on the bottom row. Although his head was larger than the other two pictures on the bottom row, his head was the same size as the three pictures on the top row. The court stated that |17the differences in the sizes of the heads was explained by the fact the pictures of defendant and the three men on the top row showed only the head and neck for each man and were more of a close-up view than the other two pictures, which included the upper shoulders for those two men. Further, the court observed that the officers used a computer to select the photographs of men with similar characteristics. Even though defendant’s photograph was slightly brighter, the court found that it was not noticeably different in skin color. After examining the array and considering the preparation of the lineup and the manner in which it was conducted, the court found that it was not suggestive. State v. Johnson, 775 So.2d at 679.

It does not appear that the photographic lineup in this ease was suggestive because of the difference in the photographs. The defendant’s photograph is in the middle of the top row. All of the photographs depict black men of similar age, weight, skin col- or, hairstyle and facial features. All of the pictures are the same size, but defendant’s head is slightly larger than the heads of other men. However, as in Johnson, this difference seems to be due to the fact that the photograph was taken closer than the surrounding photographs.

At trial, Agent Thornton testified that her focus was to match the characteristics of the individuals in the photographs. Agent Thornton acknowledged that she printed out approximately one thousand photographs from the computer when compiling the lineup. At the suppression hearing, Agent Thornton stated that she could not find five photographs that were photographed in the manner of defendant’s picture.

Defendant also asserts that the lineup was suggestive because Agent Blanche testified that Agent Thornton told her that the suspect was in the lineup. On re-direct examination at the suppression hearing, Agent Blanche testified that Agent 11sFleming had not indicated to her that the person on the video tape was in the lineup.

At the suppression hearing, Agent Thornton said that the only question she asked Agent Blanche when viewing the lineup was, “ ‘Do you see the Defendant that sold you narcotics on the — on this line-up.’ ”

Defendant argued that Agent Blanche’s responses indicated that she had been told that the suspect was in the lineup. However, the prosecutor replied that the defense had misunderstood Agent Blanche, and the trial judge agreed. The suppression hearing and trial testimony of both officers supports the judge’s conclusion that Agent Blanche was not told that the suspect was in the lineup. We find that the identification was not suggestive.

In addition, we find there was no substantive likelihood of misidentification. It is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness. State v. Every, 96-185, p. 9 (La.App. 5 Cir. 7/30/96), 678 So.2d 952, 957. Applying the factors in Manson v. Brathwaite, supra, there was not a substantial likelihood of misidentifi-cation. Agent Blanche’s testimony at the suppression hearing and at trial demonstrates that she had an ample opportunity to view the person who sold the narcotics. She said that he approached her car after signaling for her to stop and again when he returned with the cocaine. The videotape of the incident introduced at trial supports her testimony. Further, Agent Blanche testified that only two transactions are conducted per day. Agent Blanche immediately identified defendant’s photograph when she viewed the lineup on February 12, 2001, only four days after the transaction. Agent Blanche testified at the hearing and at trial that she was very certain of her identification when she chose defendant’s photograph from the lineup. Therefore, we find that the trial judge did not err in denying the motion to suppress identification.

| ^ASSIGNMENT OF ERROR NUMBER SIX (ERROR PATENT)

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). One error patent is presented for review.

The transcript of original sentencing reflects that defendant entered a “plea of not guilty” to the multiple bill, while the commitment is silent. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983); State v. Haynes, 96-84 (La.App. 5 Cir. 6/25/96), 676 So.2d 1120, 1123. Accordingly, we remand the matter to allow the trial judge to correct the commitment to reflect that defendant denied the allegations in the multiple bill.

In accordance with the above, we affirm defendant’s conviction and remand the matter to the trial court for correction of the commitment as discussed above.

AFFIRMED AND REMANDED.

      . This article was amended after February 8, 2001, the date of the instant offense. However, these amendments do not pertain to defendant's case.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Claude ROBINSON.
    No. 03-KA-1350.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Walter G. Amstutz, Cameron M. Mary, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   j .EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Claude Robinson, with one count of felon in possession of a firearm in violation of LSA-R.S. 14:95.1; one count of possession of a firearm while in possession of a controlled dangerous substance in violation of LSA-R.S. 14:95(E); one count of possession of MDMA in violation of LSA-R.S. 40:966(C); one count of possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A); and one count of possession of cocaine between 28 and 200 grams in violation of LSA-R.S. dO^GTCF). Defendant pled not guilty and filed several pre-trial motions, including a motion to suppress the evidence. After a hearing on September 7, 2001, the trial court denied defendant’s motion to suppress.

Thereafter, defense counsel filed a motion for a sanity commission. A sanity hearing was held on October 31, 2001, at which time defendant was found incompetent to stand trial. A second sanity hearing was held approximately one year later on October 23, 2002, after which defendant was found competent for trial.

|aOn June 17, 2003, defendant proceeded to trial on the charge of possession with intent to distribute cocaine. After a two day trial, a twelve person jury found defendant guilty as charged. The trial judge subsequently sentenced him to twenty-five years at hard labor. The state dismissed the remaining four counts against defendant and filed a multiple offender bill of information alleging defendant to be a fourth felony offender. The multiple offender hearing is currently pending.

Defendant now appeals his conviction challenging the denial of his motion to suppress the evidence.

FACTS

On February 9, 2001, Agent Todd Vignes obtained a search warrant for 634 Second Avenue in Harvey based on information that defendant was involved in narcotics activity at that location. The warrant was executed at approximately 11:50 p.m. on the same date. Agent Vignes, along with six or seven additional narcotics officers, quietly approached the specified residence wearing either black T-shirts or blue wind breakers bearing the POLICE insignia. Once on the porch, Agent Vignes heard people inside the home talking. The voices stopped and Agent Vignes saw someone look outside through the side panel window of the door. Agent Vignes then heard someone yell inside the home and heard scurrying movement away from the door and front room. Concerned the occupants of the home knew of the police presence and the probability they would destroy the evidence or obtain a weapon, Agent Vignes authorized immediate entry into the home.

A battering ram was used on the front door to gain access. When the battering ram first hit the door, Agent Vignes announced, “police with search warrant.” After approximately three hits, the police were able to enter the home which was a shotgun double. Four people were in the home including defendant |4who was found in the kitchen at the back of the house. As Agent Vignes approached defendant, he observed defendant reach into a Crown Royal bag, pull out a brown pill bottle, and attempt to open the pill bottle and discard its contents down the kitchen sink drain. When Agent Vignes reached defendant, defendant shoved the pill bottle into his sweat pants.

Defendant was subsequently arrested and the pill bottle was seized from his pants. The pill bottle contained five clear plastic bags each containing off-white rocks that later tested positive for cocaine. A search of the home revealed $1,300, which was found in a brown sock in the Crown Royal bag, razor blades, and plastic baggies with the corners removed. According to Agent Vignes, defendant stated that he lived at the residence alone and any drugs found belonged to him.

Defendant presented the two co-defendants, Eric Homrich and Chiro Chimento, as witnesses at trial. Both witnesses, who had already pled guilty to the drug charges related to the incident, testified the drugs and the money belonged to Homrich.

DENIAL OF MOTION TO SUPPRESS

On appeal, defendant argues that the trial court erred in denying his motion to suppress the evidence on two grounds: 1) the search warrant was invalid, and 2) the search was unreasonable. Defendant maintains the search warrant was not based on probable cause because the information upon which it was based came from an unknown, unidentified, and untested informant who passed the information to an alleged reliable and credible informant who then gave the information to the police. Defendant also contends there was minimal corroboration of the information given by the informant. Defendant further asserts the search was unreasonable because the police entered the residence without knocking and announcing.

| sEvery person is protected by the United States and Louisiana Constitutions against unreasonable searches and seizures of his house, papers and effects. Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and thing(s) to be seized. U.S. Const, amend. IV; La. Const, art. I, § 5 (1974); State v. Lipton, 02-162 (La.App. 5 Cir. 9/30/03), 857 So.2d 1162, 1164.

In order to be valid, “[a] search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.” LSA-C.Cr.P. art. 162. Probable cause consists of facts and circumstances sufficient to support a reasonable belief that an offense has been committed and that evidence of the crime or contraband may be found at the place to be searched. The facts and circumstances must be within the affiant’s knowledge and based upon reasonably trustworthy information. Further, the facts establishing the probable cause must be contained within the four corners of the affidavit. State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, 968-969; State v. Lipton, supra.

The issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exists that the evidence of a crime will be found in a particular place. State v. Green, supra at 969; State v. Lipton, supra at 1165. The magistrate’s determination of probable cause to issue a search warrant is entitled to significant discretion and “marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983). The reviewing court must simply insure that under the totality of the circumstances, the issuing magistrate had a “substantial basis” for concluding that probable cause existed. State v. Green, supra at 969, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

|fiWe must now determine whether the affidavit sufficiently set forth facts and circumstances from which the magistrate could have reasonably concluded that probable cause existed for the issuance of the search warrant. Agent Todd Vignes submitted the application for the search warrant, and his affidavit set forth the following facts: Agent Vignes met with a confidential informant (CI) who told him an older black male was selling crack cocaine from 634 Second Avenue in Harvey. The CI indicated he could not directly purchase anything from the residence but knew another person who could. This person was referred to as the unwitting informant. At Agent Vignes’ direction, the CI contacted the unwitting informant, who agreed to make the purchase. With the Cl’s permission, Agent Vignes listened to a phone conversation between the CI and the unwitting informant wherein the unwitting informant agreed to meet with the CI, proceed to 634 Second Avenue, and purchase cocaine from the occupants at that address using the Cl’s money. The CI and his vehicle were searched for illegal drugs and then the CI was given prerecorded money to facilitate the drug buy.

The affidavit further stated that surveillance was established at 634 Second Avenue and on the CI. During the surveillance, the CI met with the unwitting informant and proceeded to 634 Second Avenue. The unwitting informant entered the residence and exited after approximately two minutes with a quantity of cocaine. When the unwitting informant exited the residence, the Cl observed an older black male looking out of the door. The unwitting informant gave the Cl cocaine and told the Cl the occupants of 634 Second Avenue would be dealing all night. The unwitting informant also told the Cl the black male selling the cocaine was nicknamed “Scooby.” The Cl then dropped the unwitting informant off at a prearranged location. All this occurred while the Cl was under surveillance.

The Cl met with investigators and turned over the purchased drugs which field tested positive for cocaine. During surveillance on the residence, |7investigators noted two vehicles parked in front. Through a license plate check, it was determined one of the vehicles was registered to defendant. Agent Vignes was familiar with defendant and knew he had numerous arrests and at least one conviction for narcotics offenses. Agent Vignes also knew defendant was nicknamed “Scooby” or “Scooby Doo.”

Defendant now argues that the affidavit failed to establish probable cause because the reliability and credibility of the unwitting informant was not proven. He contends the mere fact critical information passed through a reliable and credible confidential informant does not make the original source of the information sufficiently reliable for purposes of establishing probable cause.

Contrary to defendant’s claim, the independent reliability of the unwitting informant is not the issue. Rather, the issue is whether, under the totality of the circumstances, there is a sufficient basis upon which the trial court could have found probable cause to issue the search warrant. While the veracity, reliability or basis of knowledge of a Cl is relevant in evaluating probable cause, it is not the determining factor. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Hogan, 02-924 (La.App. 5 Cir. 1/28/03), 839 So.2d 296, 299.

The initial information that the residence at issue was involved in drug activity came from what Agent Vignes described as a reliable and credible Cl. In the affidavit, Agent Vignes stated the confidential informant had “proven to be both reliable and credible having supplied officers with information and assistance that led to the arrest of numerous narcotics dealers in the past and to the seizure of illegal drugs.” The reliability of the Cl was not traversed.

The affidavit contained further information which corroborated the Cl’s information. The Cl indicated a third party could purchase cocaine from the residence. Agent Vignes corroborated this by listening in on a phone conversation | ¡¡between the Cl and the third party, referred to in the affidavit as the “unwitting informant.” While under surveillance, the third party entered the specified residence, stayed for two minutes and returned to the Cl’s vehicle at which time the third party gave the Cl cocaine and identified the man from whom he purchased the cocaine as “Scoo-by.” The police identified one of the vehicles parked in front of the residence as being registered to defendant, who Agent Vignes knew as “Scooby” or “Scooby Doo.” Agent Vignes was also aware defendant had a prior conviction for a narcotics offense for which he was presently on parole.

Based on the totality of the circumstances, the information from the Cl and corroboration of the information by police surveillance and investigation, we find that the trial court had a substantial basis upon which to find probable cause to issue a search warrant. The affidavit presented preliminary information from a reliable and credible confidential informant that was subsequently corroborated by the police. The fact information from an unknown third party was utilized during the investigation does not render the information unreliable. The information from the third party was that a man named “Scoo-by” sold him the drugs. The truth of this information was supported by further police investigation that revealed a vehicle parked in front of the residence was registered to a man known to have the nickname “Scooby” and who had a prior conviction for a narcotics violation.

Even assuming the affidavit did not establish probable cause to support the issuance of a search warrant, suppression of the evidence seized pursuant to the warrant is not automatically required. Where a law enforcement officer relies in good faith on a magistrate’s probable cause determination and the technical sufficiency of the warrant, exclusion of the evidence is not proper. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984); State v. Hogan, 02-924 (La.App. 5 Cir. 1/28/03), 839 So.2d 296, 299. There are no allegations that the police obtained the warrant in bad faith.

On appeal, defendant also claims the search was unreasonable and, therefore, the evidence should have been suppressed. He maintains the police were not justified in entering his home without knocking and announcing their presence. Defendant contends the occupants’ mere awareness of police presence is insufficient to establish exigent circumstance so as to dispense with knocking and announcing.

An officer who executes a search warrant may use such means and force as is authorized for an arrest. LSA-C.Cr.P. art. 164; State v. Miskell, 98-2146 (La.10/19/99), 748 So.2d 409, 412. LSA-C.Cr.P. art. 224 governs forcible entry when making an arrest and provides that a peace officer making an arrest may break open a door of a dwelling if he has announced his authority and purpose and is refused admittance. Article 224 also provides that the peace officer “need not announce his authority and purpose when to do so would imperil the arrest.”

The United States Supreme Court has held that the Fourth Amendment of the United States Constitution incorporates the common law requirement that police officers must knock on the door and announce their identity and purpose before attempting a forcible entry into a residence to execute a search warrant. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The obligation to knock and announce may be dispensed with when the police officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Whether police officers had reasonable suspicion to justify | innoncompliance with the knock-and-announce requirement is determined by the facts of each ease. Id.

In State v. Miskell, 98-2146 (La.10/19/99), 748 So.2d 409, the Louisiana Supreme Court upheld the district court’s denial of a motion to suppress evidence finding the police officers’ unannounced entry into defendant’s home, by prying burglar bars off the home with a winch and kicking in the front door, was reasonable. In Miskell, the police obtained a search warrant based on information from a confidential informant that an older black man was selling cocaine from his residence and also the detective’s subsequent personal observation of a controlled drug buy at defendant’s residence.

In upholding the reasonableness of the no-knock entry, the supreme court stated, “it is well recognized that a police officer’s past experience, training, and common sense may be considered in determining if the inferences drawn from the facts presented were reasonable.” Miskell, supra at 414. Although the police had no information about weapons or any threat to safety, the supreme court found the no-knock entry reasonable based on the observation of drug sales immediately prior to the execution of the search warrant, the fact the defendant had drugs on his person which could easily be destroyed if advance warning of entry had been given, and the existence of burglar bars on the main entrance to the residence.

In State v. Taylor, 99-1154 (La.App. 5 Cir. 2/29/00), 757 So.2d 63, writ denied, 00-1021 (La.3/30/01), 788 So.2d 441, this court found that the police were reasonable in entering a home without knocking and announcing their presence. In Taylor, the police obtained a search warrant for defendant’s residence based on information from a confidential informant that defendant was selling marijuana l^from his residence. When the police approached the residence to execute the search warrant, an unknown black male ran from the porch. One officer chased the fleeing man while the other officers entered the house through the front screen door which was closed but unlocked.

This court acknowledged that none of the officers could testify that they suspected defendant was armed and thus dangerous, or that they had previous knowledge someone was inside the house destroying evidence. Relying on State v. Miskell, supra, this court stated it had to defer to reasonable inferences drawn from whatever factors the developing situation presented to trained, experienced law enforcement officers. Based on the facts, that a Cl had recently made a drug buy at the residence, the front door of the residence was simply a screen door, and an individual immediately fled from the porch upon the arrival of the police, this court concluded “[i]t does not take trained law enforcement officials to realize that the officers’ duty to ‘announce’ their entry has been otherwise satisfied.” State v. Taylor, 757 So.2d at 71. This court explained these facts would create an inference in experienced officers that as soon as any other occupants of the house identified the source of the noise outside, those remaining would attempt to either escape or destroy the contraband.

In the present case, we find that the no-knock entry was reasonable. Agent Vignes obtained the search warrant at 11:25 p.m. based on information from a confidential Informant that a person inside the residence was selling cocaine, a subsequent controlled drug buy that occurred within three hours of the application for the search warrant, and surveillance. At 11:38 p.m., Agent Vignes and six or seven additional members of the narcotics division executed the search warrant. The police approached the residence in a “stealth like manner” and were dressed in | ^clothes bearing the word “POLICE.” Some of the police officers wore hats with POLICE written on them and Agent Vignes had a ballistic shield with the word “SHERIFF” written on it. Once on the porch, Agent Vignes heard talking which stopped when someone looked out the side window panel of the front door. Agent Vignes heard somebody yell one word and then heard scurrying inside the house away from the front room.

Agent Vignes testified at the hearing on the motion to suppress that he felt the occupants were aware of police presence once one of the occupants looked out the window onto the front porch where the officers, who were dressed in police attire, were standing. He further stated that when one of the occupants made an announcement and ran from the door as opposed to opening the door, he believed the occupants were going to destroy evidence or secure a weapon.

Like the above cases, the officers in this case had no specific information that defendant was armed or that someone was inside the house destroying evidence. However, as stated in State v. Taylor, 757 So.2d at 71, “[i]t does not take trained law enforcement officials to realize that the officers’ duty to ‘announce’ their entry has been ... satisfied.” An occupant of the residence looked out the window and saw the police. Instead of opening the door, the occupant yelled and ran away from the front room. These facts, coupled with the fact a drug buy had occurred within three hours of executing the search warrant, clearly create the inference in the minds of trained and experienced officers that the occupants would attempt to destroy any contraband. Additionally, Agent Vignes knew defendant had prior arrests for attempted first degree murder, aggravated assault, and resisting an officer, all violent offenses. This information created a reasonable inference that defendant could be dangerous and may have weapons at his disposal. Thus, under the circumstances, the no-knock entry was reasonable. The facts show the police had reasonable suspicion to believe evidence within the |13home would have been destroyed and that they faced potential harm if entry had been delayed.

Based on the foregoing discussion, we find that the trial judge did not err in denying defendant’s motion to suppress the evidence. The arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record 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). Our review reveals that the trial judge did not advise defendant of the two-year prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. Thus, the trial court is hereby instructed to inform defendant of the two-year prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received such notice. State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, twits denied, 03-0200 (La.10/10/03), 855 So.2d 326, and 03-0503 (La.10/10/03), 855 So.2d 329.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence. The case is remanded to the trial court with instructions to inform defendant of the prescriptive period for seeking post-conviction relief.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The bill of information also charged co-defendants, Eric Homrich and Chiro Chimen-to, with various counts. However, they are not parties to the instant appeal.

      . It is a defendant’s burden of proof that representations made in an affidavit for a search warrant are false. State v. Hogan, 02-924 (La.App. 5 Cir. 1/28/03), 839 So.2d 296, 299.

      . The United States Supreme Court recently reiterated these principles in United States v.
        Banlcs,-U.S.-, 124 S.Ct. 521, 525, 157 L.Ed.2d 343 (2003). Banlcs was concerned with the reasonableness of the 15-20 second time delay between when the officers knocked and announced until they broke open the door.

      . The issue in Taylor was raised through an ineffective assistance of counsel claim in which defendant claimed his trial counsel was ineffective for failing to object to the manner in which the search of his residence was conducted.

      . In reviewing a ruling on a motion to suppress, the appellate court is not limited to the evidence adduced at the hearing on the motion to suppress but may also consider pertinent evidence given at the trial. State v. Higgins, 01-368 (La.App. 5 Cir. 10/17/01), 800 So.2d 918, 921, writ denied, 01-3267 (La. 11/1/02), 828 So.2d 565, cert. denied, 538 U.S. 1038, 123 S.Ct. 2082, 155 L.Ed.2d 1070 (2003).


author: | ¡.SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Tracy EUGENE.
    No. 03-KA-1336.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Appellant, Tracy Eugene.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark — Appellate Counsel, Donald Rowan — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   | ¡.SUSAN M. CHEHARDY, Judge.

On March 27, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, Tracy Eugene, with two counts of distribution of cocaine in violation of La. R.S. 40:967(A). At his arraignment, defendant entered pleas of not guilty to both counts.

On May 20, 2003, trial on count one commenced and the twelve-person jury unanimously found defendant guilty as charged. On May 22, 2003, defendant pled guilty to the second count of distribution of cocaine. That day, the trial judge sentenced defendant on count two, pursuant to the guilty plea agreement, to five years at hard labor with the first two years to be served without benefit of parole, probation, or suspension of sentence.

On June 27, 2003, the trial judge sentenced defendant on count one of distribution of cocaine to fifteen years with the first two years without benefit of parole, probation, or suspension of sentence. That same day, the Jefferson Parish District Attorney’s Office filed a multiple offender bill of information, which alleged that defendant is a second felony offender based on defendant’s underlying guilty plea on count two of distribution of cocaine and a 1995 conviction for distribution of cocaine. That same day, defendant admitted the allegations 13contained in the multiple bill. The trial judge imposed an enhanced sentence of fifteen years without the benefit of probation or suspension of sentence.

Defendant subsequently filed a motion for appeal seeking review of the May 20, 2003 jury verdict and sentence imposed on June 27, 2003. Defendant has not appealed his conviction for the second count of distribution of cocaine.

Facts

On January 17, 2003, Agent Allen James of the Jefferson Parish Sheriffs Office (“JPSO”), who was working as an undercover narcotics agent, was instructed to attempt a narcotics purchase in Westwego, Louisiana. Agent James was given a $20.00 bill, which had been photocopied by JPSO, and a handheld radio transmitter to allow JPSO surveillance officers to monitor any transactions.

Agent James drove his undercover police vehicle, which was equipped with videotape recording capabilities, to Jackson Street, an area reportedly known for illegal narcotics sales. As Agent James drove through the neighborhood, he saw a man standing on the corner of Jackson Street. Agent James waved the man over to his vehicle and asked the man where he could get a twenty. The man told Agent James to make the block so Agent James drove around the block several times and returned five to ten minutes later.

When Agent James returned, the man, later identified as defendant, gave Agent James an off-white rock-like substance, which later tested positive for cocaine, and Agent James gave defendant $20.00. The entire transaction was recorded on videotape, which was played for the jury at trial.

At trial, Agent James testified that he identified defendant in a photographic lineup four days after the undercover buy. Finally, Agent James also identified defendant at trial as the man that sold him illegal narcotics on January 17, 2003.

In his first assignment of error, defendant argues that “the erroneous denial of several of appellant’s challenges for cause improperly impeded upon appellant’s 14exercise of his fundamental and constitutional right to a jury trial.” Defendant specifically argues the trial court erred in denying three of his challenges for cause during jury selection. First, defendant claims that prospective juror Monique Harlton expressed difficulty with the defendant’s right against self-incrimination. Second, defendant contends that prospective juror Patricia Payton had problems with the State’s burden of proof. Third, defendant maintains that prospective juror Harry Ferreira stated he could not be fair and impartial. Defendant further alleges none of these prospective jurors were rehabilitated. Defendant avers that the error warrants reversal.

La.C.Cr.P. art. 797 provides that a defendant may challenge a juror for cause on the following pertinent grounds:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; [or]
(4) The juror will not accept the law as given to him by the court[.]

A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. However, when a prospective juror has voiced an opinion seemingly prejudicial to the defense, but, after further inquiry (frequently called “rehabilitation”), the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence, a challenge for cause is not warranted. State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 391, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000); State v. Bush, 02-247 (La.App. 5 Cir. 6/26/02), 822 So.2d 859, 865, unit denied, 02-1887 (La.1/24/03), 836 So.2d 42.

The trial court is vested with broad discretion in ruling on challenges for cause and its ruling will only be reversed when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Anthony, 776 So.2d at 391. The trial court has great discretion in ruling on cause challenges because it “ ‘has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning. ...’” Id. at 392 (quoting, in part, State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108).

Prejudice is presumed when a challenge for cause is erroneously denied by the trial court and the defendant has exhausted his peremptory challenges. State v. Anthony, 776 So.2d at 392. To prove there has been error warranting reversal of conviction and sentence, the defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278,1281.

In the present case, defendant exhausted his peremptory challenges and, therefore, he only needs to show that the trial court abused its discretion by denying his challenges for cause. First, defendant claims that prospective juror Monique Harlton expressed difficulty with the defendant’s right against self-incrimination. After voir dire, defendant challenged Ms. Harlton on the basis that she expressed problems with defendant’s right not to testify. The trial court denied the challenge for cause and defendant used a peremptory challenge to exclude her from the jury.

During voir dire, Ms. Harlton stated:

I feel I’d want to hear both sides of the story, because there’s always two sides of the story. But I believe the burden of proof is, you know, with the prosecution. But, you know, my — you know, myself, I understand he doesn’t have to testify. But if you’re put in that position | fiOf breaking the law, you know, you’d want to defend yourself.

Defense counsel then asked Ms. Harlton if it would bother her a little bit if defendant did not testify. Ms. Harlton admitted that defendant’s failure to testify would bother her “a little bit.”

We have reviewed the entire transcript of jury venire and we have found that, on two separate occasions, the prospective jurors collectively responded that they would not hold defendant’s refusal to testify against him. Although Ms. Harlton indicated that she would be “a little bit” bothered if defendant did not testify, she never stated she could not apply the law as given. To the contrary, Ms. Harlton’s responses throughout voir dire demonstrated she understood and could follow the law. Ms. Harlton never stated or gave any indication that she would hold defendant’s failure to testify against him. We find no abuse of the trial court’s discretion in denying defendant’s challenge of Ms. Harlton for cause.

Second, defendant contends that prospective juror Patricia Payton had problems with the State’s burden of proof. After voir dire, defendant challenged Ms. Payton for cause on the basis that she had a family member murdered by someone on drugs and she could not apply the reasonable doubt standard. The trial court denied the challenge for cause and defendant subsequently used a peremptory challenge to exclude Ms. Payton from the jury.

On appeal, defendant challenges the denial of the challenge for cause only on the ground Ms. Payton had a problem with the State’s burden of proving defendant’s guilt beyond a reasonable doubt. At the beginning of voir dire, the trial court explained that the State had the burden of proving defendant’s guilt beyond a reasonable doubt. Collectively, the prospective jurors indicated they could accept the principle of law and no one expressed any concern or problem |7with the State’s burden. The prosecutor then explained in more detail the concepts of defendant’s right against self-incrimination and the State’s burden of proof. Once again, the prospective jurors responded collectively that they would not find defendant guilty if the State did not prove all the elements beyond a reasonable doubt.

Defense counsel then discussed the presumption of innocence. Ms. Payton specifically stated she felt comfortable with affording defendant the presumption of innocence. The prospective jurors, as a group, then indicated they did not have any concerns with the burden of proof. Ms. Payton admitted she would like to hear both sides but expressly stated she could apply the law and not hold it against defendant if he did not testify.

Defense counsel then further questioned the prospective jurors regarding how they would vote if they had some uncertainty with the evidence. Specifically, defense counsel asked, “[i]f you thought something might have happened, if you just had some uncertainty about it and if the law requires you to vote not guilty in that situation, would you be okay with that?” Ms. Pay-ton responded, “Pm really not sure.” Whereupon, a confusing exchange occurred between defense counsel and prospective juror Payton culminating with the following question from defense counsel, “Okay. Now, even if you thought it but they didn’t reach the burden — the beyond a reasonable doubt; so you would have problems with that?” Ms. Payton responded, “Probably.” In denying the challenge for cause, the trial court stated that all the prospective jurors indicated they could be fair and impartial and that defense counsel confused the jurors by her questions.

In its appeal brief, the State notes that the questions posed by defense counsel were confusing and poorly stated. Our review indicates that the initial question was unclear. Further, defense counsel’s follow up question was |smcomplete, disjointed, and confusing. Defense counsel did not clearly ask whether Ms. Payton could apply the reasonable doubt standard.

Reviewing Ms. Payton’s voir dire responses as a whole, we find nothing that indicates that she was unwilling or unable to follow the law. In fact, Ms. Payton specifically stated she could be fair. Ms. Payton further specifically stated that she could put aside her desire to hear defendant’s side of the story and afford defendant the presumption of innocence. We do find that the trial court did not err in denying the defendant’s challenge for cause.

Third, defendant maintains that prospective juror Harry Ferreira stated he could not be fair and impartial. Defendant challenged Mr. Ferreira for cause on the basis he expressed concerns about being able to be fair. The trial court denied the challenge for cause. The State thereafter exercised a peremptory challenge to exclude Mr. Ferreira from the jury. In this case, Mr. Ferreira did not sit on the jury and defendant did not use a peremptory challenge to exclude him from the jury. Any error in the trial court’s denial of a challenge for cause is therefore moot. See State v. Quatrevingt, 617 So.2d 484, 489 (La.App. 4 Cir.1992), writ granted, State v. Quatrevingt, 93-1644 (La.6/16/95), 655 So.2d 351, affirmed by State v. Quatre-vingt, 93-1644 (La.2/28/96), 670 So.2d 197, cert. denied, 519 U.S. 927, 117 S.Ct. 294, 136 L.Ed.2d 213 (1996), habeas corpus granted by Quatrevingt v. Cain, 99-2175, 2001 WL 327596 (E.D.La.4/3/01), reversed on other grounds by Quatrevingt v. Cain, 01-30523 (U.S. 5th Cir.La.11/15/01), 277 F.3d 1374, cert. denied, 535 U.S. 1115, 122 S.Ct. 2335, 153 L.Ed.2d 164 (2002). Based on the foregoing, we conclude that defendant’s first assignment of error lacks merit.

In his second assignment of error, defendant assigns as error all errors patent. We have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. We note that, while the June 27, 2003 commitment notes that the jury found | ¡^defendant guilty on count one, the commitment does not reflect that the trial judge imposed sentence on count one as required by La.C.Cr.P. art. 871(A). The transcript of that hearing, however, reflects that the trial court sentenced defendant on count one to fifteen years at hard labor with the first two years without benefit of parole, probation or suspension of sentence. Where there is a discrepancy between the transcript and the commitment, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we remand with instructions to amend the commitment to reflect the imposition of defendant’s fifteen-year sentence on count one.

Next, we note that it is unclear which of the two distribution of cocaine counts the trial court enhanced when sentencing defendant as a multiple offender. On June 27, 2003, the Jefferson Parish District Attorney filed a multiple bill alleging defendant to be a second felony offender. In the multiple offender bill of information, the State indicated that defendant’s underlying felony, for which the State is seeking an enhanced penalty, is defendant’s May 22, 2003 guilty plea to count two of distribution of cocaine and his predicate felony is a 1995 distribution of cocaine conviction.

On June 27, 2003, defendant admitted the allegations of the multiple offender bill of information. When the trial judge sentenced defendant as a multiple offender, the trial court stated “[i]n case number OS-1856,[sic] the Court is going to vacate the original sentence rendered in this case, and resentence Mr. Eugene to fifteen years....”

In this case, defendant was convicted of two counts' of distribution of cocaine in case number 03-1854. Our reading of the sentencing transcript reveals that it is unclear which count of case number 03-1854 the trial judge intended to |invacate and enhance. Therefore, we vacate defendant’s multiple-offender sentence and remand for re-sentencing. See State v. Perkins, 01-1092 (La.App. 5 Cir. 2/26/02), 811 So.2d 997, 1002, writ denied, 02-0929 (La.11/15/02), 829 So.2d 422.

CONVICTION AFFIRMED; MULTIPLE OFFENDER ADJUDICATION VACATED AND REMANDED.

      . See State v. Ellis, 28,282 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, 624, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521.

      . See State v. Pooler, 96-1794 (La.App. 1 Cir. 5/9/97), 696 So.2d 22, 34-35, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288.

      . We note that, contraiy to the plea agreement executed on May 22, 2003, the State filed a multiple offender bill of information seeking to enhance defendant’s penalty for count two of distribution of cocaine.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. William NICHOLS.
    No. 03-KA-1317.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Appellate Counsel, Juliet Clark, Appellate Counsel, MArtin Belanger, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   | JAMES L. CANNELLA, Judge.

The Defendant, William Nichols, appeals from his conviction of possession of cocaine and his enhanced sentence, as a third felony offender, to ten years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm the conviction and sentence and remand.

The Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession with intent to distribute a controlled dangerous substance, cocaine, in violation of La. R.S. 40:967(A). On October 18, 2000, the Defendant waived his right to a jury trial and proceeded to a judge trial. The trial continued the next day and, at the conclusion of the State’s case, the Defendant moved to appoint a sanity commission to determine his competence to stand trial.

On April 19, 2001, the State and the Defendant stipulated to the report of the sanity commission and the trial judge ruled that the Defendant was competent to proceed. Trial resumed on September 18, 2001, at which time the Defendant moved for a new trial because he desired a jury trial. After denying the motion, trial recommenced with the testimony of an additional defense witness. On September 21, 2001, more defense witnesses testified and trial recessed until |sOctober 12, 2001. The State declined to call any rebuttal witnesses and the trial judge found the Defendant guilty of the lesser responsive offense of possession of cocaine, a violation of La. R.S. 40:967(C).

On October 25, 2001, the trial judge sentenced the Defendant to five years imprisonment at hard labor. On that same date the State filed a habitual offender bill of information, alleging him to be a third felony offender based on prior convictions of attempted armed robbery and attempted simple burglary. The Defendant denied the allegations in the bill of information. The Defendant made an oral motion for appeal, which the trial judge granted.

After a multiple offender hearing on July 11, 2002, the trial judge found the Defendant to be a third felony offender, vacated the original sentence, and imposed a sentence of ten years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The State objected to the sentence and informed the court that it would either appeal or seek supervisory writs on the court’s ruling. On August 2, 2002, the State filed a Motion to Correct an Illegally Lenient Sentence, which the trial judge denied on November 14, 2002. The State noted its intent to appeal. FACTS

At approximately 2:00 a.m. on November 19, 1999, State Troopers Flauss and Smith were on patrol in separate marked units on the West Bank of Jefferson Parish. At trial, Trooper Flauss testified that he and Trooper Smith were passing the 1300 block of Orange Blossom in Marrero, when the Defendant saw the police cars and ducked behind a building. The Defendant attempted to shove an object |4into his pocket and then fled toward a stairwell. The officers stopped their cars and ran behind the Defendant, who, at the top of the stairs, discarded a clear plastic bag containing green vegetable matter. The troopers followed the Defendant as he ran inside apartment number 1307. The Defendant stopped running and said, “I give up.” Trooper Smith arrested the Defendant for possession of marijuana and advised him of his constitutional rights. A search revealed nine white rock-like objects hidden in the Defendant’s sock. The officers thereafter advised the Defendant that he was also under arrest for possession of cocaine. These objects later tested positive for the presence of cocaine.

While inside the apartment, the officers observed a woman who had been asleep with a child on a mattress on the floor. Trooper Flauss testified that he did not see or recover any drugs from the apartment.

The defense’s theory was that the drugs were found in the apartment, which was not the Defendant’s, and that the officers lied when they said that the drugs were found on the Defendant. The Defendant had several witnesses testify in support of his defense.

Tonyielle Brown (Brown), the Defendant’s girlfriend at the time, lived in apartment 1307. Her babysitter, Tranita Lewis (Lewis), was at the apartment on the evening in question while Brown was at work. According to Brown, the cocaine belonged to Corey Berry (Berry), who was the babysitter’s boyfriend. Although Brown testified that Berry said he left the cocaine in the apartment, Berry testified at trial that the contraband was already there when he visited Lewis that night at the apartment. Berry further testified that the cocaine was in nine pieces on the speaker and that there was marijuana on a plate behind the speaker. Berry denied that the cocaine belonged to him or to Lewis.

|BAccording to Berry, he arrived at the apartment around midnight. At some point, the Defendant knocked on the door, but did not come inside. The Defendant and Berry walked downstairs and Berry went to talk to an acquaintance. Berry noticed the police driving by. He told the Defendant to go inside, because he knew the Defendant was on parole. Berry feared that the police might stop and “mess” with him. The police stopped, went up the stairs, and came down with the Defendant in handcuffs. According to Berry, the cocaine and marijuana were not in the apartment when the police left. Berry admitted that he was incarcerated for being a felon in possession of a firearm and that his underlying conviction was simple burglary.

Brown’s sister, Rose Brown, who lived in the apartment with her sister and the Defendant, testified that Berry removed cocaine from his pocket and placed it on an end table. Rose Brown stated that she was upset that he had brought contraband in the apartment, since there were children present. Rose Brown said that she was asleep when the Defendant was arrested that evening and that she did not hear any of the events that transpired.

Eighteen year old Lewis acknowledged that she was incarcerated in the Jetson Correctional Center for simple battery, unauthorized entry, and theft. She testified that she saw Berry put marijuana on a plate and “rocks” of cocaine on a table. However, Lewis said that she moved the cocaine to the speaker. According to Lewis, the Defendant knocked on the door and Berry left with the Defendant. A few minutes later, the Defendant ran back in the apartment with the police following. Although the police searched the Defendant, they found no contraband. However, when one of the officers found the marijuana and cocaine in the apartment, the other officer said that they would “charge” the Defendant because he had run from them.

| ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the trial judge, Ronald Bodenheimer, should have recused himself because he was a “narcotics informant for the very law enforcement agency that built the case” against the Defendant. It was error to permit the Defendant to go to trial and be convicted by a judge who was actively engaged as a narcotics informant for the Jefferson Parish Sheriffs Office. The trial judge’s failure to recuse himself was reversible error.

The State responds that the record does not contain any evidence supporting the Defendant’s claims in this assignment of error. The State notes that the Defendant’s claims are more appropriate for post-conviction relief.

The record reflects that the Defendant did not move to recuse the trial judge. However, La.C.Cr.P. art. 672 governs the circumstances in which a judge should re-cuse himself or herself and provides:

A judge may recuse himself, whether a motion for his recusation has been filed by a party or not, in any case in which a ground for recusation exists.
On the written application of a trial judge, the supreme court may recuse him for any reason that it considers sufficient.

In the present case, there is nothing in the record that supports the Defendant’s allegations or that indicates that the trial judge should have recused himself. Although the Defendant has supported his allegations about the trial judge’s conduct with newspaper reports, both the Louisiana Supreme Court and this Court have recognized that courts of appeal have no authority to receive or review evidence not contained in the district court record. State v. Oubichon, 422 So.2d 1140, 1141 (La.1982); State v. Bibb, 626 So.2d 913, 924 (La.App. 5th Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188.

This Court has previously considered similar arguments concerning this trial judge in State v. Harris, 02-873, p. 8 (La. App. 5th Cir.1/28/03), 839 So.2d 291, 295, writ denied, 03-846 (La.10/31/03), 857 So.2d 474 and State v. Sandoval, 02-230, p. 9 (La.App. 5th Cir.2/25/03), 841 So.2d 977, 984, writ denied, 03-853 (La.10/03/03), 855 So.2d 308. In both cases this Court concluded that the assigned error presented nothing for review on appeal because no evidence was contained in the record to support the defendant’s allegations. This Court noted that the defendants were not without a remedy and that the claims would be more properly raised in an application for post conviction relief pursuant to La.C.Cr.P. art. 924 et seq.

Similarly, we have nothing in this record to review on appeal on this issue and the Defendant’s claim here is more appropriately raised in an application for post conviction relief. Based on the foregoing, we find that this assignment of error presents nothing for this Court to review on appeal.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant requests that this Court review the record for any errors patent on the face of the record. The State argues, in response to the Defendant’s request for review, that the Defendant’s sentence is illegally lenient and should be vacated and the case remanded to the district court for resentencing.

The record was reviewed according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990).

The record indicates that the Defendant was sentenced as a habitual offender on July 11, 2002 for a crime he committed on November 19, 1999. The trial court found that the Defendant had two prior felony convictions, one for attempted simple burglary in violation of La. R.S. 14:27 and 14:62 and one for attempted armed robbery in violation of La. R.S. 14:27 and 14:64. Attempted armed robbery is defined as a crime of violence. La. R.S. 14:2(13)(w). At the time of the commission of the underlying offense, a third felony offender, with a prior |Rconviction for a violent crime, was subject to a mandatory life sentence without benefit of parole, probation or suspension of sentence under LA. R.S. 15:529.1(A)(l)(b)(ii).

In Act 403 of the 2001 Regular Session, effective June 15, 2001, prior to the Defendant’s sentencing, the Louisiana Legislature amended La. R.S. 15:529.1(A)(l)(b) to read as follows:

(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Because only one of the Defendant’s offenses are defined as a crime of violence, the Defendant would be sentenced under La. R.S. 15:529.1(A)(l)(b)(i) if the amended provision were applicable. However, the Louisiana Supreme Court has held that the changes mandated by Act 403 do not apply to sentences imposed for crimes committed before the act’s effective date. State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354. This rule extends to habitual offender sentences imposed pursuant to La. R.S. 15:529.1. State v. Barnes. Accord, State v. Ventress, 01-1165, p. 8 (La.App. 5th Cir.4/30/02), 817 So.2d 377, 383.

In the present case, the sentencing judge, Robert Burns, following argument of counsel, off the record, determined that the Defendant should be sentenced to 19ten years imprisonment at hard labor. That is the maximum sentence under the applicable amended provision, but far less than the statutory minimum sentence under the law prior to the amendment.

The State, thereafter, filed a motion to reconsider the sentence and to correct an illegally lenient sentence. Following a hearing on the motion, the trial judge sitting at that time, Leon Cannizzaro, made the following findings: (1) that the pre-amendment law was applicable but that the amendment indicated the Legislative intent to have the more severe penalties reconsidered; (2) that the imposition of a life sentence on this Defendant for the offense of possession of cocaine was “cruel and unusual” and “far out weighs the crime;” and (3) that the sentence of 10 years, which was the maximum under the law as amended, “is more than adequate under the multiple bill law for the offense for which he has been convicted.” The trial judge denied the State’s motion. No objection was expressly made by the State. Rather, the District Attorney stated: “I would note it’s my intent to take an appeal on the matter.” The minute entry of November 14, 2002 contains a notation dated March 25, 2003 from J. Vincent, Appeals Officer for the 24th Judicial District Court, that the “D.A. has not formally requested an appeal, and that plans to do so have been abandoned.” The State asserts in its brief that there is nothing in the record to support this particular statement. However, we note that no motion for appeal was filed nor were errors assigned as required by law. Therefore we find that the State has not properly preserved this issue for appellate review.

The State argues that a reviewing court has the authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence despite the failure of either party to raise the issue in the district court or on appeal. This Court has held that La. C.Cr.P. art. 882 is permissive and has declined to exercise the discretion provided in La.C.Cr.P. art. 882 in certain circumstances. See, State v. Williams, 02-1016, p. 14 (La.App. 5th Cir.2/25/03), 841 So.2d 936, 945-946. We find this to be a case where we decline to exercise that discretion.

This case has been considered by two different trial judges, both of whom determined that this Defendant should not be sentenced to more than ten years imprisonment at hard labor as a habitual offender. Judge Cannizzaro further found that a life sentence would be cruel and unusual and that ten years was appropriate considering all the circumstance of the case. Also, the State has not filed the necessary pleadings to place the issue of illegality, lenient sentence before the Court. Thus, we find no patent error in the sentencing that requires corrective action by this Court at this time.

The record discloses several conflicts between the transcript and the minutes which must be corrected on remand. First, the transcript of October 18, 2000 reflects that the Defendant waived his right to a jury trial, whereas the minute entry does not. Next, the corrected minute entry for October 12, 2001 reflects that the matter was a “jury trial” whereas the transcript reflects that the Defendant proceeded to trial before the judge. Additionally, the original commitment of October 25, 2001 reflects that the Defendant was found guilty by a jury of “DIST/WITD OF A CDS-POSS/WITD COCAINE,” while the record reflects that the Defendant was found guilty by the trial judge of possession of cocaine. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Haynes, 96-84 (La.App. 5th Cir.6/25/96), 676 So.2d 1120, 1123. Accordingly, on remand the district court is ordered to correct the above noted minute entries and commitment to conform to the transcript.

For the reasons stated above, we affirm the Defendant’s conviction for possession of cocaine and enhanced sentence, as a third felony offender, to ten years imprisonment at hard labor without benefit of parole, probation or ^suspension of sentence and remand to the district court. On remand, the trial court is ordered to correct the minute entries and commitment to conform to the transcript.

CONVICTION AFFIRMED; SENTENCE AFFIRMED; AND CASE REMANDED.

      . The Defendant’s motion for appeal was premature when it was made after conviction and sentence on the offense, but before he was sentenced as a habitual offender. However, that procedural defect was cured by the subsequent resentencing. State v. Balser, 96-443, p. 7 (La.App. 5th Cir. 11/14/96), 694 So.2d 351, 354.

      . Although the State filed a notice of intent to seek supervisory writs, this Court's records do not reflect that an application was filed.

      . The error patent discussion addresses the status of the State's appeal.

      . Trooper Smith’s testimony paralleled Trooper Flauss' testimony.