author: WHATLEY, Judge. SALCINES, Judge,

text:
    Brian Michael CHIPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5433.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.
   WHATLEY, Judge.

Brian Michael Chipman challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Chipman raised four grounds for relief in his motion. We affirm the trial court’s order as it relates to three of the grounds raised. We reverse and remand for further proceedings on the remaining ground.

Chipman pleaded guilty to grand theft auto. In his motion, he alleged that the vehicle was stolen in Texas and that he had been convicted of the same charge there. As the trial court found in its order, Chipman “stole a car in Texas, drove it to Florida and continued to use it while in Florida.” Chipman alleged that his Florida conviction was barred by double jeopardy considerations. He also alleged that the State of Florida lacked jurisdiction to try him for grand theft auto because the offense occurred in Texas. Chipman also accused the State of withholding “evidence favorable to the defendant” by not advising him that he had a “right to be convicted in the county and state where the crime was committed.” Chipman is not entitled to relief on any of these three claims.

In State v. McNab, 642 So.2d 41 (Fla. 5th DCA 1994), McNab failed to return a rental vehicle in Florida and was arrested driving it in Pennsylvania where he pleaded guilty to, inter alia, unauthorized use of a motor vehicle. McNab was charged with grand theft auto in Florida, and the trial court dismissed the information “on the basis that McNab had committed only one theft and thus there could only be one prosecution by one state, even if the crime crossed state lines.” 642 So.2d at 41. In reversing the order of the trial court and remanding for further proceedings, the Fifth District stated:

[WJhen a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offenses for double jeopardy purposes. Since the states are separate sovereigns and equal to each other in power, dignity, and authority, each has the power independently to determine what is an offense against its authority and to punish such offenses.

642 So.2d at 42 (emphasis in original).

In the present case, Chipman violated section 812.014(2)(c)(6), Florida Statutes (2001). His prosecution for grand theft auto was not barred by double jeopardy considerations, and the State of Florida had jurisdiction to try him for the offense.

Chipman also claimed that his plea was involuntarily entered because counsel advised him to plead guilty and that she would then win the case on appeal. Although his claim is poorly drafted, Chip-man alleged that he would not have pleaded but for this advice. The trial court found that the claim was facially insufficient because Chipman did not allege any facts to show that he was misadvised. However, we conclude that Chipman sufficiently alleged his plea was involuntarily entered based on misadvice of counsel where there was no apparent basis for an appeal of his guilty plea, especially as concerns any double jeopardy claim. We reverse the order of the trial court as it relates to this claim, and we remand for the trial court to consider it. If the trial court again summarily denies the claim, it shall attach those portions of the record that conclusively refute it.

Affirmed in part, reversed in part, and remanded for further proceedings.

SALCINES and SILBERMAN, JJ., Concur.

SALCINES, J., Concurs with opinion.

SALCINES, Judge,

Specially concurring.

I fully agree with this unanimous opinion but merely add that successive prosecutions in separate sovereignties based on the same facts and arising out of the same misconduct in violation of the different sov-ereignties are not constitutionally prohibited and are not barred by the double jeopardy clauses of the Texas, Florida, and United States constitutions. See United States v. Smith, 757 F.2d 1161 (11th Cir.1985); United States v. Burke, 495 F.2d 1226 (5th Cir.1974); see also State v. Jones, 668 So.2d 1073 (Fla. 2d DCA 1996); King v. State, 687 So.2d 917 (Fla. 5th DCA 1997); McNab, 642 So.2d 41; State v. Booth, 418 So.2d 385 (Fla. 1st DCA 1982); Hernandez v. State, 897 So.2d 715 (Fla. 1st DCA 1981). An act denounced as a crime by two or more state sovereignties is an offense against the peace and dignity of each of the separate sovereignties and may be prosecuted and punished by each. See United States v. Jackson, 470 F.2d 684 (5th Cir.1972).

Chipman’s reliance on the double jeopardy clause is of no avail because of the dual sovereignty doctrine. The same single (and/or continuing) act by Chipman constituted more than one offense as he violated both the laws of Texas and Florida for which he has been prosecuted by both sovereign states. Furthermore, Chipman could have also been prosecuted in the federal court by the U.S. Department of Justice for violating the federal crime of interstate transport of a stolen motor vehicle. See 18 U.S.C. § 2312: There would be no double jeopardy violation because Chipman’s criminal conduct also violated the federal sovereignty. See Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Ill., 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

      . The trial court’s order reflects that Chipman also pleaded guilty to one count of grand theft.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Jacob O. CASH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3534.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.

      Jacob 0. Cash, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Michele Taylor, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Jacob 0. Cash seeks review of the trial court’s order denying his motion and supplemental motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Cash’s motions contained a total of seventeen grounds; the court summarily denied eight and denied the remaining nine after an evidentiary hearing. After reviewing all seventeen grounds, we have determined that an evi-dentiary hearing is required on grounds one, nine, and thirteen. We affirm without comment the denial of the remainder of the grounds.

A jury found Cash guilty of second-degree murder and shooting at, within, or into a vehicle. From the sparse record before us, it appears that the State’s theory at trial was that Cash shot the victim three times in Ybor City while Cash was running next to a vehicle the victim was driving. It is undisputed that the victim was seated in the driver’s seat and driving at the time. Cash’s defense was that the victim was trying to carjack him and that Cash shot him in self-defense. Cash claimed that he was climbing out of the driver’s window trying to escape when he shot the victim. The State presented testimony that Cash stole the vehicle from Moss Automotive in South Carolina and drove it to Florida. Cash testified that the vehicle was loaned to him by a Moss employee, Jeremy Fields. Fields testified to the contrary.

Ground One

Cash argues that the trial court erred in summarily denying his claim that a State witness provided perjured testimony on the witness stand in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To establish a violation under Giglio, the defendant must show that (1) the testimony was false, (2) the prosecutor knew that the testimony was false, and (3) the testimony was material. Guzman v. State, 868 So.2d 498, 505 (Fla.2003).

Cash presented the sworn affidavit of Terry Moss, the owner of Moss Automotive, in which Moss stated that, prior to trial, he told the prosecutor that Jeremy Fields admitted to giving Cash the keys to the vehicle and that Fields, not Cash, stole the vehicle. Moss also stated that the prosecutor told him not to mention that Fields gave the vehicle to Cash when he testified. Fields testified at trial that Cash asked him to provide him with a vehicle, but that Fields denied the request. Fields also testified that Cash asked him to let him test drive a vehicle from the dealership so Cash could make a key, but Fields said no. Thus, Cash has established the first two prongs of a Giglio violation.

The State argues that Fields’ testimony was not material because how Cash obtained the vehicle was not relevant to either the State’s or the defendant’s theory. According to Cash, the alleged theft of the vehicle from Moss Automotive became a feature of the trial. Thus, while Fields’ testimony may not have been relevant to the theory of the case, it was used to show that Cash was a vehicle thief who also lied on the stand when he testified that Fields gave him the vehicle.

Perjured testimony is material under Giglio unless it is harmless beyond a reasonable doubt or “if there is any reasonable likelihood that the false testimony could have affected the judgment.” Id. at 508. The State bears the burden of showing that the testimony was not material. Id. While Fields’ testimony may not have helped the State establish the elements of the crime, it certainly gave the jury the impression that Cash was a vehicle thief and a liar. Cash’s credibility was central to his defense that he committed the shooting in the course of defending himself from a carjacking. Accordingly, the State has not shown that Fields’ testimony could not have affected the judgment, and we reverse and remand for an evidentiary hearing on this issue in which the State may refute Moss’ affidavit and the court may conduct a more thorough review of the materiality of the testimony based on a full record.

Ground Nine

Cash argues that the trial court erred in summarily denying his claim that defense counsel was ineffective for failing to request the proper self-defense jury instruction. Cash claims that defense counsel should have requested the self-defense instruction for carjacking and not aggravated battery because the facts did not support an aggravated battery. The trial court denied the claim based on the State’s assertion that the evidence did not support Cash’s carjacking theory because Cash did not have “custody” of the vehicle at the time of the crime.

“ ‘Carjacking’ means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.133(1), Fla. Stat. (1997). The victim does not have to be the owner of the motor vehicle, but must have custody of the vehicle at the time of the offense. Id.; see also Fla. Std. Jury Instr. (Crim.) 15.2.

The State relies on Gaiter v. State, 824 So.2d 956 (Fla. 3d DCA 2002), to support its argument. However, Gaiter is distinguishable from this case. In that case, the defendant was charged with robbing a landlord of a bicycle that was chained to a basketball hoop pole on the landlord’s property. Id. at 956-57. The court held that the landlord did not have custody of the bicycle because it was owned by a tenant and the landlord had not been granted care, possession, or control of the bicycle. In this case, however, Cash testified that Jeremy Fields loaned him the vehicle. According to Cash’s testimony, he had possession and control of the vehicle at the time of the crime. Therefore, the trial court erred in summarily denying Cash’s claim on this basis. On remand, the court shall reconsider the claim and either attach record documents that refute the claim or conduct an evidentiary hearing on the matter.

Ground Thirteen

Cash argues that the trial court erred in summarily denying his claim that defense counsel was ineffective for failing to make a contemporaneous objection to the testimony regarding vehicle theft being introduced at trial. Cash asserted that defense counsel raised the issue in a motion in limine but did not object at trial until after the two witnesses had already testified. Cash claimed that this failure to contemporaneously object precluded review of the issue on direct appeal.

At the time of Cash’s crime, a motion in limine was not sufficient to preserve an issue for appeal absent a contemporaneous objection at trial. See Coffee v. State, 699 So.2d 299, 300 (Fla. 2d DCA 1997). While an objection did not have to be made at the exact moment of the impermissible line of inquiry, it must have been made at some point during the impermissible line of questioning. Evans v. State, 800 So.2d 182, 188 (Fla.2001); Jackson v. State, 451 So.2d 458, 461 (Fla.1984). Thus, if defense counsel did not object to the admission of the testimony regarding vehicle theft at some point during the testimony, the issue was not preserved for review, and counsel’s performance was deficient.

The court denied the claim based on its conclusion that the issue was already raised on direct appeal. However, the issue on direct appeal was the propriety of the testimony regarding vehicle theft, not counsel’s ineffectiveness for failing to preserve the issue for review. Cash has stated a facially sufficient claim for relief, and he is therefore entitled to an evidentiary hearing on the ground.

Affirmed in part; reversed in part; and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.

      . This argument is interesting in light of the State's argument at trial that the evidence of the vehicle theft was relevant to the case.

      . The robbery statute contains the same custody requirement as stated in the carjacking statute. See § 812.13(1), Fla. Stat. (1997).

      . We note that a party is no longer required to renew an objection made in a motion in limine at trial. See § 90.104(1), Fla. Stat. (2003).


author: | MAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Toney D. BAPTISTE.
    No. 2003-KA-2075.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.
    Rehearing Denied July 15, 2004.
    Charles C. Foti, Jr., Attorney General State of Louisiana, Darryl W. Bubrig, Sr., District Attorney of Plaquemines Parish, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney of Plaque-mines Parish, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR.).
   | MAMES F. McKAY III, Judge.

STATEMENT OF THE CASE

On March 19, 2003, the State filed a bill of information charging the defendant To-ney Baptiste with two counts of armed robbery, violations of La. R.S. 14:64. The defendant was arraigned and entered pleas of not guilty on March 31, 2003. On June 9, 2003, the defendant pro se filed a motion to quash on double jeopardy grounds. On July 9, 2003, the court heard oral argument on the motion to quash and took it under advisement. On July 11, 2003, the court rendered a written judgment granting the motion to quash. The State moved for an appeal on August 4, 2004, which was granted by the trial court.

STATEMENT OF THE FACTS

The facts of this case are evidenced in the record only by documents attached to the State’s answers to the defense discovery motions. The report prepared by the sheriffs office reflects that on August 19, 2002, the victims, Hubert Cole and Leonard Broussard, were driving on Lake Hermitage Road toward a marina when a blue Oldsmobile passed them, then turned around and cut | ¿them off. The passenger of the Oldsmobile exited and approached the victims and ordered them to exit their truck, which they did. The perpetrator was armed with a revolver. At that time, the driver of the Oldsmobile also exited his vehicle, but the victims were unable to say whether he also had a weapon. The first suspect obtained the wallet of one of the victims, Mr. Broussard, which contained cash, credit cards, and his driver’s license. The other victim, Mr. Cole, gave his wallet, his hunting knife, and the keys of his vehicle to the driver of the Oldsmobile. The driver told the victims not to move, and both robbers then left the scene in the Oldsmobile. The victims flagged down a passing St. Charles Sheriffs deputy and told him of what had occurred. The deputy told the victims to call the Plaquemines Parish Sheriffs office to report the robbery, which they did.

Later the same day, one of the victims, Leonard Broussard, called the Plaque-mines Parish Sheriffs office and reported that his bank had called to tell him someone was trying to use his card at an ATM machine at a food mart in Luling. Also, the cashier at the food mart called the police because she had noticed that the person using the card, the defendant, was African-American, but had a white man’s driver’s license. Furthermore, the defendant had aroused the cashier’s suspicions because of questions regarding how many times he could use the ATM machine before it stopped him. Deputies from the St. Charles Parish Sheriffs office responded to the scene and arrested the defendant after a struggle. A second person on the scene, which fit the description of the second robber, fled the food mart and has never been apprehended or identified.

At the time of his arrest, the defendant was found in possession of Mr. Broussard’s driver’s license and two credit cards. He also discarded narcotics. He was subsequently charged in St. Charles Parish with several offenses. On August ls21, 2003, after Mr. Broussard positively identified him in a photographic line-up as one of the robbers, an arrest warrant was issued in Plaquemines Parish. That warrant was not executed until February 25, 2003, when St. Charles Parish authorities notified Plaquemines Parish that the defendant was ready to be transferred.

DISCUSSION

In this appeal by the State, the sole issue is whether the trial court erred when it granted the defendant’s motion to quash. The motion was based on the allegation that the prosecution was barred by double jeopardy. The basis for the double jeopardy claim was that the defendant pled guilty to violating La. R.S. 14:69, relative to the illegal possession of stolen property, in St. Charles Parish; the stolen property were the items taken from Leonard Brous-sard, one of the victims of the armed robberies in the instant case.

Before addressing the legal principles, it should be noted that the State initially argued at the hearing that charges to which the defendant entered pleas in St. Charles Parish and was sentenced were possibly not possession of stolen property but rather were unauthorized use of an access card. The defense responded that it had provided the court with certified copies of the minutes from the St. Charles Parish proceedings. These minutes re-fleeted pleas of guilty to nine counts of unauthorized use of an access card and one count of illegal possession of stolen property. On the latter count the defendant was sentenced to 121 days in prison to run concurrently with the other counts. The State dismissed a charge of possession of narcotics with the intent to distribute. In its written judgment, the trial court explicitly stated that the conviction in St. Charles Parish was for 1 ¿possessing property stolen in the instant ease. In its brief, the State concedes these facts, arguing only that the trial court misapplied the law to the facts.

In its written judgment the trial court relied on State v. Robertson, 386 So.2d 906 (La.1980). In that case, the defendant was charged in separate bills of information with armed robbery and receiving stolen things. The defendant entered a guilty plea to the charge of armed robbery first and was sentenced. He then filed a motion to quash the bill of information charging him with receiving stolen property. The property listed in the bill was the identical property, a vehicle, which was also listed in the bill of information on the armed robbery charge. In discussing whether the defendant could be punished for both offenses, the court first noted that armed robbery was defined in part as “the theft of anything of value,” and thus theft was an element of the armed robbery charge. Robertson, 386 So.2d at 907. La. R.S. 14:69 defined receiving stolen property in part as the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft. The court then cited La. C.Cr.P. art. 482(A), which provides: The court further reviewed the comments to Art. 482, which reflected that it was designed to provide for a situation where the prosecution may be unsure which crime the evidence would establish at trial. The court recognized that Robertson |shad not been charged in a single indictment; however, the armed robbery conviction included theft as an essential element, and the object of the theft was the same as the thing received in the stolen property charge. The court thus concluded:

A. An indictment for theft may also contain a count for receiving stolen
things, and the defendant may be convicted of either offense. When two or more persons are jointly indicted for these offenses, any or all of the persons indicted may be found guilty of either of the offenses charged. The district attorney shall not be required to elect between the two offenses charged.
For the same reasoning that caused the enactment of art. 482(A), we conclude that where a defendant is charged in separate indictments with theft, or a crime in which theft is an essential element thereof (e. g., armed robbery), and receiving stolen things, and the object of the theft and the thing received are the same, a defendant can be found guilty of either crime but not both. We are supported in this conclusion by the comment to art. 482 which states: “A receiver of stolen things (R.S. 14:69) will be guilty of theft (R.S. 14:67), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods.” (Emphasis added.) In other words, both charges cannot be supported by the same facts.

Robertson, 386 So.2d at 908.

The State in its brief attempts to distinguish Robertson from the instant case on the grounds that the defendant in Robertson had entered his plea to armed robbery first. The State suggests that, because possession of stolen property is a “lesser included offense of armed robbery,” Robertson’s plea to the greater offense barred prosecution for the lesser offense, and conversely, where the defendant first pled to possession of stolen property; prosecution is not barred for the “greater offense.” However, nowhere in Robertson did the court refer to lesser and greater offenses as the determining factor. The language from the ease makes no distinction as to which conviction occurs first. Rather, the court made it clear that the double jeopardy bar arose from the fact that “the thing received and the object of the theft in the armed robbery” were the same. Id. p. 907. Furthermore, the conclusion that it makes no difference which conviction occurs first is bolstered by a per curiam opinion rendered by the Court in State v. France, 410 So.2d 238 (La.1981). The court reversed the trial court’s ruling denying the defendant’s motion to quash a bill of information for armed robbery based on double jeopardy grounds. | ¿The court noted that Robertson was not inconsistent but rather supported the motion to quash. The notable aspect is the specific reference to the bill of inforaiation charging armed robbery, leading to the inference that the defendant had already been convicted of the stolen property charge, the reverse of the situation which was presented in Robertson, but which is the same as in the present case.

Nevertheless, there is a possible meritorious argument in this case, which the State totally fails to mention. The defendant was charged with two counts of armed robbery, one count as to Leonard Broussard and the other as to Hubert Cole. All of the documents in the record show that the defendant was in possession of Mr. Broussard’s property when he was arrested in St. Charles Parish. There is nothing to indicate that the defendant was in possession of Mr. Cole’s property. However, the trial court apparently quashed the entire bill of information and not merely the count involving Mr. Brous-sard.

In State v. Sandifer, 95-2226 (La.9/5/96) 679 So.2d 1324, the Louisiana Supreme Court extensively discussed double jeopardy in the context of a defendant being charged with and convicted of both possession of a firearm while in possession of narcotics, a violation of La. R.S. 14:95(E), and a separate count of possession of narcotics:

The Double Jeopardy Clause protects defendants from being punished or prosecuted twice for the same offense. U.S. Const, amend. V; La. Const. art. I, § 15; La.C.Cr.P. art. 591. Under La. C.Cr.P. art. 596, double jeopardy exists in a second trial only when the charge brought is: (1) identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, or (2) based on a part of a continuous offense for which the defendant was in jeopardy in the first trial. The United States Supreme Court applies the “additional fact” test to resolve double jeopardy issues and states are constitutionally required to do the same. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 |7(1932); see United States v. Dixon, 509 U.S. 688, 696-97, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-2226, 53 L.Edüd 187 (1977); State v. Knowles, 392 So.2d 651, 654 (La.1980). The “additional fact” test requires that, when conduct constitutes a violation of two or more distinct statutory provisions, the provisions must be scrutinized to confirm that each demands proof of an additional fact. Knowles, 392 So.2d at 654.
In addition, Louisiana courts utilize the “same evidence” test, which focuses upon the actual physical and testimony evidence necessary to secure a conviction. State v. Steele, 387 So.2d 1175, 1177 (La.1980). This test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, under the “same evidence” test, the court’s concern is with the “evidential focus” of the facts adduced at trial in light of the verdict rendered, ie., how the evidence presented goes to satisfy the prosecution’s burden of proof. State v. Coody, 448 So.2d 100, 102-103 (La. 1984). Therefore, if the evidence required to support a finding of guilt of one crime would also support a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. Coody, 448 So.2d at 102-103; Knowles, 392 So.2d at 654.
Consequently, the Double Jeopardy Clause, under both the “additional fact” and the “same evidence” tests, prevents an offender from being convicted of both a felony murder and the underlying felony. State ex rel. Adams v. Butler, 558 So.2d 552, 553 (La.1990). The rationale which supports that rule is the same as that which prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself. See State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035; State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089.
In State v. Warner, the Fourth Circuit Court of Appeal ruled that double jeopardy barred the prosecution for cocaine possession of a defendant who had previously been convicted under La.R.S. 14:95(E) of possession of a firearm while in possession of the same cocaine. The appellate court noted that “[wjhen the gravamen of the second offense is essentially included within the offense for which the defendant was first tried, the second prosecution is barred because of former jeopardy.” Warner, 94-2649 at p. 7, 653 So.2d at 61 (citing State v. Buckley, 344 So.2d 980, 982 (La.1977)). In Warner, the court observed that the defendant’s prosecution under the cocaine possession charge would require the use of the same evidence presented against him under La.R.S. 14:95(E), and concluded that the prohibition against double jeopardy would be violated. Warner, 94-2649 at p. 8; 653 So.2d at 61. In State v. Woods, the same appellate Iscourt ruled that double jeopardy barred the prosecution of a defendant under La.R.S. 14:95(E) subsequent to his conviction on a charge of cocaine possession, where the cocaine possession was the basis for the violation of La.R.S. 14:95(E). State v. Woods, 94-2650 at p. 5, 654 So.2d at 813.
However, Warner and Woods are factually distinguishable from the instant case. The defendants in Warner and Woods were each charged with violating La.R.S. 14:95(E) by possessing a gun while possessing only one controlled substance (cocaine) and were each charged separately with simple possession of cocaine. When the defendants’ cases were considered by the appellate court, each had been convicted of one of his two charges — in defendant Warner’s case, the 14:95(E) violation and in defendant Woods’ case, the cocaine possession violation. Their successes in raising double jeopardy claims hinged on the fact that their respective charges under La.R.S. 14:95(E) required use of the same evidence of possession of cocaine which supported their respective possession charges.

State v. Sandifer, pp. 4-6, 679 So.2d at 1328-31.

The court found that there was no double jeopardy in Sandifer’s case. He had been charged in three separate bills of information with one count of possession of marijuana, one count of possession of cocaine, and one count of possession of a firearm while in possession of a controlled dangerous substance, specifically cocaine and marijuana. He entered a guilty plea to the misdemeanor charge of possession of marijuana, and then sought to quash possession of a firearm charge. Because the defendant had pled guilty to only one of the two narcotics charges, the court concluded that, “the evidence of his alleged possession of cocaine, for which he has not yet been convicted, provides a proper basis to support his prosecution under La. R.S. 14:95(E).” Id. p. 7, 1330. The court specifically noted that the physical evidence used to support his marijuana conviction consisted of three marijuana cigarettes; the evidence, which might support a conviction for violating La. R.S. 14:95(E) consisted of a small bottle of cocaine residue and two firearms. Thus, the “application of both the ‘additional 19fact’ and the ‘same evidence’ tests demonstrates that no double jeopardy violation exists.” Sandifer, p. 7, 679 So.2d at 1330.

In the instant case, in order to convict the defendant of the armed robbery of Mr. Cole, the State does not need to present evidence of the defendant’s possession of property stolen from Mr. Broussard. In fact, the record indicates that the defendant was the subject who approached Mr. Cole and not the one who approached Mr. Broussard. The cashier from the store in Luling described the defendant as tall and wearing a black hat. In his statement, Mr. Cole referred to the “short guy” as the one who exited the Oldsmobile first, while the other perpetrator was the “tall one” and had a black baseball cap on. Both victims said the tall perpetrator searched the victims’ truck and took keys and a sunglass case. Therefore, the property stolen from Mr. Broussard is not the same evidence, which is necessary to support a conviction for the armed robbery of Mr. Cole, and because the offense of armed robbery contains elements other than the taking of anything of value, prosecution for this count will satisfy the “additional fact” test. Sandifer, p. 4, 679 So.2d at 1329.

CONCLUSION

The trial court was correct when it quashed the bill of information as to the count charging the defendant with the armed robbery of Mr. Broussard. However, on the record before this Court, it appears the court erred when it quashed the first count relative to the armed robbery of Mr. Cole. Therefore, the court’s ruling is affirmed in part, reversed in part, and the matter remanded for further proceedings.

ImAFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . The court also heard testimony in connection with the motions to suppress filed by counsel and denied them; the transcript of that portion of the proceedings has not been made a part of the record.

      . In 1983 the statute was amended to substitute the word "taking” for "theft” and inserted "belonging to another.” However, considering that La. R.S. 14:69 refers to property "which has been the subject of any theft or robbery,” the amendment to La. R.S. 14:64 deleting the specific word theft appears inconsequential to the double jeopardy issue.

      . The narrative of the police report indicates that one subject took property from Mr. Broussard, and the other took personal property from Mr. Cole. The victims' statements are less clear on whether each robber took a wallet; the use of a common pronoun does not help. Mr. Cole’s statement indicates the same subject, the one in possession of the gun, took both wallets. The subject with the gun was the shorter robber, not the defendant.


author: | gJAMES L. CANNELLA, Judge.

text:
    Danny LATHERS, Jr. v. U-HAUL COMPANY OF LOUISIANA and Republic Western Insurance Company.
    No. 03-CA-1466.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 11, 2004.
    Michael J. Hand, Kenner, LA, for Appellant.
    Michael R. Sistrunk, Donald J. Palmisa-no, Jr., McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   | gJAMES L. CANNELLA, Judge.

The Plaintiff, Danny Lathers, Jr., appeals from a summary judgment in favor of the Defendants, U-Haul Co. of Louisiana (U-Haul) and Republic Western Insurance Company (Republic). We affirm.

In late 1999 or early 2000, the Plaintiff contracted with the Oakwood U-Haul Center in Gretna, Louisiana to store his belongings in a self-storage unit on a month to month basis. He had just separated from his girlfriend and moved out of their apartment. He also obtained an insurance policy through Republic, insuring the contents of the unit.

Shortly after the Plaintiff rented the unit, he became delinquent in his payments. Pursuant to the Louisiana Self-Storage Act, La.R.S. 9:4756 et seq., U-Haul acquired a lien on the movables within the unit and replaced the Plaintiffs lock with one of its own. The Plaintiff thereafter paid the back rent. The Defendant removed its lock and the Plaintiff put another lock on the door. Several weeks later, the Plaintiff entered his unit to remove some items using his key. He did not notice anything out of the ordinary and he locked the door when he left. The Plaintiff claims that when he returned on April 7, 2000, the door was still locked, but there was a tag on his lock stating that the lock was | ¡improperly locked. After using his key to enter the unit, he discovered $14,000 worth of items missing. He informed the manager and reported the incident to the police. The Plaintiff also made a claim with the Defendants for the loss, which was denied.

On March 30, 2001, the Plaintiff sued the Defendants, claiming U-Haul was negligent and liable for the losses. On January 27, 2001, the Defendants filed a Motion for Summary Judgment, denying liability on the basis of the U-Haul contract and an exclusion contained in the Republic policy. The trial judge held a hearing on September 3, 2003. On September 12, 2003, he rendered a judgment granting the motion.

On appeal, the Plaintiff contends that the trial judge erred in granting the motion for summary judgment because there are material issues of fact in dispute and the policy exclusion should not apply under these facts.

The Plaintiff first contends that there are material issues of fact in dispute as to whether U-Haul had knowledge that they have a significant security problem at that location. He produced evidence of thefts and burglaries at that U-Haul location both before and after the theft of his belongings. Second, he contends that the policy provision requiring evidence of forced entry in order for the claim to be covered should not apply, because U-Haul negligently placed a tag on the lock publicizing the fact that the unit was not properly locked.

The relationship between the Plaintiff and U-Haul is governed by the Self-Service Storage Facility Act, La.R.S. 9:4756, et seq. and is that of lessor and lessee. The parties to a self-storage contract can freely modify the terms of the rental agreement through written or oral agreement. See: La.R.S. 9:4760; Brown v. Garic, 508 So.2d 123, 124 (La.App. 4th Cir.1987); Cavet v. Taylor, 559 So.2d 910, 911 (La.App. 4th Cir.1990). In Brown, the court stated that the purpose of the Act is to allow a storage operator to offer space which is available to the customer without restriction, giving the customer full privacy, the right to store anything, and providing unlimited access to the unit. Brown, 508 So.2d at 124. Based on that purpose, the courts in Cavet and Brown held that a storage facility is not an insurer of the contents of the rental property. Brown, 508 So.2d at 124; Cavet, 559 So.2d at 911. In Cavet,

The plaintiff purchased a lock from the defendant and placed her goods in the rented unit. During one of several checks she made on her goods, plaintiff discovered several pieces of missing furniture. There was no sign of forcible entry. A police report was filed. Plaintiff then purchased another lock from a third party and placed it on the storage unit. Returning to the unit approximately two weeks later, plaintiff once again entered the unit to find more of her furniture missing. Again a police report was filed, and there was no sign of forcible entry. At the suggestion of the police officer, the plaintiff replaced the key operated padlocks with a rotary style combination lock.... There were no further thefts.

Cavet, 559 So.2d at 910. The plaintiff there argued that the lessor of the storage unit was liable because it offered a resident manager and an alarm system. The court disagreed, holding that the storage owner-operator was not liable for the theft of the plaintiffs property because it was not an insurer of lessee’s personal property. Cavet, 559 So.2d at 911.

In Brown, the issue was whether a contractual provision disclaiming its responsibility for losses or damage and stating that it was not the insurer of the storage space contents was unconscionable and unenforceable. The trial judge found that it was, but the Fourth Circuit reversed on the basis that, under La.R.S. 9:4756 et seq., the relationship of the parties is that of lessor-lessee, the facility is not considered a warehouse, and R.S. 9:4757(4) authorizes the parties to enter into such agreements to regulate the use of the facility. The court further stated that, “If the operator were, in effect, the insurer of the contents, his liability would be unlimited and such a facility could not be operated economically or made available lRto the public at a realistic price.” Brown, 508 So.2d at 124; See also, Cavet, 559 So.2d at 911.

This case is similar to Brown and Cavet. Here, the Plaintiff admits that he signed a contract with U-Haul. Although neither party was able to produce a copy of the agreement, the Defendants submitted an affidavit by its manager, Marty Martin, which stated that he had personal knowledge of the facts and policies and procedures of U-Haul, that he managed the property at the time of the incident overseeing the daily operations, including leasing the spaces, and that a copy of a contract attached to the affidavit was the same as the one signed by the Plaintiff. He further noted that the Plaintiff would not have been allowed to rent the space without signing the contract. The contract provides:

The property stored in the rental space is not is insured by owner-lessor against loss or damage. The occupant shall bear all risks of loss or damage to any and all personal property stored in the rental space. Any insurance protecting the personal property stored in the rental space against fire, theft or damage shall be provided by occupant.

Courts are bound to give legal effect to written contracts according to the true intent of the parties. La.C.C. art. 2045. This intent is to be determined by the words of the contract when they are clear, explicit and lead to no absurd consequences. Abadie v. Markey, 97-684, p. 6 (La.App. 5th Cir.3/11/98), 710 So.2d 327, 330. Furthermore, a lease forms the law between the parties and is to be enforced by the courts. Pendleton v. Shell Oil Company, 408 So.2d 1341, 1342 (La.1982); D & D Investments v. First Bank and Trust, 02-440, p. 9 (La.App. 5th Cir.10/29/02), 831 So.2d 488, 493.

We agree with the decisions in Brown and Cavet that U-Haul is not an insurer of the contents of the storage space. Therefore, the security risks at the facility are not relevant in this case. Furthermore, the Plaintiff signed a contract in which he agreed that U-Haul was not the insurer of his property and that he would |fibe responsible for any losses. The agreement is not ambiguous and he is bound by its terms. Thus, we find that the trial judge did not err in granting the summary judgment as to U-Haul.

LIABILITY OF REPUBLIC

The Plaintiff obtained an insurance policy covering the contents of the storage unit. In Section 4., “Exclusions,” it states in part:

This policy does not insure:

B. Against loss or damage caused by or resulting from theft but this exclusion does not apply to loss by burglary or holdup. “Burglary” means the act of stealing property by forcible and illegal entry into a securely locked storage space evidenced by visible signs made by tools, explosive, electricity or chemicals of such forcible entry upon the exterior of the storage space. The mere absence of a lock or padlock will not constitute visible signs of forced entry. ...

The policy clearly and unambiguously excludes theft losses that are not evidenced by “visible signs” of forced entry. In Delta Decks, Inc. v. U.S. Fire Ins. Co., 463 So.2d 653, 655 (La.App. 4th Cir.1985), the court stated that limiting liability to proof of visible evidence of forced entry is not against public policy, and further noted that in the absence of conflict with laws or public policy, insurers have the right to limit their liability and impose whatever conditions they please upon their obligations under the policy. We agree.

Here, the- Plaintiff admits that there was no visible signs of forced entry and that he used his key to open the unit on April 7, 2000. He argues that the management of the facility was negligent in placing the tag on his lock, thereby notifying thieves that the unit was not properly locked. Regardless of the conduct of the U-Haul employees in tagging the lock, there was no evidence of forced entry of the unit. Therefore, under the policy, there is no coverage for the alleged theft under these circumstances. Thus, the trial judge did not err in granting the summary judgment in favor of Republic.

| ^Accordingly, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be paid by the Plaintiff.

AFFIRMED.

      . Under La.R.S. 9:4757(1), a self-storage facility is not considered a warehouse subjecting a warehouseman to the duty of care and liability for losses of goods, as set forth in the Louisiana Commercial Law, La.R.S. 10:7— 204.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Rod TORREGANO.
    No. 03-KA-1335.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 11, 2004.

      Milton P. Masinter, New Orleans, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Cameron M. Mary, Trial Counsel, William C. Credo, III, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

The Defendant, Rod Torregano, appeals his conviction of one count of sexual battery on a juvenile under the age of fifteen, a violation of La.R.S. 14:43.1 and one count of aggravated oral sexual battery on a juvenile under the age of twelve, in violation of La.R.S. 14:43.4. Both counts involved the Defendant’s daughter. We affirm and remand.

Following the Defendant’s indictment, he pled not guilty and filed several pre-trial motions. A hearing on the motions was set and continued numerous times. The record does not reflect that a ruling was rendered on any of the motions. On May 20, 2002, the Defendant proceeded to trial without objecting to the lack of rulings on his pre-trial motions.

After a two-day trial, a unanimous six-person jury found the Defendant guilty as charged on both counts. He was subsequently sentenced to ten years laimprisonment at hard labor on count one and twenty years on count two to run concurrently with each other.

K.T., the victim, lived in Marrero, Louisiana with her deaf mother, her father, (the Defendant), her younger sister and paternal grandmother from 1997 to 1999 when she was between the ages of six and eight years old. In 1999, her parents separated and in June of 1999, K.T. moved to Florida with her mother and sister to live with her maternal grandmother. While there, the Defendant began telephoning daily to speak with K.T. The child sometimes became upset when the Defendant called and did not want to come to the telephone. At some point, KT.’s grandmother changed her phone number to a private number because the Defendant’s calling “had gotten so bad.” The Defendant later attempted to call K.T. through the telephone operator, but the operator would not let the call go through. KT.’s grandmother thought it was important that K.T. have a relationship with her father, so she offered to take K.T. to a pay phone so she could talk to the Defendant. At that point, K.T. became hysterical and confessed to her maternal grandmother that she did not want to talk to him because he had been touching her.

KT.’s grandmother summoned KT.’s mother to the room and told her that the Defendant had molested K.T. K.T. then told her mother and maternal grandmother what had happened. The police were called and K.T. was interviewed by two women with child protective services. The Florida police subsequently forwarded information pertaining to the sexual abuse to the Jefferson Parish Sheriffs Office. The Defendant was arrested on November 18, 2001.

| ¿According to K.T., on several occasions from 1997 through June of 1999, the Defendant touched her on her chest and her privates, and forced her to touch his private part. The first incident happened in her parents’ room when K.T. was six years old. The Defendant touched K.T. underneath her clothes with his hand and told her not to tell anyone. The next time, the Defendant made K.T. touch his private parts. He told her “to move it and something would come out.” K.T. testified that something white came out. The Defendant again told K.T. not to tell anyone. On another occasion, K.T. woke up to find her shorts down and the Defendant touching her privates with his tongue. The Defendant also showed K.T. pictures of naked men and women in a magazine.

At trial, the Defendant presented the testimony of a neighbor to show that he was never alone with his daughter. The neighbor testified she went over to the Defendant and KT.’s home in Marrero every other day and never recalled a time when the Defendant and K.T. were alone.

On appeal, the Defendant asserts first that the trial judge erred in qualifying Dr. Scott Benton as an expert in the phenomenon of delayed disclosure. Second, he asserts that the conviction should be vacated because the prosecutor violated his constitutional right to compulsory process and to present a defense.

EXPERT TESTIMONY

The Defendant first argues that the trial judge erred in accepting Dr. Scott Benton as an expert in delayed disclosure because he had not interviewed the victim and there was no inquiry into the Daubert criteria. The Defendant further IfiContends that Dr. Benton’s testimony was improperly used to bolster the victim’s credibility.

The State responds that these arguments are new grounds for the objection to the testimony that were not raised at the trial. The State contends that the Defendant objected at trial to Dr. Benton as an expert in the area of delayed disclosures solely on the basis of his qualifications or lack thereof. The State asserts that the Defendant never objected to the admissibility under Daubert of expert testimony relating to delayed disclosure.

To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the alleged error as well as the grounds for the objection. La.C.Cr.P. art. 841(A); State v. Enclard, 03-283, p. 11 (La.App. 5th Cir.6/19/03), 850 So.2d 845, 853. The purpose behind the contemporaneous objection rule is to put the trial court on notice of an alleged irregularity so that it may cure the problem. It is also intended to prevent the Defendant from gambling for a favorable verdict and then resorting to appeal on errors that might have easily been corrected by an objection. Enclard, 03-283 at 11, 850 So.2d at 853. A new basis for an objection may not be raised for the first time on appeal. Id. See also, State v. Winfrey, 97-427 (La.App. 5th Cir.10/28/97), 703 So.2d 63, 77, writ denied, 98-264 (La.6/19/98), 719 So.2d 481.

After questioning Dr. Benton regarding his educational background and experience, the State offered him as an expert in pediatric forensic medicine capable of giving an opinion with regard to delayed disclosure, sexual assault, and | fiSexual abuse. Defense counsel cross-examined Dr. Benton on his qualifications and expertise and specifically objected to Dr. Benton’s qualifications on delayed response. Defense counsel stated:

I have no further questions, Your Honor, but I would object to his qualification on delayed response, Your Honor. That is not his role. He’s not a psychiatrist. He’s not a counselor. He’s — what he does is talk to the child regarding what the child says happens, with the idea—
With the idea is, how does that then flow over into the examination. That is his focus. And for that reason, I don’t think he can be an expert in delayed response, Your Honor.

The State then specifically inquired into Dr. Benton’s experience with delayed disclosure which established that Dr. Benton was very familiar with the phenomenon in child sexual abuse cases, both through literature and his nine years of experience in examining approximately 1,000 children a year. The trial judge then accepted Dr. Benton as an expert in the field of pediatric forensic medicine competent to testify regarding delayed disclosure, sexual assault, and sexual abuse in children.

At trial, the Defendant never challenged the reliability or admissibility of testimony relating to the theory of delayed disclosure. Rather, he only objected to the qualifications of Dr. Benton to testify about delayed disclosure. Thus, the only issue properly before this Court is whether Dr.'Benton was qualified to testify regarding delayed disclosure.

The trial court is vested with wide discretion in determining the competence of an expert witness and its ruling-on the qualification of the witness will not be |7disturbed absent an abuse of discretion. State v. Craig, 95-2499, p. 9 (La.5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). See also, State v. Qutoum, 02-780, p. 7 (La.App. 5th Cir.1/28/03), 839 So.2d 323, 327, mit denied, 03-595 (La.5/30/03), 845 So.2d 1059, citing State v. Craig. In reviewing the decision of the trial court -to. qualify a witness as an expert, the appellate courts will also consider whether a witness has previously been qualified as an expert. Craig, 95-2499 at 9, 699 So.2d at 870.

According to the record, Dr. Benton is the director of pediatric forensic medicine for the children at risk evaluation center at Children’s Hospital. . He testified that he started working at Children’s Hospital in 1992 as a medical resident and has continued to work there as a physician since 1995. He attended Louisiana State University (LSU) medical school and is a clinical associate professor at both LSU and Tulane Schools of Medicine. Dr. Benton is the Fellowship Director for Pediatric Forensic Medicine for the LSU Pediatric Department. Dr. Benton attends several continuing medical training conferences at the national, state and local level that pertain to the evaluation of children who are suspected of being abused and/or neglected. He has written several research papers, two of which are in print and three of which are in publication.

Dr. Benton testified that he is very familiar with the phenomenon of delayed disclosure in child sexual abuse cases. He explained that he has become familiar with delayed disclosure through his experience of examining approximately 1,000 children a year and by characterizing the information he obtains from them as to when the last act of abuse occurred and when the child told someone about the abuse. Dr. Benton also stated the literature on delayed disclosure is very clear. He further stated that he had been qualified in the past by a court of law as an expert in the area of delayed disclosure in sexual abuse of children.

|sThe Defendant has failed to show how Dr. Benton’s qualifications were so lacking that he should not have been qualified as an expert in this area. The fact that Dr. Benton did not personally examine the victim in this case does not impact his expertise. Thus, considering Dr. Benton’s education and experience, we find that the trial judge did not abuse her broad discretion in finding Dr. Benton competent to testify in the area of delayed disclosure.

THE RIGHT TO COMPULSORY PROCESS

The Defendant argues that his conviction should be vacated because the prosecutor violated his right to compulsory process and to present a defense, under both the state and federal constitutions. The Defendant contends that he intended to call his mother to testify on his behalf, but did not because the prosecutor threatened to arrest his mother and charge her as a principal in violating a protective order if she testified. The Defendant maintains that his mother’s testimony was material because she lived in the same household where the alleged abuse occurred and could contradict the claims that the victim was left alone with him and that the victim feared him. The Defendant asserts that, as a result of the threat, he was forced to call his neighbor, a less powerful witness.

The State contends that the Defendant failed to preserve this issue for appeal because he failed to object to the prosecutor’s actions at the trial and failed to proffer his mother’s testimony for review by this Court. The State further asserts that the Defendant failed to demonstrate prejudice, as there is no evidence that his mother refused to testify as a result of the prosecutor’s statement.

After the State rested, the Defendant’s counsel indicated that he would call the Defendant’s mother to the stand. The prosecutor approached the bench with defense counsel and stated that the Defendant’s mother had helped the Defendant violate a protective order issued to protect the victim and her sister and mother. The prosecutor advised that, if the mother testified, he would inquire into the [ aviolation of the protective order during cross-examination and that she would be charged with violating the protective order, or with perjury if she failed to answer truthfully. He further stated that he wanted to let defense counsel know what was coming. After the prosecutor explained the situation regarding the Defendant’s mother and stated what would happen if she testified, defense counsel inquired into the basis of the prosecutor’s knowledge relating to the witness’s actions in connection with the protective order. The prosecutor answered defense counsel’s questions after which defense counsel simply stated, “All right. Give me a minute, Judge, please.” Thereafter, an unrelated discussion about jury charges was held. Defense counsel then called his first and only witness, Oneida Ballet. At no time did the Defendant object or voice any concern regarding his inability to present a defense in light of the prosecutor’s statements pertaining to his mother.

In this case, the Defendant failed to object to the prosecutor’s alleged threat to arrest his mother if she testified and, under the contemporaneous objection rule, the Defendant waived the objection. See: La.C.Cr.P. art. 841(A); Enclard, 03-283 at 11, 850 So.2d at 853. However, we note that, on very rare occasions, the courts have refused to apply the contemporaneous objection rule as a bar to review an error which was so fundamental that it struck at the very essence of the reliability of the fact-finding process. See: State v. Arvie, 505 So.2d 44 (La.1987); State v. Norman, 99-600, pgs. 7-8 (La.App. 5th Cir.2/16/00), 756 So.2d 525, 529, writ denied, 00-971 (La.3/23/01), 787 So.2d 1007. We find that this evidence does not meet that criteria.

In Ame, the court found that the circumstances of the case did not warrant making an exception to the contemporaneous objection rule where the defendant sought appellate review of the prosecutor’s use of his post-arrest silence for impeachment purposes and had not objected to the prosecutors questions that elicited the information. The court acknowledged that there are exceptions to the |inrule, as in State v. Williamson, 389 So.2d 1328 (La.1980) and State v. Green, 493 So.2d 588 (La.1986). In Williamson, the court addressed the issue despite the lack of objection, when the jury was improperly charged with the wrong definition of the charged crime. The Supreme Court reasoned that, “a substantial error in the very definition of the charged crime was of such importance and significance as to violate the fundamental requirements of due process.” Arvie, 505 So.2d at 47. In Green, the court refused to apply the contemporaneous objection rule because there was an omission in a fundamental jury instruction. Another exception was recognized by this court in Norman. There, the defendant alleged that the trial judge made improper comments on the evidence in front of the jury. Norman, 99-600 at 8, 756 So.2d at 529. Although we recognized that a judge’s improper comments can be an exception to the contemporaneous rule, we further found that the judge’s comments in that case were not comments on the evidence, and did not contribute to the guilty verdict.

Here, the facts do not warrant an exception to the contemporaneous objection rule. Although we note that the prosecutor’s threat may be perceived to have had a chilling effect on the defense’s right to call a witness, the right to call a witness is not unlimited. The Defendant must show that the testimony would be relevant, vital and favorable to the defense. See: Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967); United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982); Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir.1988). Furthermore, there is no Sixth Amendment right to a witness who cannot aid the defense. Ashley v. Wainwright, 639 F.2d 258, 261 (5th Cir.1981).

Here, the error complained of cannot be considered “so fundamental that it struck at the very essence of the reliability of the fact-finding process.”. Norman, 99-600 at 8-9, 756 So.2d at 529. Although the Defendant claims that his mother’s 1 ntestimony was material because she lived at the home and could have contradicted the claims that the victim was afraid of him and that the Defendant and the victim were left alone together, the substance of the proposed witness’s testimony is unknown because it was not proffered. In addition, the victim testified that she was not afraid of the Defendant. So the testimony would not be relevant for that purpose. Finally, it is implausible that the Defendant’s mother could have testified that the Defendant, the child’s father, was never home alone with the child during the two-year period when the abuse occurred. Thus, we find that the Defendant is not entitled to a reversal of his conviction on this basis.

ERROR PATENT

We have reviewed the record for patent errors in accordance with La.C.Cr.P. art. 920. See: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1814 (La.App. 5th Cir.5/17/00), 762 So.2d 198. We find two errors requiring action.

First, there is no indication in the record that the trial judge gave the Defendant notice of the registration requirements for sex offenders, as required by La.R.S. 15:543(A). La.R.S. 15:542 requires that all persons convicted of a sex offense must register with the sheriff of the parish where the person resides. La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirements to the Defendant upon judgment and sentencing. This Court has recognized the failure of the trial court to give the notice as an error patent. See: State v. Stevenson, 00-1296, p. 4 (La.App. 5th Cir.1/30/01), 778 So.2d 1165, 1166-1167. In Stevenson, we remanded the matter with an order to the trial judge to inform the defendant of the registration requirements of La.R.S. 15:542 by sending written notification to the defendant within ten days of the opinion and to file written proof in the record that the defendant received such notice. Accordingly, we will remand this case with the same order.

| ^Second, the record does not show that the Defendant was advised of the two-year prescriptive period for filing an application for post-conviction relief, pursuant to La.C.Cr.P. art. 930.8. Thus, in conformity with our policy, we will also order the trial judge to advise the Defendant of the two-year prescriptive period by sending written notice to the Defendant within ten days after the rendition of this opinion and to file written proof in the record that the Defendant received such notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, the Defendant’s convictions and sentences are hereby affirmed. The case is remanded for the trial judge to send written notice to the Defendant of the prescriptive period for filing an application for post-conviction relief, along with a notice of when the period begins to run, and further for the trial judge to send written notice to the Defendant of the sexual offender registration requirements of La. R.S. 15:542. Both notices are to be sent within ten days of this opinion and written proof is to be filed in the record that the Defendant received such notices.

CONVICTIONS AND SENTENCES AFFIRMED; CASE REMANDED FOR NOTICE OF POST-CONVICTION PRESCRIPTION AND FOR NOTICE OF SEX OFFENDER REGISTRATION REQUIREMENTS.

      .La.R.S. 14:43.4 was repealed by Acts 2001, No. 301, § 2. Under La.R.S. 24:171, unless the act that repeals a criminal statute provides otherwise, the offense is not extinguished for those who violate it before its repeal. Because there is no language in Acts 2001, No. 301, § 2 which provides for the extinguishment of La.R.S. 14:43.4, the Defendant was properly charged with the offense. See also: State v. Weaver, 01-467 (La. 1/15/02), 805 So.2d 166, 170, holding that a defendant is to be tried under the statute in effect at the time the offense is committed.

        . A defendant waives all pending motions by proceeding to trial without raising the issue that his pre-trial motions were neither heard nor ruled upon. See, State v. Fletcher, 02-707 (La.App. 5th Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-409 (La. 10/10/03), 855 So.2d 334.

      . The State filed a habitual offender bill of information alleging the Defendant to be a second felony offender based on his conviction on count two and a 1999 conviction for simple burglary. The State also filed a habitual offender bill of information based on count one, but later dismissed it. The habitual offender proceedings are not contained in this record.

      . In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-594, 113 S.Ct. 2786, 2796-2797, 125 L.Ed.2d 469 (1993), the United States Supreme Court set forth the following factors to be considered in determining the reliability and, therefore admissibility, of expert testimony: 1) whether the theory or technique has been subjected to peer review and/or publication, 2) the known or potential rate of error, 3) the testability of the theory or technique, and 4) whether the methodology is generally accepted in the scientific community. This standard was subsequently adopted by the Louisiana Supreme Court in State v. Foret, 93-246 (La. 11/30/93), 628 So.2d 1116, as a guide to determining the admissibility of expert testimony under La.C.E. art. 702. The Daubert factors are designed to "assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue.” Daubert, 509 U.S. at 592-593, 113 S.Ct. at 2796; State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697, 701.

      . In Enclard, the defendant raised the issue on appeal that the admission of certain crime scene photographs was prejudicial. However, at trial, the defendant only objected to the admission of the photographs on the basis he had not been allowed to view the crime scene. This Court addressed the issue of the admissibility of the photographs on the basis of the objection raised at trial which was that the defendant had not been allowed to view the scene.

      . In Winfrey, the defendant argued on appeal that the trial court had allowed the prosecutor to go beyond the scope of cross-examination on redirect. He also argued on appeal that the testimony was based on inadmissible hearsay. This Court found that the defendant had not raised the issue of redirect testimony exceeding the scope of cross-examination at trial but only argued the testimony was based on hearsay. Accordingly, this Court limited its analysis to the issue of hearsay.

      . Recently in Cheairs v. State DOTD, 03-0680 (La. 12/3/03), 861 So.2d 536, 541-542, the Louisiana Supreme Court recognized a distinction between challenging the reliability of the methodology used by the expert, which is addressed by a Daubert inquiry, and the qualifications of the expert to testify competently regarding the matters he intends to address.

      . It is noted that the Defendant is not precluded from challenging the admissibility of Dr. Benton’s testimony relating to delayed disclosure as the issue may be raised through an application for post-conviction relief.

      . The trial judge also erred in failing to specify that the sentences were to be served without benefit of parole, probation or suspension, as required by La.R.S. 14:43.1 and 14:34.4. However, we need not correct this error because of the self-activating provisions of La. R.S. 15:301.1(A), which will cause the Defendant's sentences to be served without benefits regardless of the omission by the trial judge.


author: JjMICHAEL E. KIRBY, Judge.

text:
    WORLD TRADE CENTER TAXING DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF WORLD TRADE CENTER TAXING DISTRICT and Nonresidents Owning Property or Subject to Taxation therein, et al.
    No. 2004-C-0572.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Gary J. Elkins, Richard L. Traína, Jordan B. Monsour, Elkins, P.L.C., New Orleans, LA, for Relator (World Trade Center Taxing District).
    Joseph R. Ward, Jr., Ward & Condrey, LLC, Covington, LA, for Respondent (Ronnie J. Theriot).
    George Denegre, Jr., Robert S. Angelico, Cheryl M. Kornick, K. Todd Wallace, Liskow & Lewis, New Orleans, LA, for Respondent (Greater New Orleans Hotel and Lodging Association).
    Fred L. Chevalier, Raedtha A. Vasquez, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., Baton Rouge, LA, for Respondent (WTC Development Limited Partnership).
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   JjMICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

The World Trade Center Taxing District (relator) seeks supervisory review of the trial court judgment granting defendants, the Greater New Orleans Hotel and Lodging Association and Ronnie J. Theriot, permission to intervene in this litigation. FACTS

Relator is a statutorily implemented “special taxing district and political subdivision of the state”, La. R.S. 33:9039.11, et seq., “Community Development District Act” (the Act), created to foster economic development between the City, the World Trade Center and WTC Development Limited Partnership (WTC) for the renovation, restoration and commercial re-development of the World Trade Center building and parking garage. Relator is statutorily authorized to enter into lease agreements and construction and operating contracts in furtherance of its objective to place the World Trade Center building and garage into commerce. The relator is also authorized: 1) to levy and collect a tax upon the occupancy of hotel rooms, motel rooms and overnight camping facilities within the taxing [^district, 2) to pledge and assign tax proceeds to WTC for WTC to secure financing for a portion of the project, and 3) to execute an agreement with the City for the collection of the tax.

In compliance with statutory provisions, La. R.S. 13:5121, et seq., on February 17, 2004 relator filed a motion for judgment seeking validation of the contemplated agreements, contracts and transactions. The trial court signed an order for notice of the motion for judgment to be advertised in the Times-Picayune on February 21 and 23, 2004. On March 5, 2004 the trial judge heard the matter, and on March 15, 2004 issued an order granting the relief sought in relator’s motion for judgment.

On March 19 and 22, 2004 the Hotel Association and Ronnie J. Theriot, respectively, filed motions to intervene as defendants, opposing relator’s request as unconstitutional because, among other reasons, it diverts public funds to a private property developer. Both the Hotel Association and Theriot requested a new trial in their motions to intervene.

On March 24, 2004 the trial court granted the motions to intervene but did not consider the motion for new trial. DISCUSSION

Relator does not dispute that the Hotel Association and Theriot are interested persons as provided by La. R.S. 13:5126.

Relator argues the lower court’s ruling is erroneous because it permits intervention after a final judgment has been rendered, citing La. C.C.P. art. 1091 |swhich provides for intervention in “a pending action”. In this case, relator contends that once the trial court rendered its March 15, 2004 judgment, there was no “pending action” within which the defendants could intervene. Relator maintains the trial court erred by: 1) concluding that a judgment is not final until the delay for applying for a new trial has run, 2) failing to consider the codal prohibition (C.C.P. art. 1033) against interventions and incidental actions which retard the progress of the main demand, and 3) ignoring the expedited procedural nature of the bond validation statutes.

Relator cites Thibeaux v. State Farm Mutual Automobile Insurance Company, 285 So.2d 363 (La.App. 3rd Cir.1973) for the proposition that an intervention may be filed only while suit is pending and before judgment on the main demand. Thibeaux is inapplicable because it did not involve a bond validation procedure. Moreover, La. R.S. 13:5122 provides in part:

Law applicable; legislative intent

All suits, actions and proceedings of whatever nature affecting the validity of bonds of any governmental unit, or the interest thereon, or the sale thereof, or the election, if any, authorizing the issuance of said bonds shall be brought only in accordance with the provisions of this Title. These provisions shall supersede all other acts and statutes on the subject and be controlling in all such cases notwithstanding the provisions of any other law or charter to the contrary; .... It is hereby declared that it is the intention of the legislature in enacting this law to provide a uniform, expeditious and equitable procedure with due regard for the public fisc and rights of persons in interest for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination of issues relating to bonds is necessary to insure the marketability of bonds in investment channels ... (emphasis supplied)

Further, La. R.S. 13:5126 provides in part:

14Answer by party defendant; intervention by interested parties; ...
... Any property oimer, taxpayer, citizen, or other person in interest may become a party to said proceedings by pleading to the motion within seven days after the second publication thereof, or thereafter by intervention upon leave of court ... (emphasis supplied)

Given the expedited nature of the validation procedure, the legislatively expressed intent to provide an equitable process with regard for the public fisc and rights of interested parties, plus the procedural exclusivity language in La. R.S. 13:5122, it appears that the legislature implemented La. R.S. 13:5126 to vest the trial court with discretion as to intervention to safeguard the rights of interested parties. There is no time limitation as to intervention expressed in La. R.S. 13:5126. Additionally, there is no case law on point to confirm or negate the foregoing conclusion.

CONCLUSION

We find no abuse of discretion and deny this writ application.

WRIT DENIED.

      . The purpose of the validation procedure is to determine compliance with state constitutional standards for the use of public funds and the protection of taxpayers, property owners, citizens and nonresident property owners of the taxing district, as well as all other persons affected by the tax.