author: JjJudge STEVEN R. PLOTKIN.

text:
    STATE of Louisiana v. Henry WEBER.
    No. 2002-KA-0618.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.

      Harry F. Connick, District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee.
    Martin E. Regan, Jr., Kris A. Moe, Re-gan & Associates, P.L.C. New Orleans, LA, Counsel for Defendant/Appellant.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   JjJudge STEVEN R. PLOTKIN.

This is an appeal of a conviction of second-degree murder whereby the defendant was sentenced to life in prison without the possibility of parole or suspension of sentence. Defendant argues several assignments of error. For the reasons set out below, we affirm the conviction and the sentence.

PROCEDURAL HISTORY

On August 24, 2000, defendant, Henry Weber, was charged by an Orleans Parish grand jury with the second-degree murder of Jim Walker. Weber pled not guilty at arraignment. Weber filed discovery motions. On September 15, 2000, a hearing was held on the motion to suppress identification and motion to suppress statements. The trial court denied the motions.

Prior to commencing trial the state filed two motions in limine, one to preclude unsubstantiated allegations of evidence tampering, and one to preclude questions pertaining to witnesses’ acts or vices for which they have not been convicted. The trial court granted the motions. Trial was held on November 15, 2000. The jury found the defendant guilty as charged.

laOn November 29, 2000, the defendant filed a motion for new trial, which the court denied. The court sentenced defendant to life in prison without benefit of probation or parole.

On November 14, 2001, defendant filed a supplemental motion for new trial based on newly discovered evidence. On March 22, 2002, the trial court heard testimony and then denied the motion.

STATEMENT OF FACTS

Roy Brumfield, who was twenty-six at the time of trial, testified that he and Jim Walker had been friends for most of their lives and that Walker was like a family member. Shortly before the murder, Brumfield, the victim and two other individuals entered an abandoned building in the Florida Housing Project to consume heroin. The victim snorted heroin while Brumfield and the others took it intravenously. Brumfield related that after the victim had finished snorting the heroin he stepped outside and that he followed him. When Brumfield exited, the victim was sitting on his bicycle. Brumfield heard shots ring out and witnessed Walker fall to the ground. He stated that Walker struggled to push the bicycle from him but was unable to do so. Brumfield observed two subjects in the courtyard and identified the defendant as the shooter. Brumfield was standing by some bushes as he watched Henry Weber continuing to fire a gun as he drew closer to the victim until he stood over him. At the time, Brumfield believed that as many as ten shots may have been fired. He also testified that he was not sure how many shots were fired.

When the shooting stopped Brumfield ran. He returned to the scene as the police were arriving and observed the motionless body of Jim Walker and grabbed him. The officers pushed him away. Brumfield was taken to |sthe police station and questioned but he did not identify Henry Weber as the perpetrator. Brum-field was asked to identify the defendant, who was at the station, and although he acknowledged that he knew him he did not identify him as the perpetrator. Brum-field explained that identifying Weber was not an option for him at that time. His testimony was essentially that where he lived people take care of things themselves, whether one describes it as an eye for an eye or payback, and that he planned to do so.

An officer was asked to drive Brumfield home, but Brumfield requested to be taken to Charity Hospital where he admitted himself for substance abuse treatment. While at Charity, Brumfield met with Jane Walker and told her what he had seen when her brother was murdered. After he was discharged, Brumfield called the Fifth District station and subsequently met with Detective Polito. He gave a taped statement and identified Henry Weber as the perpetrator. He also identified Weber from a photographic lineup.

Officer Leflore James Young Sr. and his partner Officer Benja Johnson were dispatched to the scene of the shooting at the intersection of Gallier and Florida. When they arrived, two other officers were already there. Young observed the victim lying on the ground with apparent gunshot wounds. He also observed a bike, a shirt, a hat and some blood on the sidewalk. Young notified EMS and secured the crime scene. Young began looking for evidence that would be left from a gun and marked the location of six .45 caliber shell casings which were discovered in the courtyard.

In the course of his investigation, Officer Young spoke with three witnesses who identified a suspect named Henry who lived on Dorgenois Street. The officer was able to determine that Henry Weber was the individual to whom the witnesses were likely referring.

pSubsequently, Officer Young and his partner relocated to the crime scene to see if they might have overlooked any evidence as there was a question as to how many times the victim had been shot. As the officers approached, they observed a subject bent over in the bushes at the location of the shooting looking for something. As they neared, the subject looked directly at the car and then ran. Officer Johnson recognized him as the suspect Henry. The officers observed the defendant enter the abandoned building at the location. Officer Johnson went around to the front while Officer Young entered the rear. Young heard a noise coming from upstairs and went to investigate. On the third floor he observed the same subject who they were pursuing standing with something in his hand. He ordered the defendant to drop the object. After handcuffing and patting the defendant down for weapons, Officer Young retrieved the object and found it be a sock containing a box of .45 caliber bullets. Officer Young advised the defendant of his rights and informed him that he was being held in connection with the recent murder. A crime scene technician was summoned to retrieve the evidence and the defendant was transported to the police station.

Jane Walker, the victim’s sister, testified that she received a call on the night of the shooting informing her that her brother had just been shot. She ran to the scene and saw her brother lying motionless on the ground. While on the scene, she spoke with a police officer and she also saw Brumfield in a police car. He motioned ■for her to speak with him but the car drove off before they could talk. Two or three days later, Walker met with Brum-field at Charity hospital. Subsequently, she met with Detective Polito at the Fifth District station and identified Henry Weber from a photographic lineup.

1 ^Detective Frank Polito, a member of the Fifth District homicide Division, testified that when he arrived at the scene of the shooting the victim had already been removed by EMS. Detective Polito spoke with Roy Brumfield and although the detective did not develop any initial suspects after speaking with him, he had him transported to the Fifth District station because he was convinced that Brumfield knew more about the shooting than he was saying. The detective identified a number of photographs and diagrams of the crime scene depicting the area and the evidence that was recovered.

Once at the station Brumfield related that he had been in an abandoned building doing drugs with two other individuals, and he had walked down stairs and was at the doorway when he witnessed the shooting. Detective Polito testified that Brum-field was reluctant to provide any information as to the identity of the shooter.

Polito related that after the defendant was brought in, he brought Brumfield to make an identification. Brumfield knew that it was Henry Weber but did not say that he was the one who shot Jim Walker. Polito related that Brumfield was shaking when he looked at Weber through the two-way mirror. Four or five days after the occurrence, Detective Polito was contacted by Jane Walker. He took a taped statement from her and then had her view a photographic lineup of Henry Weber. Subsequently, Roy Brumfield contacted the Detective Polito. Polito took a taped statement from Brumfield and showed him a photographic lineup. Brumfield identified Henry Weber. Subsequently, Polito obtained an arrest warrant for the defendant. Detective Polito also obtained a search warrant for Weber’s residence. Weber was arrested at his home, and a search of the location did not result in any evidence being recovered.

| Kenneth Leary testified as an expert in ballistics and firearms identification. He tested the six bullet casings recovered at the scene and determined that they were from .45-caliber ammunition and that they were all fired from the same weapon. Leary also tested a pellet submitted into evidence in the case and determined that it was from .45 caliber ammunition.

Officer Karl Palmer, a crime scene technician, testified that he processed the crime scene. He photographed the specific evidence and the overall scene, and he completed a diagram of the scene identifying the location of all the evidence that was collected. Officer Palmer also processed the scene in the abandoned building where the box of bullets was recovered.

Dr. William Newman testified as an expert in pathology and as an expert in the examination and procedures of an autopsy. Dr. Newman performed the autopsy of Jim Walker. He related that Walker suffered from six gunshot wounds. Identifying each by letter, he related that wound “A” struck the victim from the rear between his fourth and fifth ribs. The bullet traveled at a slightly upward angle through the lung and then exited the chest. Wound “B” entered the chest from the front and exited by the spine at a downward angle. The bullet caused extensive damage to the heart. Wound “C” entered the left buttock, traveled in an upward angle and entered the abdomen causing extensive damage to the colon. Wound “D” was a superficial wound through the upper thigh. It traveled at a slightly upward angle. Wound “E” was a superficial wound to the triceps, and wound “F” was located in the victim’s upper arm or shoulder. In all, only wound “B” was from the front and at a downward angle. A blood test reflected marijuana and heroin use.

\ .ERRORS PATENT

The district court denied defendant’s motion for new trial on November 29, 2000, and sentenced defendant that same day. La. C. Cr. P. article 873 requires a twenty-four-hour delay between the denial of a motion for new trial and sentencing, unless the defendant waives such delay. The minute entry of sentencing does not reflect that the appellant waived the delay. However, the failure to observe the delay is deemed harmless error where the defendant does not challenge his sentence on appeal. State v. Collins, 584 So.2d 356, 359 (La.App. 4th Cir.1991). In this case no error is raised as to the defendant’s sentence and, accordingly, the failure of the trial court to observe the delay period is harmless error.

ASSIGNMENT OF ERROR NUMBER 1

The defendant argues that he has been deprived of his right to an appeal by the unavailability of a complete trial transcript.

The Louisiana Constitution, article I, section 19 (1974), provides in pertinent part: “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” Furthermore, La. C. Cr. P. article 843 requires that in felony cases all proceedings shall be recorded, including the testimony of witnesses.

In State v. Diggs, 93-0324 (La.App. 4 Cir. 6/29/95), 657 So.2d 1104, the unavailability of an officer’s complete testimony was found to necessitate a new trial. Id. at p. 3, 657 So.2d at 1105. In Diggs, the defendants were convicted of distribution of cocaine based upon alleged sales to undercover police officers. While three officers had participated in the undercover operation, only two of them testified at trial. No record of the cross-|examination8 or redirect exam, if any, was available as to one of the officers; only the beginning of his direct examination was transcribed. This court held that this omission necessitated a new trial because it could not be determined whether the missing testimony was substantial or inconsequential, or whether any objections or motions had been made during the officer’s testimony. Id.

In State v. Ford, 338 So.2d 107 (La.1976), the Louisiana Supreme Court stated:

Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it, which is immaterial to a proper determination of the appeal, would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial.

338 So.2d at 110.

In Ford, the court found the omission of the testimony of four State witnesses, voir dire, and opening statements made it impossible for counsel, who was appointed for the appeal, to adequately review the record for errors. Id.

In the instant case, the trial transcript periodically notes that a statement was “inaudible.” Review of the transcript reflects that only short phrases or statements or a series of words were “inaudible.” The transcript as a whole is coherent and understandable. The overwhelming majority of the testimony of all witnesses was recorded, with no large omissions. The bases of the objections made by counsel as well as the court’s rulings are clearly understandable.

1 flDefendant contends that he was prejudiced by multiple inaudible references during Officer Palmer’s testimony about the photographs of the bullet casings. Other than the general reference to Officer Palmer’s testimony regarding the photographs of the casings, defendant does not identify any particular portions of the transcript. Moreover defendant does not suggest how he is prejudiced. The testimony at issue is largely perfunctory and entails what each picture represents or relates to the manner in which the photograph was taken. In all, Officer Palmer’s testimony, despite the presence of a few inaudible words or phrases is quite intelligible.

Defendant further contends that he is prejudiced by an inaudible reference by Jane Walker regarding any plausible animosity towards the defendant. The testimony at issue is as follows.

Q. You have absolutely no reason to come in here except because of your brother, correct?
A. Yes.
Q. You have no animosity towards Mr. Weber?
A. (IA)
Q. Never had any problems with him before this incident?
A. No.

While it is conceivable that Walker’s inaudible response was “yes,” her other testimony suggests that she did not have any animosity towards the defendant. Furthermore, whether Jane Walker had any animosity towards the defendant is largely inconsequential as her testimony bore little if any on relevance to the defendant’s guilt or innocence.

Finally, defendant suggests that he is prejudiced by certain inaudible portions of Roy Brumfield’s testimony. Defendant contends that the pattern displayed by where the bullet casings were found suggest more than one shooter. Defendant further notes that “critical to appellate review is Roy Brumfield’s testimony about who else was present the evening of the shooting.” Defendant does not identify any portion of the transcript that | inlimits appellate review in regard to these to concerns. It should be noted, however, that Officer Leary testified that all the bullet casings recovered at the scene were fired by the same weapon. Accordingly, the supposition that there was more than one shooter is difficult to consider as plausible. Regarding Brumfield’s testimony of what other parties were present, his testimony is quite clear, that he observed two subjects but was only able to identify the defendant whom he observed fire the weapon. He also related that there were a number of other people in the courtyard.

Defendant further contends that Brum-field’s testimony is simply indecipherable. Although the majority of inaudible references in the transcript are found during Brumfield’s testimony, they are largely inconsequential and do not inhibit appellate review. The assignment or error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant alleges the evidence was insufficient to establish his guilt beyond a reasonable doubt. The Due Process Clause of the Fourteenth Amendment protects a person accused of a crime from being convicted unless the State proves every element of the offense charged beyond a reasonable doubt. U.S. Const. Amend. 14. This constitutional protection is the basis of a reviewing court’s duty to determine the sufficiency of the evidence used to convict a defendant. State v. Monds, 91-0589, p. 4 (La.App. 4 Cir. 1/14/94), 631 So.2d 536, 539. In deciding whether evidence is constitutionally sufficient to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty L beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817, 820 (La.1987).

The appellate court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305, 1311 (La.1988); State v. Monds, at p. 4, 631 So.2d at 539. If the reviewing court finds that no rational trier-of-fact, viewing all the evidence from a rational pro-prosecution viewpoint, could have found the defendant guilty beyond a reasonable doubt, the conviction cannot stand constitutional muster. Mussall, 523 So.2d at 1311. When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden to establish every element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Smith, 430 So.2d 31, 45 (La.1983).

The reviewing court, however, is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992); Mussall, 523 So.2d at 1311. As noted by the Supreme Court, "the court is not to substitute its judgment of what the verdict should be for that of the jury, but at the same time the jury cannot be permitted to speculate if the evidence is such that- reasonable jurors must have a reasonable doubt.” Mussall, 523 So.2d at 1311 (citing 2 Charles Allen Wright, Federal Practice & Procedure, Criminal 2d, Sec. 467, at 660-661 & n. 23 (2d ed.1982)).

Defendant alleges that in light of the fact that Roy Brumfield did not identify the defendant as the perpetrator when he first viewed him, a rational jury should not have found the defendant guilty. Defendant adds that Brumfield’s explanation for not immediately identifying the defendant was h ¡¿hat he was scared, is implausible as he testified that he had no problems with the defendant and considered him an associate of sorts. Defendant misconstrues the record in this regard. Brum-field testified that he did not immediately identify the defendant because he considered acting on the victim’s behalf himself. Brumfield never testified that he remained silent out of fear. Brumfield did testify that he had nothing to gain by testifying and that in fact he was likely in jeopardy for doing so. In any event, it is well settled that credibility decisions by the jury should not be disturbed unless such finding is clearly contrary to the evidence. State v. Harris, 624 So.2d 443, 447 (La.App. 4 Cir.1993). A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992). The critical inquiry for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt. Id. Here the record evidence supports a finding by this court that the jury did not abuse its discretion in finding the defendant guilty.

Defendant further contends with respect to this assignment that inaudible responses by Brumfield require reversal. Defendant states that from the record it is impossible to tell where Brumfield was standing when he observed the shooting, “whether he could see anything from inside the dark hallway where he and Lorenzo were shooting heroin,” and that it is impossible to tell whether it was possible for Brumfield to actually see anything. The transcript clearly reflects that Brumfield was standing by a bush, the location of which he identified from a photograph, when he observed the shooting. Defendant further notes that Brumfield testified at one point that he could see around the corner. Where the defendant was | ^standing and what he was able to see were clearly identified for the jury by Brumfield through the use photographs and diagrams of the area.

Finally, defendant suggests that a jury could not have excluded every reasonable hypothesis of innocence based on the testimony of Brumfield. The only such hypothesis suggested by defendant was that there was another shooter. As discussed with respect to assignment of error number one, the evidence failed to suggest that there was more than one shooter. Furthermore, no evidence was introduced to suggest that someone other than the defendant shot the victim. The assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends the trial court erred in denying the motion to suppress defendant’s statement. The trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. Before a confession or inculpatory statement may be introduced into evidence the State must affirmatively show, beyond a reasonable doubt, that the confession or inculpatory statement was free and voluntary. State v. Rogers, 476 So.2d 942, 944 (La.App. 2 Cir.1985) (citing State v. Glover, 343 So.2d 118 (La.1977)). When credibility and weight of testimony relating to the volun-tariness of a confession for the purpose of admissibility are at issue, the trial court’s determination will not be reversed on appeal in the absence of a clear abuse of discretion. State v. Brown, 486 So.2d 876, 878 (La.App. 1 Cir.1986) (citing State v. Brumfield, 464 So.2d 1061 (La.App. 1 Cir. 1985)).

The record reflects that while the defendant was in custody on the night of the murder he was questioned regarding his whereabouts that |uevening, and he related that he was with his girlfriend. At the motion to suppress, Detective Polito testified that the officers who initially detained the defendant advised him of his rights. On appeal defendant contends that he was not advised of his rights; however, defendant presented no testimony or evidence at the hearing to refute the testimony of Detective Polito. Accordingly, there is nothing to indicate the trial court erred in denying the motion to suppress the statement.

ASSIGNMENT OF ERROR NUMBER 4

The defendant contends the trial court erred in denying the motion to suppress the identification. In State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, the Louisiana Supreme Court discussed the criteria for admissibility of identification evidence at trial:

The defendant has the burden of proof on a motion to suppress out-of-court identification. To suppress an identification, the defendant must first prove that the identification procedure was suggestive.... ' However, even when suggestiveness of the identification process is proved by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentifieation as a result of the identification procedure.

Id. at p. 14, 753 So.2d at 812 (citations omitted).

Defendant argues that the lineups were suggestive because Detective Polito advised both Roy Brumfield and Jane Walker that Henry Weber was a suspect before showing them a photographic lineup. Defendant cites the following testimony by Detective Polito from the hearing on the defendant’s motion in support of his argument:

Q. Did you identify Henry Weber as a suspect before you showed Ms. Walker the photograph?
A. Yes
hsQ. Did you identify Henry Weber as a suspect before you showed Mr. Brum-field the photograph?
A. Yes.

Mthough neither question indicates that Detective Polito informed either Brumfield or Walker that Henry Weber was a suspect before presenting the lineups to them, and, admittedly, his testimony could be misconstrued on this point; the testimony that immediately followed eliminates any other interpretation.

Q. So Ms. Walker knew she was supposed to pick out the photograph of Ms. (sic) Weber?
A. No
Q. But she knew the suspect was Mr. Weber?
A. I don’t know whether she did or not.
Q. But didn’t you just say you informed her that the suspect was Mr. Weber.
A. No, I didn’t.

There is nothing to suggest the identification procedure was suggestive. Furthermore, the record reflects that both Roy Brumfield and Jane Walker were well acquainted with the defendant prior to the shooting which substantially diminishes the possibility of misidentifieation.

ASSIGNMENT OF ERROR NUMBER 5

Defendant contends the trial court erred in granting the state’s motion in limine to enjoin the defense from questioning Roy Brumfield regarding any prior use of heroin. La. C.E. article 609.1(B) provides that generally, “only offenses for which the witness has been convicted are admissible upon the issue of his credibility ...” and that inquiries as to such matters as arrests are not admissible upon the issue of credibility. However, defendant |1ficontends that he was denied the ability to question Brumfield’s ability to perceive events and was therefore denied his constitutional right to confront his accuser. The record reflects that the Roy Brumfield admitted being under the direct and immediate influence of heroin at the time he witnessed the murder. The witness openly testified that he had used heroin intravenously only moments before the shooting. Furthermore, Brumfield essentially admitted to being a heroin addict when he related that he admitted himself to Charity Hospital to be treated for substance abuse. In ruling on the motion the trial court limited its application to the defense bringing up any arrests and specifically noted that the motion would not limit defense counsel from questioning a witness’s ability to observe or remember. Furthermore, the record reflects that defense counsel cross-examined the witness regarding the effects of the heroin on him on the night in question. Accordingly, the assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 6

Defendant contends the trial court erred in granting the state’s motion in limine to prevent the defense from presenting evidence that the police tampered with or planted evidence. Defendant alleges that he was prevented from introducing evidence that the defendant was not holding the sock containing the bullets and that it was not found anywhere near his person. The record reflects that defense counsel cross-examined Officers Young, Johnson and Palmer. Defense counsel also cross-examined the crime scene technician who recovered the evidence regarding the recovery of the sock and the alleged discrepancy between the report and the officers’ testimony. Defendant does not suggest here, nor did counsel offer any indication when the motion was heard, as to what evidence he sought to introduce was |17excluded by virtue of the motion. Absent some indication as to what evidence, if any, that the defense was precluded from introducing, there is nothing for this court to review. The assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 7

Defendant alleges that the prosecutor’s reference to the defendant’s decision to proceed to trial and the trial court’s response warrant reversal. The prosecutor began his opening statement as follows: “Now, ladies and gentleman, let me tell you, from the beginning, this is not a perfect case. If it was a perfect case, Ladies and Gentleman, we wouldn’t be here. Would have pled guilty or would have done something else.”

An objection was entered and the trial court responded, “We all know what the defendant did. Come on let’s go.”

Defendant contends that the prosecutor violated his right to a jury trial by implicating his failure to plead guilty. Certainly, “[a]n accused has the absolute right not to plead guilty.” State v. Jones, 98-1165, p. 4 (La.App. 3 Cir. 2/3/99), 734 So.2d 670, 672. Here, however, for whatever reason, the prosecutor simply chose to downplay the strength of the State’s case and in doing so noted that the defendant had pled not guilty. The comment is a far cry from that in Jones where the prosecutor’s closing arguments chastised the defendant for not taking responsibility for his actions by pleading guilty in contrast to his co-defendant, who had pled guilty.

As to the comment by the judge, defendant contends that the remark violated the no-judge-comment rule of article 772 of the Code of Criminal Procedure and was prejudicial to him. Article 772 provides:

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any 118witness, or giving an opinion as to what has been proved, not proved, or refuted.

Defendant contends that the judge essentially proclaimed the defendant guilty. Looking at the comment outside of its context, the argument could be seen as having merit; however, in its context the comment clearly referenced the fact that everyone was aware that the defendant had pled not guilty. The comment was also a clear effort by the trial court at chastising the prosecutor for what was a poor choice of a topic for discussion in his opening statement, which properly should be limited to a discussion of the evidence to be presented.

In any case, the record reflects that trial counsel failed to object to the trial judge’s remark, which precludes appellate review of the assignment of error. La. C. Cr. P. art. 841; State v. Michel, 422 So.2d 1115, 1121 (La.1982); State v. Warner, 93-0216, p. 5 (La.App. 4 Cir. 7/27/94), 641 So.2d 684, 686; State v. McLaren, 619 So.2d 664, 666 (La.App. 4th Cir.1993).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 8

Defendant contends the trial court erred in denying the motion for new trial. In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably have produced a different verdict. State v. Hammons, 597 So.2d 990 (La.1992); State v. Knapper, 555 So.2d 1335 (La.1990). The trial court has |13much discretion in ruling on a motion for new trial. Id. However, if the trial court exercises this discretion arbitrarily and the judgment is unjust, the reviewing court should set aside the judgment and order a new trial. Id.

At the hearing on the motion for new trial, Donzola Williams testified that in June of 2000, she heard rumors that her brother, Antonio Williams, had been involved in a murder of a subject named “Winkie” in the Florida Housing Project. She related that she questioned her brother about it and that he told her that “He got the nigger.” Ms. Williams interpreted his brother’s statement to mean that he had killed him. Williams related that “Winkie” was trying to get him and that he got him first. Antonio Williams also related to his sister that he had been questioned by the police in connection with the murder. Sometime near the time that the defendant was being sentenced, Ms. Williams learned from the defendant’s sister that he had been convicted of murder. Ms. Williams also related that she learned that the victim, Jimmy Walker, was also known by the moniker, ‘Winkie.” Ms. Williams’ brother was himself the victim of a homicide on May 14, 2001.

The state argued at the hearing on defendant’s motion that the testimony was of little import in that Antonio Williams had been a suspect in the crime all along and that Roy Brumfield’s testimony was that there were two subjects involved in the shooting. Furthermore, the trial court related in denying the motion that she found the testimony “tentative, speculative, and unpersuasive.” Given that the State’s case was that the defendant was not alone when he killed Jim Walker the testimony of Donzola Williams, even if Incredible would not exculpate Henry Weber. Accordingly, the trial court did not abuse its discretion in denying the motion.

ASSIGNMENT OF ERROR NUMBER 9

Defendant contends the trial court erred in admitting hearsay evidence. Officer Young testified over defense objection that while at the crime scene he spoke to approximately three witnesses who while refusing to give their names identified a male named Henry who lived on Dorgenois Street as the perpetrator. Officer Young further testified that he determined that the defendant lived on Dorgenois and that he believed he was the individual referred to by the witnesses.

Hearsay is a statement made out of court offered as evidence in court to prove the truth of the matter asserted by the statement. La. C.E. art. 801(C); State v. Everidge, 96-2665, p. 7 (La.12/2/97), 702 So.2d 680, 685. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. In order to fall within the definition of hearsay, the statement must be offered to prove the truth of the statement’s contents. Everidge, 96-2665 at p. 7, 702 So.2d at 685.

Defending the admission of the testimony, the State argues that the testimony was properly admitted pursuant to the res gestae exception to the hearsay rule as it explained the course of action taken by Officer Young during the first few hours of the investigation. See State v. Granier, 592 So.2d 883, 888 (La.App. 4 Cir.1991).

However, in State v. Hearold, 603 So.2d 731 (La.1992), the Louisiana Supreme Court explained:

| Generally, an explanation of the officer’s actions should never be an acceptable basis upon which to admit an out-of-court declaration when the so-called “explanation” involves a direct assertion of criminal activity against the accused ... Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an “explanation exception.” The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted.

Id. at 737-38.

In this case, Officer Young’s testimony was impermissible hearsay, the effect of which must be assessed under the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The erroneous admission of hearsay evidence mandates reversal of a conviction only when there is a reasonable possibility that the evidence might have contributed to the verdict. State v. Wille, 559 So.2d 1321, 1332 (La.1990). Factors to be considered include the importance of the evidence to the State’s case, the presence or absence of additional corroboration of the evidence, and the overall strength of the State’s case. Id.

Although the State’s case rested primarily on the testimony of a single eyewitness, his testimony was essentially un-controverted. Even though Brumfield was not immediately candid with the police, it is evident that the jury found the witness’ defendant’s testimony credible. Furthermore, the defendant’s unexplained presence at the scene of the crime shortly after the police had departed, his possession of a box of bullets of the same caliber as the murder weapon, and his attempt at flight were also no doubt persuasive evidence to the trier of fact. Furthermore, Roy Brumfield’s account of the shooting, that the victim went down upon the first shot and did not rise again, was corroborated by autopsy in that all but one bullet entered the victim’s body at an upward angle. The defendant did not present an alibi asj^to his whereabouts at the time of the crime, nor was any testimony offered to indicate that Roy Brumfield had any motive to testify falsely. The inadmissible hearsay, although it identified the defendant as the alleged perpetrator, was brief and was without elaboration. Accordingly, one can conclude that the admission of the statement did not contribute to the verdict, which was strongly supported by other evidence.

CONCLUSION

Based upon the foregoing, we hereby find no reversible error in the proceedings below. We therefore affirm the conviction and sentence.

AFFIRMED.

      . Although the State argues in passing that the evidence was discoverable before trial, there is little to indicate that the failure to unearth Donzola Williams as a potential witness is attributable to a lack of diligence by the defendant.


source: Caselaw Access Project

author: | t STEVEN R. PLOTKIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jason GRAINER.
    No. 2002-KA-0703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.

      Harry F. Connick, District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Brad Parker, Tulane Law School Community Service Program, Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   | t STEVEN R. PLOTKIN, Judge.

The defendant appeals his convictions and sentences for attempted armed robbery and possession of stolen property. For the reasons below, we affirm the decision of the trial court.

PROCEDURAL HISTORY

Jason Grainer and Kirk A. Baham were each charged by a five count bill of information with armed robbery (counts one through four), violation of La. R.S. 14:64, and possession of a stolen automobile valued at more than $500.00 belonging to Ms. Delores Moffett, violation of La. R.S. 14:69. At their arraignments, Grainer and Baham pled not guilty. The trial court granted the motion to sever the trials of Grainer and Baham. The State amended the bill of information, to which Grainer pled not guilty, to correct the name of the count two armed robbery victim. The trial court denied motions to suppress the evidence, and once again granted a motion for severance. After a jury trial, Grainer was found guilty of attempted armed robbery and guilty of stolen property. The court sentenced Grainer to four concurrent forty-year sentences for the four attempted armed robbery convictions and to one concurrent ten-year sentence for the |2possession of stolen property conviction. Grainer was adjudged a third felony offender. At sentencing the trial court vacated Grainer’s earlier sentence as to count one and re-sentenced him to forty years, without benefit of parole, probation or suspension of sentence, with credit for time served, sentence to run concurrently with the sentences in counts two through five.

STATEMENT OF FACTS

Ms. Delores Moffett testified that on the morning of Sunday, December 10, 2000, she reported that her 1994 blue Buick automobile had been stolen from her home sometime between 6:00 p.m. on December 9th and 10:00 a.m. Sunday December 10, 2000. The police later, found the car. When she recovered it, the car required extensive repairs. Ms. Moffett produced evidence that she purchased the car for $20,000. She testified that she did not know the defendant, and did not give him permission to use her car.

Ms. Lynette Williamson, a Sol’s Jewelry Store employee, testified that on December 10, 2000, at approximately 5:30 p.m., she and co-employee, Sadiq “Sam” Hirani, stood outside the store smoking, while Kirk Baham was in the store looking at jewelry. She noticed a light colored Buick in the parking lot. The car caught her attention because it was running, and was the only non-employee vehicle in the lot. Before she finished her cigarette, Jason Grainer exited the car brandishing a gun, and pushed her into the store. Kirk Ba-ham, also armed, pushed the four store employees to the bathroom in the rear of the store. Baham took money from the employees’ pockets while Grainer removed jewelry from the showcases, and rifled the cash register. Next, Grainer escorted Hirani to the front of the store to remove the tape from the store’s surveillance camera. Ms. Williamson viewed the videotape in court, and identified Mohammed Mohi-dudin 13and Fahim Akhtar, who were also robbed at gunpoint. Ms. Williamson identified the defendants and explained their actions as depicted in the video. She identified the green jacket worn by Grainer at the time of the robbery.

The Seventh District police station received notice via silent alarm system of an armed robbery in progress at Sol’s Jewelry Store in New Orleans East. Approximately ten minutes after the defendants entered the store, the police surrounded the building. When the robbers saw the police outside the store, they attempted to exit the store through a rear wall. When their attempts proved futile, and they found themselves surrounded, they held four store employees hostage while negotiating with police. After more than three hours the defendants surrendered, and were identified by their victims, as well as the store surveillance tape, as the perpetrators. The victims feared for their lives, and tried to talk the defendants into surrendering, going so far as telling the defendants that they would tell the police that the defendants were customers, and that the real robbers had escaped. When the victims and the defendants exited the store, Ms. Williamson and her co-employees identified the defendants as the perpetrators. She stated that Baham and Grainer acted together.

Detective Jason Gagliano testified that while he was on duty on December 10, 2000, the police dispatcher notified him of a robbery in progress at Sol’s Jewelry Store on Lake Forest Boulevard. He and Detective David Patrolia drove to the scene where they met other task force officers. Detective Gagliano observed a suspect wearing a green jacket in the store holding a gun to the store manager’s head, and another to his back. He observed the suspect repeatedly walk the |4manager to the front of the store and then to the back, in an attempt to learn the location of the police. Detective Gagliano called in the SWAT team to negotiate with the suspects, while he and other officers maintained a perimeter around the store. Through the negotiations, Gagliano learned that the suspect wearing the green jacket was Jason Grainer. About three hours after the incident began, all the occupants of the store exited the premises and were handcuffed by police. As Gagli-ano inspected the store premises, he saw garbage bags full of jewelry on the floor, damage to store walls, a surveillance system VCR pulled off a shelf and other signs of damage and disarray. Gagliano also inspected the blue Buick vehicle parked in front of the store with its motor running. He observed that the steering column had been defeated and that the car was operating without a key in the ignition. Further investigation indicated that Ms. Delores Moffett, the owner of the vehicle, reported it stolen earlier that morning.

Detective David Patrolia corroborated Detective Gagliano’s testimony. Detective Patrolia also identified the physical evidence retrieved from the crime scene, a mask, green jacket and black gloves worn by Grainer, and the videotape recovered from the store surveillance system. As the tape was played for the jury, Patrolia identified Grainer in the tape holding a gun on a victim, reaching into the cash register and removing jewelry from display cases. He also testified that there were only six people in the store during the robbery, the four employees, Baham, and Grainer.

Detective Byron Adams testified that he arrived on the scene while the defendants held hostages. He helped secure the rear of the building and acted as liaison between the people inside the building and their families. After the robbers and the hostages came out of the store, Adams moved to the area where they were | (¡being held, and assisted in debriefing the witnesses/victims and processing the perpetrators. After initially refusing to give a statement to the police, Grainer waived his rights and gave a statement to Adams. In his statement, Grainer admitted that he was involved in the robbery but insisted he acted only as a “look out” for Kirk Baham, who he said planned and executed the robbery while Grainer “just stayed in the back with the people.” Grainer denied being armed at any time or holding a gun on any of the victims. Further, he said Baham turned on him, and treated him as a hostage along with the store employees.

Mohammed Mohidudin, the manager of Sol’s Jewelry Store, testified that on the day of the robbery, Kirk Baham entered the store ostensibly shopping for platinum jewelry. Baham jumped over the jewelry counter, and put a gun to Sadiq “Sam” Hirani’s head as Grainer herded him, Ms. Williamson, and Akhtar to the store bathroom at gunpoint. Mohidudin identified the green jacket worn by Grainer during the robbery, and identified the perpetrators in the store video recording of the events of December 10, 2000. At one point, the robbers removed Sam from the group to unlock the store’s cash register and display cases. While Mohidudin, Ms. Williamson and Akhtar were held in the bathroom, they were robbed at gunpoint of their valuables. Mohidudin testified that Hirani talked Grainer into giving up his gun by convincing him that all of the victims would tell the police that he was a customer caught up in the robbery.

Sadiq “Sam” Hirani testified that he had been standing at the door of the store with Ms. Williamson when he noticed a car nearby with two men in it, one wearing a hood and green jacket, the other a black jacket. The man in the black jacket went into the store and asked about jewelry. Hirani felt uneasy about the situation so he went behind the counter so he would be able to reach the “panic |6button” on the store’s alarm system. Kirk Baham pointed a gun at Mm, as Jason Grainer rushed into the store. All of the people in the store were forced into the bathroom. The robbers removed Hirani from the bathroom and forced him to open the store safe and display cases. Grainer and Baham shouted to each other about taking money and jewelry. Hirani eventually talked Grainer into hiding the guns and pretending to be a customer, trapped in the store when Baham robbed it. When the hostage situation ended, Hirani identified Grainer as one of the armed robbers.

Jason Grainer testified that he was a customer at Sol’s Jewelry Store the night of the robbery. He had gone to purchase jewelry, and as soon as he entered the store, a masked gunman forced him to the rear of the store along with the store employees. He demed any involvement in the robbery, and said he did not know Kirk Baham. When he exited the store with the other hostages, the police arrested him, and charged him with armed robbery. The police transported him to the Seventh District police station, where he was detained for three hours. Further, he said Detective Adams forced him to sign a confession, threatening that he would never see his child again if he did not cooperate.

ERRORS PATENT

Counsel for defendant initially filed a brief requesting a review for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. According to these cases, a brief filed on behalf of the indigent defendant by appointed counsel which provides “a detailed discussion of various aspects of the case, | including sufficiency of the evidence, the lack of objection to any of the testimony presented at trial, and the adequacy of the trial court’s compliance with Louisiana’s Sentencing Guidelines” is sufficient even if no errors are assigned. State v. Jyles, 704 So.2d at 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel initially moved to withdraw because she believed, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed available transcripts and found no trial court ruling, which arguably supports the appeal. A copy of the brief was forwarded to defendant, and this Court informed him that he had the right to file a brief in his own behalf, which he has done.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. Defendant was properly charged by bill of information with violations of La. R.S. 14:64 and La. R.S. 14:69, and the bill was signed by an assistant district attorney. Defendant was present and represented by counsel at arraignment, motion hearings, trial, and sentencing.

SUPPLEMENTAL ASSIGNMENT OF ERROR NUMBER 1

In this assignment, the defendant argues the trial court erred by joining for trial the armed robbery charges against him, La. R.S. 14:64, with the possession of stolen property charge, La. R.S. 14:69. He claims that trying the charges together denied him his due process rights under the correct “mode of trial”. He points out that the armed robbery charges against him subjected him to possible sentences of imprisonment “at hard labor for not less than ten years and for not more than ninety-nine years”, La. R.S. 14:64(B), while the possession of a stolen automobile exposed him to a possible sentence of imprisonment “with or without hard labor |afor not more than ten years”, La. R.S. 14:69(B)(1). Further, he shows that a trial for armed robbery requires a jury of twelve jurors, with ten concurring, but the trial for possession of a stolen automobile requires a six-member jury, with a unanimous verdict for conviction. La.C.Cr.P. art. 782(A).

At the outset it must be noted that under La.C.Cr.P. art. 495, an objection of misjoinder of offenses may only be urged by a motion to quash the indictment. The failure to urge a pretrial motion to quash waives the objection of misjoinder. See State v. Peters, 298 So.2d 276, 280 (La.1973) (on rehearing). There is no evidence in the record that the defendant in this case complied with La. C.Cr.P. art. 495. Absent a contemporaneous objection, the right to raise the issue was waived. La. C.Cr. P. art. 841. However, even if the issue were preserved for appellate review, there is no merit to the defendant’s argument.

La.C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan, provided that the offenses joined must be triable by the same mode of trial.

La.C.Cr.P. art. 493.2 provides:

Notwithstanding the provisions of Article 493, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.

The defendant maintains that the charges are not of the same or similar character, or a part of the same transaction or common scheme because Ms. Moffett’s ear was | üStolen the day before the armed robbery, and there were no intervening events to connect the two incidents.

In State v. Porche, 2001-2086 p. 7 (La.App. 4 Cir. 5/22/02), 819 So.2d 1122, 1127, this Court recently discussed the possibility of a defendant being prejudiced by the joinder of offenses:

Generally, “there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime.” State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 145, citing State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990). The defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice. Id. In determining whether joinder of two or more offenses would result in prejudice, a court should consider: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Coston, 2000-1132 p. 9 (La.App. 4 Cir.9/5/01), 800 So.2d 907, 914.

In the instant case there is nothing to indicate that the jury was confused by both of these charges being part of the same trial. The use of Ms. Moffett’s automobile as the “get away car” in the armed robbery of the jewelry store constitutes one transaction. The time at which Ms. Moffett’s vehicle was reported stolen is irrelevant because Grainer was only charged with possession of a stolen automobile. Grainer used the stolen automobile for the purpose of facilitating the armed robbery, and that makes it an integral part of the crime. The defendant has failed to meet his burden of proof and he has not shown that he was prejudiced by the joinder of the offenses. Thus, we find no error in the trial court’s failure to sever the trial of the offenses.

^SUPPLEMENTAL ASSIGNMENT OF ERROR NUMBER 2

By this assignment, Grainer argues his sixth amendment rights to confront and cross examine his accuser were violated when he was convicted on count three of robbing Fahim Akhtar at gunpoint when Akhtar did not appear and testify at trial.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This right provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. State v. Welch, 99-1283 (La.4/11/00), 760 So.2d 317. The State does not dispute that the only reason Fahim Akhtar did not testify at trial was because he had relocated to Canada.

Confrontation errors are subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. 1431. Factors to be Inconsidered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at 684, 106 S.Ct. 1431; State v. Wille, 559 So.2d 1321, 1332 (La.1990). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

In this case, in order to obtain a conviction, the State was required to prove the taking of anything of value belonging to another from the person or control of another, by use of force or intimidation while armed with a dangerous weapon. La. R.S. 14:64. Three eyewitnesses/victims testified that Grainer came into the premises armed with a gun which he pointed at them and Fa,him Akhtar, while pushing Akhtar and the others into a back room of the jewelry store, where Baham held them hostage at gunpoint. Ms. Lynette Williamson, Mohammed Mohidudin and Sadiq “Sam” Hirani testified that everyone, including Akhtar, was forced to turnover anything of value they had on their person while being held at gunpoint in the store’s bathroom. All of the witnesses/victims were certain of recognizing Grainer and Baham, and positively identified Grainer’s clothing, mask and gun, which he brought into the store. Further, they testified that they were certain Grainer and Baham were acting in concert.

Grainer was in the courtroom during the entire trial and defense counsel vigorously cross-examined all the prosecution witnesses. There was no denial of Grainer’s right to confront witnesses against him or be present when they testified. h?, The evidence against Grainer presented by the State was more than sufficient to prove beyond a reasonable doubt that he and Baham robbed Sol’s Jewelry Store at gunpoint, that Akhtar was present during the robbery and was forced into a back room where the three testifying witnesses saw that he was made to surrender his personal property while held at gunpoint. Considering the overwhelming evidence of Grainer’s guilt, and considering that any testimony which would have been offered by Akhtar would only be cumulative to that of the other witnesses, the guilty verdict was unattributable to Akhtar’s nonappearance at trial to testify. This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

By this assignment, the defendant claims the trial court erred in denying his motion to suppress his pre-trial statement. Grainer contends he steadfastly refused to make a statement and that he did so only after the police threatened him that he would not see his child again if he did not cooperate and confess.

Before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Thucos, 390 So.2d 1281 (La.1980). The Supreme Court in Miranda held that the person in custody-must be informed that he has a right to remain silent, that any statement he does make may be used against him as evidence, and that he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

| isThe trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. A trial judge’s decision to deny a motion to suppress will be afforded great weight and will not be set aside unless to do so is clearly mandated by a preponderance of the evidence. State v. Temple, 2001-1460 (La.App. 4 Cir. 6/19/02), 821 So.2d 738. In reviewing a denial of a motion to suppress, an appellate court is not limited to the evidence adduced at a suppression hearing, but may consider all pertinent evidence adduced at trial. Id. at 740.

At the motion to suppress and at trial, Detective Byron Adams testified that initially, when Grainer was arrested, he refused to make a statement. However, at some point in the evening, while Adams was completing his paperwork on the incident, he asked Grainer if he wished to make a statement, and Grainer said yes. Adams explained to Grainer the charges filed against him, advised him that he had the right to remain silent, the right to appointed or retained counsel during questioning and at trial, and that anything he said could be used against him at trial. Adams also advised Grainer that if he changed his mind at anytime about making a statement, Adams would stop the questioning. Grainer indicated to Adams that he understood his rights, and chose to waive them. The State introduced Grain-er’s written statement, which bore Grain-er’s initials on each page and signature at the end. After Adams transcribed Grain-er’s statement, he gave Grainer the opportunity to make corrections or deletions from the statement. Adams denied threatening, coercing or forcing Grainer to make the statement. Under cross-examination at trial, Grainer admitted that he made no complaint of threats during or after the statement. His first complaint of coercion was made at trial. The evidence supports a finding that Grainer’s statement was voluntarily made without 114eoercion or threats, and that the trial court ruled based on its impression from the testimony, which is within its sound discretion. For the reasons stated, this assignment of error is meritless.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

In his second and third pro se assignments, Grainer complains he received ineffective assistance of counsel.

To support a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 94-2438 (La.10/16/95), 661 So.2d 1333, 1337 (on rehearing). The defendant must prove both elements to establish that his attorney was so ineffective as to require reversal. State v. Hongo, 96-2060 (La.12/2/97), 706 So.2d 419, 422. Counsel’s performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland at 686, 104 S.Ct. at 2064.

To carry his burden of proof on this claim, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 693, 104 S.Ct. at 2068. However, if an alleged error results from a reasonable strategic decision, counsel’s performance will not be considered deficient on that basis. State v. Brooks, 505 So.2d 714, 724 (La.), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial 11Bcourt where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729, 737 (La.1984); State v. Hampton, 94-1943 (La.App. 4 Cir.12/27/96), 686 So.2d 1021, 1026. Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issue on appeal. State v. Seiss, 428 So.2d 444, 449 (La.1983).

Grainer’s first alleged instance of ineffective assistance of counsel relates to his counsel’s soliciting testimony from Detective Jason Gagliano concerning the confession given by Grainer’s non-testifying co-defendant. During cross-examination, defense counsel questioned Detective Gagli-ano:

Q. Did Mr. Baham make a statement to you, sir?
A. Yes, he did make a statement?
Q. After you read him his rights?
A. Yes, I did
Q. Did you know that he was acquitted on all charges but one? Are you aware of that?

Defense counsel’s questioning seems to have been a tactical ploy to make the jury aware that Grainer’s co-defendant received lenient treatment, hoping that the jury in Grainer’s case would afford him the same leniency.

A thorough review of the preliminary and trial transcripts reveals a zealous, relentless, and thorough defense presented by counsel on behalf of Grainer. In the face of a written confession and a positive identification of Grainer by the victims, it is worth noting that defense counsel was successful in preventing a verdict of guilty of four counts of armed robbery in this matter, and in convincing the jury that it should return a responsive verdict of four counts of attempted armed robbery instead. This part of the assignment is without merit.

lifiGrainer’s second complaint of ineffective assistance is counsel’s failure to object to the trial judge reading Grainer’s confession for the jury. Grainer maintains that the judge’s action constitutes impermissible “comment” on the evidence.

La.C.Cr.P. art. 772 provides:

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

The no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421 (La.1974). Thus, if the effect of a comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. State v. Green, 231 La. 1058, 93 So.2d 657 (1957). To constitute reversible error, however, the effect of the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091 (La.1983).

In this case, the trial judge did not comment on Grainer’s guilt or innocence. He merely read Grainer’s statement to the jury. As he did so, the jurors followed along on copies supplied to each. When the judge finished reading the statement, trial testimony resumed without comment from the bench. The judge’s reading of the statement played no part in the verdict rendered. The evidence against Grainer overwhelmingly • determined his guilt. This assignment of error is without merit.

|17PRO se assignment of error NUMBER 4

In a final assignment, Grainer argues that the trial court erred in permitting victim Sadiq “Sam” Hirani to testify concerning statements allegedly made by Grainer without the State having previously disclosed the statements in discovery or by way of pretrial notice pursuant to La. C.Cr.P. art. 768. Grainer refers to Hira-ni’s direct testimony at trial that Grainer threatened Hirani’s life if Hirani told the police Grainer was one of the armed robbers. Grainer claims that the statement was inculpatory in the manner used because it raised an inference of a “future crime”.

The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042, 1044 (La.1982). Discovery procedures enable a defendant to properly assess the strength of the State’s case against him in order to prepare his defense. State v. Roy, 496 So.2d 583, 590 (La.App. 1 Cir.1986). If a defendant is lulled into a misapprehension of the strength of the State’s case by the failure to fully disclose, such prejudice may constitute reversible error. State v. Ray, 423 So.2d 1116, 1118 (La.1982).

La.C.Cr.P. Art. 768 provides:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

By its own terms, article 768 does not apply when a defendant has been granted pretrial discovery. In this case, Grainer was granted such discovery. Grainer argues that because he could not have known of the oral statement, he was prejudiced in his ability to prepare his case. However, he does not explain how or 11Rwhy he was prejudiced by not knowing of the existence of the oral statement, especially since he was aware of the written inculpatory statement. Nor does he suggest how his defense would have been different had he been apprised of the State’s intention to use the statement, nor does he show any prejudice from the State’s failure to provide notice. The purported threat did not relate to the charge upon which Grainer was being tried, but rather, as Grainer notes, a future crime. Hence, even assuming there was a technical failure to comply with La.C.Cr.P. art. 768, and that Grainer was not provided notice of the oral statement in pretrial discovery, reversal of the conviction is not appropriate. Even if the prosecution fails to provide the proper notice, the error may be harmless if the other evidence against defendant is overwhelming. State v. Jackson, 450 So.2d 621, 631 (La.1984). As previously noted, three victims/eyewitnesses unequivocally identified Grainer as one of the armed robbers, the jewelry store’s video security system documented Grainer’s participation in the crime, and, just as importantly, Grainer confessed. If there was error, it was harmless in light of the overwhelming evidence of Grainer’s guilt.

CONCLUSION

For the foregoing reasons, we find that the trial court did not err in denying the defendant’s motion to suppress his pretrial statements. The defendant did not receive ineffective assistance of counsel.

Therefore, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Baham was convicted of one count of attempted robbery on June 16, 2001, and sentenced pursuant to La. R.S. 15:529.1 as a second offender to twenty-five years without benefit of parole, probation or suspension of sentence.

      . Akhtar was a visitor to the store the day of the robbery. Subsequent to the robbery, he left the United States and did not testify at trial.

      . Although a defendant's right to physical, face-to-face confrontation is guaranteed by the Sixth Amendment, the Supreme Court, in Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980)), held that "our precedents establish that 'the Confrontation Clause reflects a preference for face-to-face confrontation at trial.’ ” The Court further stated that:
      Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.

        Id. at 849-850, 110 S.Ct. at 3165-3166. This preference for physical, face-to-face confrontation "may be overcome in a particular case if close examination of 'competing interests' so warrants.” Coy v. Iowa, 487 U.S. 1012, 1024, 108 S.Ct. 2798, 2805, 101 L.Ed.2d 857 (1988). In White v. Illinois, 502 U.S. 346, 358, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992), the Court held that the confrontation clause is satisfied if hearsay "has sufficient guarantees of trustworthiness to come within a firmly rooted exception to the hearsay rule.” State v. Welch, 99-1283 (La.4/11/2000), 760 So.2d 317.


author: JjMIRIAM G. WALTZER, Judge.

text:
    STATE of Louisiana v. David HAMILTON.
    No. 2002-KA-1281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.

      Harry F. Connick, District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER and Judge MICHAEL E. KIRBY).
   JjMIRIAM G. WALTZER, Judge.

STATEMENT OF THE CASE

Defendant David Hamilton was charged by bill of information on 27 August 1999 with armed robbery, a violation of La. R.S. 14:64. Defendant pleaded not guilty at his 1 September 1999 arraignment, was tried by a twelve-person jury and found guilty as charged on 3 August 2000. On 20 September 2000, defendant was sentenced to fifty years at hard labor, without benefit of probation, parole or suspension of sentence. Defendant was granted an out-of-time appeal on 14 January 2002.

STATEMENT OF FACTS

Defendant was tried and convicted for the 3 June 1999 robbery of the Bank One branch located at 4401 South Claiborne Avenue.

Nancy Saltzman, a teller working at the bank on the day of the robbery, testified that at approximately 10:00 a.m., four males wearing bandannas, at least one them armed, entered the bank and told everyone to get down. She could not identify defendant as one of the perpetrators.

LAllie Timberlake, another teller, testified that in addition to bandannas, all four robbers were wearing sunglasses, and at least one was wearing a baseball cap. After one robber jumped over the counter next to her, she got down and duck-walked away. After the robbery, she returned to her teller window and saw that all the money was gone from her bottom cash drawer. She noticed a black garbage bag on the floor that she knew did not come from the bank, because they used white bags in their trash cans. A bag was introduced in evidence. She could not identify defendant as one of the robbers.

Christine Jones, a customer relations banker present at the time of the robbery, said she would not be able to identify any of the robbers if she were to see them again.

FBI Special Agent Daryl O’Donnell investigated the bank robbery, with approximately ten other agents. He mentioned the garbage bag the robbers apparently left behind. The getaway vehicle, a 1988 Jeep Cherokee, was located in the 2600 block of Valence Street. One individual, Joshua Cheney, was first developed as a suspect. Subsequently, three other individuals, including defendant, were developed as suspects. Defendant gave a statement, saying that it was impossible for him to account for his whereabouts on 3 June 1999. Defendant was fingerprinted. A telephone number found on another suspect’s beeper was that of defendant’s mother.

Glen Gegenheimer identified a photo of the getaway car as his 1988 Jeep Cherokee, which he said was stolen the night before the robbery. New Orleans Police Technical Specialist Dorothy Butler helped process the crime scene, taking photographs and dusting for fingerprints.

IsFBI Special Agent Wayne Robinson collected evidence and photographed the crime scene. He collected the plastic garbage bag identified by Ms. Timberlake. New Orleans Police Officer Melvin Williams testified that he was contacted by Agent O’Donnell and shown a bank surveillance photo of one of the gunmen. Officer Williams was able to identify that suspect as Joshua Cheney. New Orleans Police Detective Gerard Kuhn prepared arrest warrants for defendant and the three other suspects. FBI Special Agent Donaldo Rodriguez was called out to process the 1988 Jeep Cherokee identified as the getaway car. He identified a dollar bill and money wrapper found inside of the vehicle. He said a dark plastic bag was also recovered from the vehicle. He identified locations on the vehicle where latent fingerprints were lifted.

FBI fingerprint specialist Mark Stendts was qualified as an expert in fingerprints. He testified that he matched thirteen latent fingerprints to fingerprints taken from defendant. Five were lifted from the black garbage bag left behind at the bank. Seven others were lifted from the getaway car. The thirteenth was lifted from the black plastic garbage bag found in the getaway ear.

ERRORS PATENT AND THIRD ASSIGNMENT OF ERROR

A review of the record reveals one error patent. The bill of information is missing from the record. According to State v. Buttner, 411 So.2d 35 (La.1982), this constitutes an error patent. However, in State v. Mitchell, 553 So.2d 915 (La.App. 4 Cir.1989), this Court found that a record lacking a bill of information was harmless error, where, as in the instant case, the defendant made no complaint that he was unable to properly defend himself, and the docket master indicated that the bill of information had been filed.

1 ¿Furthermore, a minute entry reflects that defendant waived a reading of the bill of information. There is no indication that defendant was unaware that he was charged with robbing the Bank One branch located at 4401 S. Claiborne Avenue in New Orleans at or about 10:00 a.m. on 3 June 1999.

Accordingly, this error is harmless.

FIRST ASSIGNMENT OF ERROR: The trial court erred in denying defendant’s oral motion for a continuance.

A motion for continuance shall be in writing and shall be filed at least seven days prior to the commencement of trial. La.C.Cr.P. art. 707. However, where occurrences that allegedly make the continuance necessary arise unexpectedly, and defendant has no opportunity to prepare a written motion, an oral motion may be sufficient. State v. Sam, 99-0300, p. 16 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, 82, writ denied 2000-1890 (La.9/4/01), 796 So.2d 672. The trial court has great discretion in deciding whether to grant a motion for continuance, and this decision will not be disturbed on appeal in the absence of an abuse of that discretion. State v. Castleberry, 98-1388, p. 5 (La.4/13/99), 758 So.2d 749, 755. Even where an abuse of discretion is found, a defendant’s conviction will not be reversed in the absence of a showing of specific prejudice. Castleberry, 98-1388, p. 5, 758 So.2d at 756.

In the instant case, on the morning of trial, prior to selection of the jury, defense counsel requested a continuance, representing that she was assigned the case as a public defender from three weeks to three months ago, Counsel claimed that she did not have the results of the fingerprint analyses, and noted that at a prior motion hearing there had been some discussion with regard to a hearing to |fidetermine the qualifications of the fingerprint expert. Defense counsel also stated that there was a reference in prior counsel’s notes that one co-defendant had stated that defendant had not been involved in the “matter.” Counsel said she had been unable to contact that individual, who apparently was incarcerated, and that he had been on “lock-down” the last time she tried to see him. Counsel did not mention when she had attempted to see the individual. Defense counsel also noted that defendant had two alibi witnesses who “apparently” were interviewed by the public defender’s office. She represented that she had been unsuccessful in her attempt to contact them.

The State announced it was ready for trial and represented that it had filed discovery motions, and had never been provided notice of an alibi defense or any information regarding alibi witnesses. La. C.Cr.P. art. 727 requires a defendant, upon request, to give the State written notice of his intention to offer an alibi defense. The State further noted that its FBI fingerprint expert had come to New Orleans from Washington, D.C. to testify at defendant’s trial. Finally, the State represented that it had turned over all the fingerprint results to defense counsel’s predecessor.

The trial court denied the motion for continuance, and immediately thereafter held a hearing at which defense counsel contested the qualifications of the FBI fingerprint expert. Defendant makes no claim on appeal that the trial court erred in qualifying the FBI fingerprint expert.

La.C.Cr.P. art. 709 provides that a motion for continuance based upon the absence of a witness must state the facts to which the absent witness is expected to testify, facts and circumstances showing a probability that the witness will be available at the time to which the trial is continued, and facts showing due |fidiligence used in an effort to procure attendance of the witness. See, State v. Rose, 557 So.2d 409 (La.App. 4 Cir.1990).

In the instant case, defense counsel did not communicate personally with any of the three purported witnesses, the co-defendant and the two alleged alibi witnesses. Thus, counsel could not have known exactly what the substance of their testimony might have been, and thus whether she would have called them as witnesses. Defense counsel gave no indication that these witnesses would be available at the time to which the trial might have been continued. Finally, defense counsel failed to show due diligence used in attempting to secure the attendance of the witnesses:

Defendant frames the issue as the denial of a motion to continue based on inadequate time to prepare a defense. In State v. Simpson, 403 So.2d 1214 (La.1981), cited by defendant, the public defender moved for a continuance on the morning of trial, stating that he was unaware that his office had been appointed to represent the defendant, and representing that he was unprepared. The trial court denied the motion, and defendant was tried and convicted. On appeal, the court noted that the public defender’s office was unaware a trial date had been set, although defendant had been, and found that the trial court had abused its discretion in denying the motion for continuance.

Defendant also cites State v. Knight, 611 So.2d 1381 (La.1993), where the trial court denied a request for a continuance by a substitute public defender handling the regular public defender’s docket for the day the defendant’s trial happened to be scheduled. On appeal, the court held that the trial court’s discretion to grant or deny a motion for continuance did not extend to effectively denying the defendant his right to counsel.

[7Neither Simpson nor Knight is analogous to the instant case. Defendant’s trial counsel stated that she had the case “for the last, I guess, three months, three weeks, two months, I don’t know how long, however long” her predecessor had been gone.

In the instant case, defendant was convicted primarily on the expert testimony of the FBI fingerprint expert, who matched defendant’s fingerprints to five latent fingerprints found on a plastic garbage bag left in the bank by the robbers, seven latent fingerprints found on the getaway car, which had been stolen the night before the robbery, and one latent fingerprint found on a plastic garbage bag found in the getaway car. Independent testimony established the recovery of the two plastic garbage bags and the getaway car.

Defense counsel thoroughly cross-examined the FBI fingerprint expert. Defendant fails to show that his trial counsel did not have adequate time in which to prepare his defense. Considering all of the facts and circumstances, it cannot be said that the trial court abused its discretion in denying the motion for continuance.

There is no merit to this assignment of error.

SECOND ASSIGNMENT OF ERROR: The sentence is constitutionally excessive.

The record reflects that defendant failed to file a motion to reconsider sentence or orally object to the sentence. Accordingly, he is precluded from raising the claim of excessive sentence on appeal. La.C.Cr.P. art. 881.1; State v. Howard, 2000-2700, p. 19 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247, 1260.

Moreover, defendant was convicted for participating with three masked men in the 10:00 a.m. armed robbery of a bank located at a major intersection in New | ¡¡Orleans, putting numerous lives at risk. Defendant, who was thirty-four years old at the time of sentencing, had two prior convictions for burglary, one for which he served four years in prison. Defendant also had one conviction for possession of a firearm by a convicted felon, for which he served nine years in prison. Defendant offered no testimony as to any mitigating circumstances. Defendant was sentenced to fifty years at hard labor, approximately one-half of the ninety-nine year maximum sentence he could have received under La. R.S. 14:64. Defendant fails to show that the sentence imposed is constitutionally excessive. That is, he fails to show that the sentence makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. See, State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677.

There is no merit to this assignment of error.

CONCLUSION AND DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The bill of information is missing from the record and apparently cannot be located.