author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Bernard WILLIAMS, Jr.
    No. 03-KA-571.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Holli Herrie-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant-Appellant, Bernard Williams, Jr.
    Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys, Appellate Counsel, Kia Habisreitinger, David P. Wolff, Assistant District Attorneys, Trial Counsel, Gretna, LA, for Plaintiff-Appel-lee, The State of Louisiana.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

Bernard Williams, Jr. appeals his conviction of forcible rape and his life sentence entered pursuant to a three-felúny hábitual offender determination.- We affirm the conviction and the sentence, but remand for correction of a patent error.

On January 13, 2000 a Jefferson Parish grand jury indicted defendant, Bernard Williams Jr., for the November 5, 1999 forcible rape of C.K. La.R.S. 14:42.1. Defendant was arraigned on January 19, 2000 and pleaded not guilty.

On June 2, 2000, defendant filed omnibus pretrial motions, including discovery motions and motions to suppress evidence, confession and identification. The State satisfied discovery on August 31, 2000. On November 2, 2000, a hearing was held on defendant’s motions to suppress. The trial judge denied the motion to suppress evidence on the day of the hearing, but held open the hearing on the motion to suppress identification. The hearing on the motion to suppress identification resumed on January 11, 2001, after which the trial judge denied the motion.

On July 13, 2001 the State filed a Notice of Intent to Use Other Crimes Evidence. After a hearing on August 22, 2001, the matter was taken under advisement. On September 12, 2001, the other crimes evidence was found to be admissible at defendant’s trial. Defendant sought supervisory writs with this Court. We issued an order staying the trial pending our decision on defendant’s writ application. We subsequently granted the writ application and rendered reasons, finding the evidence to be inadmissible and reversing the ruling of the trial court. State v. Williams, 01-1124 (La.App. 5 Cir. 11/2/01) (unpublished writ disposition). The State sought supervisory writs, which the Louisiana Supreme Court denied with a five-judge majority. State v. Williams, 2002-KK-0023 (La.2/1/02), 807 So.2d 847.

The case was tried before a twelve-member jury on April 23-25, 2002. The jury found defendant guilty as charged of forcible rape. The jury was polled and the verdict declared legal.

On June 13, 2002, defendant filed a Motion for New Trial, which was denied that date. In addition, on that date, after waiving delays, the defendant was sentenced to serve 40 years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence, but with credit for time served. The defendant made an oral motion for appeal, which was supplemented with a written appeal motion. He also notified the court of his intent to file a motion to reconsider sentence. Thereafter, the State filed a habitual offender bill alleging the defendant was a third-felony offender. La.R.S. 15:529.1. The defendant denied the allegations of the multiple bill.

On August 6, 2002 the habitual offender hearing was held, after which the trial judge found defendant to be a third-felony offender. Following arguments regarding sentencing as a multiple offender, the trial judge ruled in favor of the State and applied the provisions of La.R.S.15:529.1, as that statute existed at the time of the current offense (i.e., prior to its amendment by Louisiana Acts No. 403 of 2001). The defendant objected to the ruling.

The trial judge vacated the prior sentence and re-sentenced defendant as a multiple offender to life imprisonment without benefit of parole, probation or suspension of sentence. The defendant notified the court of his intent to file a written motion. for reconsideration of sentence. Defendant also noted that he had previously filed an appeal motion, and expressed his intent the motion for appeal incorporate the issue concerning the multiple bill.

FACTS

At the time of this incident in November 1999, C.K. was living in an apartment in Metairie and she was working at the Rib Shack Restaurant in Kenner. She was the mother of a three and one-half-year-old son named Troy, who lived with his father, Parker, and grandmother, Ms. Carolina.

In 1999, while working at the Rib Shack Restaurant, C.K. met the defendant, Bernard Williams, who was a regular customer of the restaurant. Williams’ mother was a friend of the restaurant’s co-owner.

In order to get to work, C.K. traveled by cab, bus, or caught a ride with someone she knew. C.K. would often ride with her boyfriend, Will, or her boss, David Owens. However, around the time of this incident, Will was experiencing car trouble.

In October of 1999, C.K. was waiting at the bus stop and the defendant drove up and offered her a ride. She told him to call her at work in case she needed a ride that night. That night, the defendant, whom C.K. regarded as a friend, picked her up from work. C.K. had offered to babysit for the defendant because he had a syoung daughter, J.W., and a mentally-challenged sister. Defendant accepted the offer.

Defendant took C.K. to his house in the 2300 block of California Street in Kenner. Defendant was going out with friends and indicated he would not be late. He stayed out all night, however, and C.K. fell asleep on the couch. When she awoke, the defendant was asleep on a mattress on the floor. The defendant awoke, dressed and brought C.K. to work.

On November 5, 1999, C.K. waited for the bus in front of the LaQuinta Inn at the corner of Williams Avenue and Veterans Highway in order to go to work. Defendant drove up and asked C.K. if she needed a ride to work. According to C.K., she believed the defendant took her to work that day but she was not certain. The defendant called her later that day, as C.K. had requested, in order to ascertain if she needed a ride home from work. She accepted a ride from him that night when she left work at about 10:00 p.m.

When the defendant met C.K. that night, he asked her if she would babysit for him again and she refused. The defendant told C.K. to come with him back to his house so that he could try to find a babysitter. Once at his house, C.K. told defendant she could not wait any longer, so he called a cab for her. According to C.K., the' defendant’s sister was in the back room of the house and his daughter was in the kitchen, -but after the defendant called the cab-for her, he sent his daughter to her room.

After the defendant called the cab for C.K., he then twice attempted to touch her on the thigh and she told him to take his hands off of her. Defendant threw C.K. on the ground and pulled down one leg of her pants. C.K. was protesting and saying “No.” According to C.K., defendant responded, “I guess I consider this another rape charge.”

C.K. testified the defendant had her pinned down; she was crying and trying to fight the defendant off by pushing him away. Her efforts failed and the defendant was able to penetrate her vagina with his penis. According to C.K., the assault did not last long because the defendant stopped when the cab blew its horn. C.K. indicated that, following the rape; the defendant offered to bring her home, as if nothing had happened. C.K. was very upset but tried to stay composed for the cab ride to her apartment. According to C.K., the defendant laughed when he saw her crying.

Following the rape, C.K. said she felt compelled to see her son, Troy, because she was, contemplating suicide and seeing him would prevent her from doing it. C.K. called Troy’s father to tell, him she was coming to their house on Stroelitz. Street in New Orleans to see her son. She arrived, by cab, before midnight. C.K. confided in Ms. Carolina, Troy’s grandmother, that she had been raped. Troy’s father, Parker, called the New Orleans Police Department.

Officer Robert May of the New Orleans Police Department Special Operations Division responded to the call. According to Officer May, the victim was sobbing and trying to catch her breath during the interview. C.K. reported to Officer May that she needed a ride home from work and got a ride with a co-worker, who took her to his house and raped her. Officer May called Kenner Police, after learning the rape occurred in Kenner. The Kenner Police were asked to send someone to meet the victim at Charity Hospital in New Orleans. Officer May drove the victim and Ms. Carolina to Charity Hospital.

Detective Shane Tilford of the Kenner Police Department met the victim at Charity Hospital, to investigate the rape. According to Detective Tilford, he spoke to C.K. who was at a loss for words. The officer questioned C.K. concerning the location of the rape and established that it had occurred on California Street in Ken-ner and the assailant was a black male named Bernard.

Upon establishing the jurisdiction of his department, Detective Tilford contacted his headquarters to arrange, for a meeting with Detective Michael Cunningham. Detective Tilford took C.K. there for the interview.

Detective Cunningham took a statement from C.D. concerning the rape. In the statement C.K. gave a description of her assailant, provided a first name, and indicated that she could identify his house. Detective Tilford took her to California Street, where she pointed to the house at 3718 California Street in Kenner as the location of the rape. With this information and the description of her assailant, Detective Cunningham compiled a photographic lineup.

On November 6, 1999 at approximately 3:30 p.m., C.K. viewed the lineup photographs and identified defendant as the perpetrator. She indicated to the officer that she was positive that this was the rapist. She thereafter initialed and dated this photograph.

On November 8, 1999, Detective Cunningham secured an arrest warrant for defendant’s arrest. The officer went to the defendant’s house, but no one answered the door. Upon interviewing a next-door neighbor, Lori Elmer, the detective determined that the defendant was in fact at home and that Elmer was caring for the defendant’s daughter, J.W. At that time, Detective Cunningham questioned J.W.

Detective Cunningham then knocked again at defendant’s door and called for him. After receiving no response, the officer made a forced entry into the residence and arrested Bernard Williams.

Detective Cunningham interviewed the defendant’s daughter, J.W., in the presence of her aunt and also took a taped statement from her. According to the officer, the two statements given by the child were consistent. The child (who was ten years old at the time of the incident) stated her father told her to go into her room. While in her room with the door open, watching television, J.W. heard C.K. crying and screaming. J.W. went to the hallway to see what was happening. According to the child, she saw her father on his knees “hurting” C.K., while C.K. was fighting and saying, “No, Bernard, stop.” J.W. returned to her room with the door open and she reported hearing C.K. screaming, fighting, crying and saying, “No.” The child stated that C.K. had said that she (C.K.) was never coming back again. J.W. later testified to the same facts at trial.

On November 11, 1999, C.K. was examined by Dr. Stephen Cohen, an Ob/Gyn physician at Lakeside Hospital. The victim indicated an acquaintance rape had occurred during which her assailant penetrated her vagina with his penis. The physical exam revealed a redness behind the victim’s right ear which was compatible with a bite mark. Dr. Cohen also noted that C.K. was suffering emotional trauma. The genital exam was negative for trauma. However, Dr. Cohen explained this finding by stating that it was not unusual because he was dealing with an adult female victim who had previously experienced childbirth. He concluded that the findings in this case were consistent with the reported history.

At trial, the defendant testified as the only witness in his own behalf. He denied C.K’s account of the rape. Williams admitted he had vaginal sexual intercourse with C.K. on November 5, 1999, but according to defendant, C.K. was a willing participant in the sexual act. He also indicated that he and the victim had consensual sexual intercourse on the prior occasion when she came to his house to babysit.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant asserts the trial court erred in allowing testimony regarding the facts and circumstances of defendant’s prior conviction.

Defendant contends that where it had been previously established that the “other crimes” evidence was inadmissible, it was error for the trial court to allow the defendant to be cross-examined regarding his prior convictions. He further argues that the error was not harmless.

The State responds that the questions by the prosecutor were an attempt to impeach the defendant and were calculated to discover whether he was testifying truthfully. In addition, the State contends if there is any error, it is harmless.

In the 2001 regular legislative session, the Legislature enacted La.C.E. art. 412.2 for the purpose of allowing evidence of another offense(s) in' sexual assault cases or in cases involving sex offenses against minors regardless of whether the charged offense is a general intent or specific intent crime.

La.C.E. art. 412.2 provides in pertinent part:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to ■ the balancing test provided in Article 403.

If a defendant chooses to testify, as in the present case, La.C.E. art. 609.1 authorizes credibility testing with evidence of prior criminal convictions. La.C.E. art. 609.1 governs an attack on a witness’s credibility through evidence of a criminal conviction. In pertinent part, it provides as follows:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C.Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
(1) When the witness has denied the conviction or denied recollection thereof;
(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury....

In pretrial proceedings in this case, the trial court ruled evidence of other crimes was admissible at the defendant’s trial. That ruling was reversed by this Court. In our written reasons we found that La. C.E. art. 412.2 governs this case. In addition, the introduction of the other crimes evidence was controlled by the requirements of Prieur and the balancing test of La.C.E. art. 403.

In applying these principles to the current case, this Court found the other crimes evidence to be inadmissible for purposes of proving system or pattern because the other crimes evidence did not meet the relevancy requirements of La. C.E. art. 412.2, did not show system or pattern and was not probative of whether the current incident was consensual.

The Louisiana Supreme Court denied writs.

At trial, during the direct examination of the defendant, he was asked if he had any felony convictions and he replied that he did. He was asked to tell the jury what he had been convicted of. Defendant testified that he had been convicted of sexual battery and “at the same time” he had two felony thefts in 1990 to which he pleaded guilty. He was asked if he had another conviction in 1994 and he replied that he had another conviction for possession of cocaine. He was next asked if he pleaded guilty to that offense and he replied that he had.

During cross-examination, the prosecutor asked defendant if he was honest and truthful, and defendant said he was. The prosecutor next asked him whether he told his attorney he only had two prior felony convictions. Defense counsel objected and, at a bench conference; the prosecutor was admonished not to get into any area dealing with privileged communications.

In resuming cross-examination, the prosecutor asked defendant if he had four convictions and he said yes. The prosecutor then asked defendant if he did not have just two convictions and defendant stated, “They ran them together.” Defendant then explained that they “ran them- consecutive.” Defendant further explained that he pleaded guilty to the theft charges and the sexual battery and it was three charges.

The prosecutor then asked specifically about the theft charges to which he pleaded guilt on September 16, 1990, specifically, case number 90-2905 (two felony thefts from Macy’s in the amount of $360). The prosecutor also asked about a theft charge in case number 89-2801 for $360 from Canal Villere, on September 10, 1990. The defendant admitted he pleaded guilty to each of these offenses. The prosecutor then asked if he pleaded guilty to possession of cocaine in case number 94-1591 and he said he did. The prosecutor also asked defendant if he pleaded guilty to sexual battery on June 26, 1991 in case number 90-3534. The defendant stated that he did and added that he had paid his debt to society, too.

The prosecutor then asked if the defendant was a thief, at which point defense counsel lodged an objection. The trial judge told the prosecutor to move on, because that question had been asked and answered.

The prosecutor asked if the defendant had registered as a sex offender. Defense counsel lodged an objection. The court overruled the objection and the defense noted an objection to the ruling. The prosecutor continued with the line of questioning and asked if defendant registered as a sex offender; the defendant said no, he did not think that law applied to him.

The prosecutor asked if defendant, as an honest man, disclosed this fact or hid it. Defendant stated that he would answer the question if asked of him, but he would not volunteer the information. Defendant was asked if, in his dealings as a businessman, he disclosed to his customers his criminal record. Defendant responded that he would if he were asked but not otherwise.

He was next asked if he worked with children in a job or as a volunteer. He said he did volunteer work with children as an assistant coach of his daughter’s basketball team. He denied disclosure of his criminal background to those for whom he coached. He also denied telling the parents of the children he coached, because he said he never had unsupervised contact with the children. He added that those in the neighborhood knew about his “trouble in '90,” “understood the nature [of] the trouble I got in and it wasn’t for kids.” He also added, “When I was younger, I never did anything to a little kid.” The prosecutor then asked defendant who Gertrude Williams was; the defendant said she is said a friend. He was asked her age and defense counsel objected.

At a bench conference, defense counsel objected to the entire line of questioning. The court asked who was Gertrude Williams and the prosecutor explained that she was the 15-year-old victim defendant raped at the gym where he coached. The prosecutor added that defendant pleaded guilty to sexual battery in that case. The defense objected to the prosecution going into the background of the sexual battery charge.

The judge noted that defendant had denied improper contact with children, yet this victim (Gertrude Williams) was 15 years old. The judge thereafter ruled that the prosecutor could ask one or two questions “to establish that the victim in that case was, in fact, a fifteen year old.” The judge also explained, “What I’m allowing you to ask is impeaching his statement that that prior conviction didn’t involve children.” The judge added, “It’s also directly relevant to impeach his testimony because it contradicts directly what he said during his cross-examination.”

Defense counsel objected to the ruling and moved in advance of the additional questions for a mistrial, which was denied by the court only insofar as this ruling.

When questioning resumed, defendant again testified that Ms. Williams was a friend, a “close friend.” Over defense counsel’s objection, defendant responded affirmatively when asked if Gertrude Williams was the subject of that sexual battery. When asked this victim’s age, defendant said he didn’t know her age at the time and later found out she was 16 or 15. He then stated she was 15 and he was 21 years old.

Defendant was asked if he was being truthful with the jury about not having a sex offense with a child and he said he was truthful. He was asked to explain that and he replied that he knew the victim from school, but did not know her age, and said that when he found out they tried to incarcerate him. He said a proposal was made to give him credit for time served and he “pleaded guilty to get the whole thing over with.” Defendant thereafter admitted to the commission of this sexual battery and to pleading guilty because he was guilty.

Thereafter, the prosecutor asked the judge for a ruling on whether he could ask additional questions based upon the defendant’s testimony. Defense counsel objected to the question being asked in front of the jury and moved for a mistrial on the basis of the line of questioning. A bench conference ensued, during which the trial judge gave the following reasons:

The Court:
First, let me deal with the objection that’s been made. The defendant took the stand and has been answering questions on cross examination. I was very specific in what I was going to allow the ADA to do and that was only to rebut or impeach him with his statement about that offense. And the record will reflect what it reflects. But under 609.1, I find that he was attempting to testify to exculpatory facts or circumstances about that and minimize that.... [H]e went further and he went into facts about that prior conviction. And if those facts are in the opinion of the State untruthful, then they have a right to, again, only ask very specific, very targeted questions designed to impeach those facts that this defendant brought up. And that’s all you’re allowed to do. Do you understand that ... ?

Thereafter, the court inquired as to the State’s next question and was informed that the State intended to establish what the original charge was in the sexual battery case and that there was a plea. The court ruled that the prosecutor would not be allowed to ask those questions. The judge also denied defendant’s motion for mistrial.

On appeal, defendant contends that once he admitted to the prior convictions, it should have been the end of the inquiry by the State. He alleges that the State’s line of questioning was calculated to circumvent the prior ruling concerning the inadmissibility of the other crimes evidence, by hammering away with different types of questions concerning the prior conviction until he said something exculpatory. La. C.E. arts. 412.2(A) and 609.1(C)(2).

The first line of questions by the prosecutor regarding the number of convictions, the nature of the convictions and the dates thereof was clearly countenanced by La.C.E. art. 609.1(C), which allows evidence concerning the admissibility of “the fact of the conviction,, the name of the offense, and the date thereof.”

The prosecutor’s next line of questioning concerned whether the defendant had registered as a sex offender and his disclosure of this fact, as a man of truthfulness and honesty, which he had previously testified he was.

Registration as a sex offender is a sentencing requirement, which would be admissible under La.C.E. art. 609.1(C). See, La.R.S. 15:540, et seq. The inquiry regarding defendant’s disclosure of his sex offender status to others was permissible to impeach his prior testimony that he was a man of truthfulness and honesty. In responding to this inquiry, defendant explained that the reason he did not disclose his status as a sex offender to the parents of the children he coached was because he never had unsupervised contact with children and the nature of the trouble he had gotten into “wasn’t for kids.” He added that “I never did anything to a little kid.” Defense counsel objected to the State’s inquiry regarding the age of the victim in his sexual battery case on the basis that this amounted to the State being allowed to go into the details of the conviction.

Since defendant admitted the felony offenses on direct examination, the details of the offense were not generally admissible. However, defendant’s response on this subject offered exculpatory facts as his explanation as to why he did not disclose his prior sexual offense. ' The trial judge correctly found the evidence was admissible under La.C.E. art. 609.1(C)(2), an exception to the general rule.

In the final series of questions, defendant was asked if Gertrude Williams was the victim of his sexual battery and he confirmed she was. He was next asked her age and- he said 15 or. 16, but later admitted she was 15 and he was 21. Thereafter, he attempted to explain away his culpability and gave exculpatory information. Defendant also delved into the facts of that case as he perceived .them. This line of questioning was admissible under La.C.E. art. 609.1(C)(2) and the trial judge correctly so ruled.

Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court used the incorrect multiple bill sentencing law.

Defendant argues, as he did in the trial court, that since he was not sentenced as a multiple offender until after the effective date of the amendment of La.R.S. 15:529.1 by 2001 La. Acts No. 403, he should have received the benefit of that enactment. He relies on the rationale expressed by the First Circuit Court of Appeal in State v. Parker, 02-1477 (La.App. 1 Cir. 3/5/03), 845 So.2d 546.

The State replies that this Circuit has settled that the applicable version of the Habitual Offender Statute is the sentencing provision that exists on the date of the commission of the underlying offense. La. R.S. 15:529.1.

In State v. Parker, supra, a divided panel of the First Circuit found that a defendant who committed an offense prior to the enactment of 2001 La. Acts No. 403, but was adjudicated and sentenced as a multiple offender after the effective date of the enactment, was to receive the benefit of this enactment.

In reaching this decision, the First Circuit first differentiated their case from the Louisiana Supreme Court’s decision in State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, and analogized Parker’s situation to the one in State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526.

In Sugasti, which involved a conviction for possession in violation of La.R.S. 40:966(C)(1), the supreme court held that the time of the commission of the offense is determinative of the penalty provision applicable to the defendant. Although Su-gasti was sentenced after the effective date of 2001 La. Acts No. 403, § 4, the amendment was inapplicable to his sentence because the commission of his offense occurred prior to the effective date of the amendment.

In distinguishing Sugasti (which involved an original sentence) from Parker (which involves a multiple offender sentence), the First Circuit initially noted that the multiple offender statute does not impose a sentence for a particular offense and there is no one offense that is determinative of the penalty, but a combination of offenses must meet certain criteria. Additionally, the First Circuit recognized that a defendant may never have a sentence enhanced, although he commits a number of qualifying offenses.

Hence, the First Circuit reasoned that the adjudication date is determinative of the applicable penalty provision for multiple offenders. In this regard, the First Circuit analogized Parker to the Louisiana Supreme Court’s decision in State v. Mayeux, supra.

In Mayeux, which involved a fourth-offense DWI, the supreme court held that because of three specific provisions in 2001 La. Acts 1163, which amended La. R.S. 14:98, the amendment was effective upon conviction, and not upon the commission of the offense. The specific provisions of the amendment upon which the supreme court relied in Mayeux were that “upon conviction” the defendant shall be sentenced to a specific term — the language that indicated the legislature favored treatment over incarceration and that granted potential relief to those already convicted to be allowed to participate in home incarceration.

We find the reasoning in Parker misplaced. The amendment to the sentencing provision of the multiple offender statute (La.R.S. 15:529.1) was embodied in 2001 La. Acts 403, which was interpreted by the Louisiana Supreme Court in Sugasti, supra. The amendment to the sentencing provision of the Habitual Offender Statute did not arise under 2001 La. Acts 1163. It was 2001 La. Acts 1163 that amended La.R.S. 14:98 (which provides graduated sentencing penalties for initial and subsequent DWI offenses). 2001 La. Acts 1163 was interpreted by that court in Mayeux, supra. Moreover, the decision in Mayeux was driven by the specific language of 2001 La. Acts 1163. This language in the Act was determinative of the decision to apply that amendment from the date of conviction and not the date of the offense.

In contrast to Parker, supra, this Court has consistently held that the date of the commission of the offense controls the penalty to be applied in multiple offender sentencing. From our earliest decisions on the subject until our more recent pronouncement, we have been unwavering on this issue.

In additional, the Louisiana Supreme Court appears to agree with our approach. In a recent per curiam decision, the supreme court cited State v. Flagg, supra, and State v. Harris, 02-873, pp. 2-5 (La. App. 5 Cir. 1/28/03), 839 So.2d 291, granted the writ, and remanded the matter to the district court for “imposition of sentence in accord with the sentencing statutes in force at the time of the offense,” with the following reasons:

Under the rule set out in Louisiana jurisprudence, the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the act’s effective date.... Operation of this rule extends to habitual offender sentences imposed pursuant to R.S. 15:529.1.

State v. Barnes, 845 So.2d at 354 (citations omitted).

Therefore, we deem the issue settled. Where, as here, the amendment of the sentencing provision of the Habitual Offender Law (La.R.S. 15:529.1, as amended by 2001 La. Acts 403) became effective after the date of commission of the instant offense, the amendment to the habitual offender sentencing provisions does not apply to the habitual offender sentence imposed. Therefore, in this case the trial court correctly found the habitual offender sentence imposed under the pre-amendment version of La.R.S. 15:529.1 applicable.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent and the review reveals two patent errors in this case. First, defendant’s motion for appeal was premature when it was filed after his conviction and imposition of the original sentence, but before the multiple offender adjudication and sentence. However, this procedural defect was cured by the subsequent resentencing.

Second, the defendant was charged and convicted of a “sex offense” as defined by La.R.S. 15:542(E). La.R.S. 15:540, et seq. requires registration of sex offenders. However, the trial judge did not provide written notification of the registration requirement of La.R.S. 15:542, as required by La.R.S. 15:543(A).

DECREE

For the foregoing reasons, the conviction and sentence are affirmed. We remand the case and direct the trial court to send written notice to the defendant of the registration requirement and to file a copy of the notice in the record.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF PATENT ERROR.

      . In accordance with La.R.S. 46:1844, the victim will be referred to by the use of initials in order to protect her identity.

      . The issue of the appeal's prematurity will be discussed as an error patent.

      .No written motion to reconsider sentence appears in the record.

      . The restriction of parole for the full term of the sentence constitutes an error patent, which will be discussed infra.

      . No such motion appears in the record on appeal.

      . Although the defendant informed the court that he would amend the motion for appeal, there is no evidence of such an amendment in the record on appeal.

      . In his testimony the defendant stated his sister has cerebral palsy and is bedridden.

        . State v. Zornes, (on remand) 34,070, p. 4 (La.App. 2 Cir. 4/3/02), 814 So.2d 113, 115, writ denied, 02-1280 (La. 11/27/02), 831 So.2d 269. (The enactment was in direct response to the Louisiana Supreme Court's decision in State v. Kennedy, 00-1554 (La.04/03/01), 803 So.2d 916. State v. Zornes, 814 So.2d at 114, n. 1.)

      . State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 99; State v. Smothers, 02-277, p. 21 (La.App. 5 Cir. 12/30/02), 836 So.2d 559, 568.

      . State v. Williams, 01-1124 (La.App. 5 Cir. 11/2/01) (unpublished writ disposition).

      . State v. Cotton, 00-850 (La.1/29/01), 778 So.2d 569, 578 (citing State v. Prieur, 277 So.2d 126 (La.1973)).

      . State v. Williams, 02-23 (La.2/1/02), 807 So.2d 847.

      . Credibility was a pivotal issue in this case since the testimony of the defendant and victim was in conflict as to the nature of their sexual encounter. La.C.E. art. 607.

      . State v. Sugasti, 820 So.2d at 520-521.

      . Parker, 845 So.2d at 550.

      . 845 So.2d at 550-551.

      . Mayeux, 820 So.2d at 529-530.

      . Mayeux, 820 So.2d at 529-530.

      . State v. Flagg, 01-965 (La.App. 5 Cir. 03/26/02), 815 So.2d 208, 210-211, and State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 380-383.

      . State v. Bates, 03-352, p. 11 (La.App. 5 Cir. 7/29/03), 853 So.2d 71. A check of this Court's case management system reflects that a pro se writ application to the Louisiana Supreme Court was made in that case on September 2, 2003.

      . State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354.

      . La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354.

      . State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165.


source: Caselaw Access Project

author: b SULLIVAN, Judge.

license: Public Domain

text:
    Glenn SMITH, et al. v. Jimmie CUTTS, et al.
    No. 03-504.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 2003.
    A. Bruce Perkins, II, Attorney at Law, Alexandria, LA, for Plaintiffs/Appellees, Glenn Smith, Cynthia Smith.
    James E. Calhoun, Assistant Attorney General, Alexandria, LA, for Defendant/Appellant, State of Louisiana, Department of Health & Hospitals.

      Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   b SULLIVAN, Judge.

The State of Louisiana, through the Department of Health and Hospitals (the State), appeals a judgment declaring that it must pay 50% of the damages awarded to Glenn and Cynthia Smith (the Smiths) in Smith v. Cutts, 99-253 (La.App. 3 Cir. 3/15/00), 759 So.2d 851, writ denied, 00-1081 (La.6/2/00), 763 So.2d 598. For the following reasons, we reverse.

Procedural History

On October 13, 1995, the Smiths filed suit for a preliminary injunction and damages against (1) Jimmie and Brenda Cutts (the Cuttses), (2) the State, and (3) the Rapides Parish Police Jury (the Police Jury), contending that Defendants were at fault for the discharge of raw sewage from the Cuttses’ property onto theirs. The Smiths later added as Defendants Richard Young, the installer of the Cuttses’ sewer treatment system, and New Hampshire Insurance Company (New Hampshire), the Cuttses’ insurer. In addition to alleging the comparative fault of the Smiths, the State filed cross-claims against the Cuttses and the Police Jury. The Cuttses also filed a reconventional demand against the Smiths, as well as a cross-claim against the Police Jury. After a bench trial, the. trial court found the Cuttses to be 100% at fault and awarded the Smiths a total of $91,990.00 in damages. On September 1, 1998, the trial court signed a judgment in favor of the Smiths against the Cuttses and New Hampshire. The judgment also dismissed the State, the Police Jury, and Mr. Young from the lawsuit.

On September 16, 1998, the Cuttses and New Hampshire suspensively appealed from the trial court judgment. No other party appealed or answered the appeal. On March 15, 2000, this court rendered its decision in Smith, 759 So.2d 851, in which we reallocated fault equally among the Cuttses, the State, and Mr. Young. Because the Smiths’ cause of action arose in 1994, we also recognized that the Defendants were solidarily liable under the version of La.Civ.Code art. 2324 in effect at that time, which provided in part that “liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages.... ” The supreme court denied the State’s application for writs on June 2, 2000.

Subsequently, a dispute arose over payment of the judgment. The Cuttses and New Hampshire filed a motion for tender and a third-party demand, arguing that they were responsible for only one-third of the damages awarded or, alternatively, for one-half of the damages with the right of contribution from the State and Mr. Young. Upon the trial court’s agreement with the second argument, New Hampshire paid one-half of the judgment. Thereafter, the Smiths filed this suit seeking a declaratory judgment that they could collect the remaining one-half from the State, which had refused any payment on the grounds that the trial court judgment dismissing it had become final upon the Smiths’ failure to appeal or to answer the Cuttses’ appeal. The trial court agreed with the Smiths, declaring that the State was responsible for one-half of the judgment.

Opinion

The State contends that, between it and the Smiths, the trial court judgment is final because it was never a party before the appellate court. The Smiths contend that, as the prevailing parties at trial (albeit against a different Defendant), they did not have to answer the Cuttses’ appeal. They further assert that the only final and definitive judgment in this case is the opinion of this court, which acquired that status upon the supreme court’s denial of writs.

The State’s position is supported by the recent supreme court per curiam in Nunez v. Commercial Union Insurance Co., 00-3062 (La.2/16/01), 780 So.2d 348. Nunez, which arose from an automobile accident, reached the supreme court on a procedural path similar to that of the present case. In that case, the plaintiffs alleged the negligence of three defendants, but the trial court found only one, the Louisiana Department of Public Safety and Corrections (the DPSC), to be at fault. Upon the DPSC’s appeal, which the plaintiffs did not answer (nor did they file their own appeal), this court assigned some fault to the previously-dismissed defendants, the Calcasieu Parish Sheriffs Department (the CPSD) and another driver, Garret Hoffpauir, and to the plaintiffs. All defendants filed writs to the supreme court, with Hoffpauir and his insurer contending that “the judgment of the trial court dismissing plaintiffs’ action against them acquired the authority of the thing adjudged when plaintiffs failed to appeal from that judgment.” Id at 349. The supreme court agreed, explaining as follows:

When a judgment dismisses one of several cumulated claims by the plaintiff, the plaintiff must appeal that adverse judgment to obtain affirmative relief. St. Bernard Police Jury v. Murla, 00-0132 (La.6/30/00), 761 So.2d 532. When plaintiffs failed to appeal the dismissal of their action against the CPSD and Hoffpauir, that judgment of dismissal acquired the authority of the thing adjudged. The DPSC’s filing of an appeal from the judgment of the trial court only brought up on appeal the portions of the judgment that were adverse to the DPSC and in favor of the appellees. The DPSC’s appeal did not bring up on appeal the portions of the judgment that were adverse to plaintiffs, such as the dismissal of plaintiffs’ action against Hoffpauir and his insurer.
The judgment of the court of appeal allocating ten percent fault to Hoffpauir could only flow in favor of the party who appealed (the DPSC) the judgment dismissing Hoffpauir, and could create no benefit to plaintiffs, who did not appeal the judgment of the trial court dismissing plaintiffs’ action against Hoffpauir.
Accordingly, the application is granted, that portion of the judgment of the court of appeal in favor of plaintiffs and against Hoffpauir and his insurer is reversed, and plaintiffs’ action against Hoffpauir is dismissed.

Id.

The accident in Nunez occurred approximately one month after the effective date of the amendment to La.Civ.Code art. 2324 abolishing solidarity among joint tortfea-sors except in the case of intentional torts. The Smiths’ cause of action, however, arose when joint tortfeasors were solidarity bound, but only for 50% of the victim’s recoverable damages. In light of jurisprudence cited by the Smiths concerning the scope of an appeal by one solidary obligor, we must determine whether this distinction in the substantive law is material to the present case.

In Vidrine v. Simoneaux, 145 So.2d 400 (La.App. 3 Cir.), writ denied (La.1962), the trial court rendered judgment in favor of the plaintiffs against two defendants, but dismissed a third. Finding error in the dismissal of that defendant, this court had to determine how the plaintiffs’ failure to appeal that dismissal would affect the outcome of the case. After considering changes in the law concerning contribution among solidary obligors, we stated:

[W]e hold that where two persons are sued as solidary obligors, and the plaintiff takes no appeal from a judgment which dismisses the suit as to one defendant and condemns the other, an appeal by the latter brings the discharged defendant before the appellate court, and the litigation may be continued against him as though an appeal from the judgment of dismissal had been taken by plaintiff.

Id. at 406. Accordingly, we amended the judgment in favor of the plaintiffs to include the previously-dismissed defendant. In Lomenick v. Hartford Accident and Indemnity Co., 189 So.2d 731, 733 (La.App. 3 Cir.1966) (emphasis added), however, we appeared to limit Vidrine as follows:

Under the Emmons [v. Agricultural Insurance Co., 245 La. 411, 158 So.2d 594 (La.1963)] and Vidrine decisions cited above, the appeal of an appellant defendant brings up before the reviewing court the question of the solidary liability with it of any appellee defendants. Hoivever, in the absence of an appeal or perhaps (see below) of an answer to the appeal by him, the plaintiff himself has no right to urge that these codefendant-appellees be held liable additional to or instead of the appellant defendant. This is because the appeal of the defendant-appellant has brought up the question of the liability of the appellee defendants only insofar as the appellant is concerned, that is, only insofar as the appellees’ solidary liability might minimize the award against the appellant.

An example of this principle is found in Theriot v. Commercial Union Insurance Co., 478 So.2d 741 (La.App. 3 Cir.1985), in which the plaintiff sued his automobile insurer in contract and the seller of a defective engine in redhibition. The trial court found in favor of the plaintiff as to the insurer, but against him as to the seller, and only the insurer appealed. Finding that the trial court erred in rejecting the redhibition claim and that the insurer and the seller were solidary obligors, we recognized the insurer’s right of contribution against the seller, but we refused to amend the judgment in favor of the plaintiff to include the seller. Writing for the court, Judge Guidry explained:

When an unsuccessful co-defendant appeals from a judgment, his appeal can bring up for review his right to enforce contribution against other defendants. The unsuccessful co-defendant may demand the reversal of that part of the judgment which rejects plaintiffs demands against other defendants, so that the appellant may minimize his loss through the enforcement of contribution against the other defendants.

Id. at 745. However, he also recognized, “[W]e cannot render a judgment against [the seller] directly in favor of plaintiff since his failure to perfect a separate appeal against [the seller] has allowed the trial court judgment dismissing [the seller] to become final.” Id. at 746 (emphasis added). Thus, although the appellate court opinion recognized the solidarity between the insurer and the seller, this court was without authority to cast the seller in judgment to the plaintiff.

Based upon the above, we conclude that Nunez, 780 So.2d 348, is controlling, even though the defendants in that case were not solidary obligors. Accordingly, we find that the Smiths’ failure to appeal the dismissal of the State resulted in the finality of that judgment as to them. Once the judgment dismissing the Smiths’ claim against the State “acquired the authority of the thing adjudged,” Nunez, 780 So.2d at 349, we were without jurisdiction to modify, revise, or reverse it, except as was done in Theriot. See Tolis v. Bd. of Sup’rs of La. State Univ., 95-1529 (La.10/16/95), 660 So.2d 1206. Although our opinion in Smith, 759 So.2d 851, recognized the solidarity of the Defendants, that finding could benefit only the parties who appealed, the Cuttses and New Hampshire, in minimizing their liability through their right of contribution. Accordingly, we find that the trial court erred in holding that the State is liable to the Smiths for 50% of the judgment.

Decree

For the above reasons, the judgment of the trial court is reversed. Costs of this appeal are assessed to Glenn and Cynthia Smith.

REVERSED.

      . Louisiana- Code of Civil Procedure Article 2082 provides: "Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.”

      . Louisiana Code of Civil Procedure Article 2133(A) provides in part: "An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.”

      . Louisiana Code of Civil Procedure Article 2166(E) provides in part: "If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari.”

      . While the writs were pending, the plaintiffs settled with the DPSC and the CPSD, but the supreme court did not indicate that this fact affected its reasoning.


author: h JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Percy J. ANTHONY.
    No. 2003-KA-1031.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2003.

      Eddie J. Jordan, Jr., 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.
   h JOAN BERNARD ARMSTRONG, Chief Judge.

STATEMENT OF THE CASE

Defendant Percy J. Anthony was charged by bill of information on August 21, 2001 with possession with intent to distribute heroin, a violation of La. R.S. 40:966(A). Defendant pleaded not guilty at his September 5, 2001 arraignment, attended by counsel. Following trial on the merits, defendant was found guilty as charged on February 28, 2002 by a twelve-person jury. The trial court denied defendant’s motion for a new trial on July 1, 2002 and on August 14, 2002 denied defendant’s motion to quash multiple bill and motion for new trial. A lunacy hearing was conducted on December 10, 2002, with defendant represented by his pre-trial and trial counsel, Gary Wainwright. At the conclusion of the lunacy hearing, the trial court found defendant competent to proceed and set the multiple bill of information for hearing. On February 14, 2003, defendant appeared for sentencing and the State did not file a multiple bill. The trial court sentenced the defendant to five years at hard labor, without- benefit of parole, probation or suspension of sentence. The trial court granted defendant’s motion for appeal on March 26, 2003. On April 7, 2003, the Louisiana Appellate Project assigned attorney Laura Pavy to handle the appeal.

STATEMENT OF FACTS

It was stipulated that if New Orleans Police Officer Harry O’Neal were to be called as a witness, he would be qualified as an expert in the examination and analysis of controlled dangerous substances, and that the thirty-three foil packets of powder he tested were positive for heroin.

Officer Robert Ferrier, a seven-year veteran New Orleans police officer and four-year veteran on the Natcotics unit in the Sixth District, testified that on July 5, 2001, at approximately 12:30 p.m., he was conducting a narcotics surveillance of 2801 S. - Robertson St., in the rear driveway, near a walkway that led to Washington Avenue. The apartment was located in the Magnolia or C.J. Peete Housing Development. The officer observed defendant loitering in the area, and made an in-court identification of the. defendant as the man he observed. An unidentified male came to the 'walkway, and defendant walked over to meet him. The male handed defendant currency. Defendant walked to the rear entrance of 2801 S. Robertson St. He pulled what appeared to be a small magnetic key container from the side of a metal utility box, removed a small object, and reattached the container to the side of the utility box. Defendant then walked over to the unidentified male and handed a small object to him, after which the male walked southbound on Washington Avenue out of view. Approximately fifteen minutes later, a second unidentified male appeared and engaged defendant in a conversation. Defendant walked over to the utility box again, plucked the magnetic key container from the side, took out a small object, and reattached the container to the utility box. Meanwhile, the second unidentified male removed some currency from his pocket. When defendant returned, the male handed defendant currency, and defendant handed the male a small object. The male then walked away down Washington Avenue. Det. Ferrier determined that defendant was selling narcotics and called in other officers to arrest him. Subsequently, he heard a female yell a warning that the police were coming, and defendant disappeared into the hallway at 2801 S. Robertson St. Det. Ferrier testified on cross examination that he used binoculars when needed during his surveillance, and that he arrested the defendant after he saw him in possession of heroin.

Det. Jeffrey Giroir, a member of the Sixth District Narcotics Unit, assisted in the surveillance in the Magnolia Housing Development and the arrest of defendant on July 5, 2001. Upon receiving communication from Det. Ferrier, he pulled his vehicle to the intersection of Washington Avenue and South Robertson Street, whereupon he observed defendant run across a courtyard into a hallway in the 2800 block of South Robertson. Det. Gir-oir and Det. Raymond Veit chased defendant inside. Defendant entered Apartment F. Det. Giroir followed and arrested defendant inside the apartment. Det. Veit remained outside in the stairwell to detain another individual. The officer recovered $318, in mostly ten and twenty-dollar bills, from defendant’s person.

Det. Kyle Hinrichs, another officer assigned to the Sixth District, testified that he assisted in the investigation on July 5, 2001 in an unmarked police car. Det. Fer-rier directed him to the utility box attached to 2801 South Robertson Street, where he recovered a magnetic container with thirty-three foil packets containing a white substance consistent with heroin. The box remained in his possession until he released it at NOPD Central Evidence and Property. He sealed the package on that day, and the package was opened once for testing. He identified the foils as the same foils that were in the box when he recovered it from the utility box.

Det. Raymond Veit testified that he was with his partner, Det. Giroir, when he observed defendant run across the courtyard and enter a hallway in the 2800 block of S. Robertson in the company of another individual. Det. Veit detained that individual, Babom Horton, inside on the stairwell, while Det. Giroir followed defendant up the stairs. Mr. Horton was arrested and charged with interfering with a police investigation. Det. Veit made an in-court identification of the defendant.

Sheila Rodriguez, of 1210 South Roche-blave Street, testifying on behalf of the defendant, stated that she knew Babom Horton and claimed that Mr. Horton resided at 2800 S. Robertson St., and that she was sitting with him on his porch on the morning of July 5. Mr. Horton said he had to use the restroom,, so Ms. Rodriguez walked to a store across the street. When she returned, she called out to Mr. Horton through a second floor window. When he came downstairs he was wearing handcuffs and was in the company of a police officer. Ms. Rodriguez had not seen any police run into the stairwell. Ms. Rodriguez admitted that she had seen defendant in the neighborhood.

Babom Horton testified that he works as a banquet server at the Fairmont Hotel ane lives at 2800 South Robertson Street, Apartment F. He knew the defendant. He essentially related the same story as Ms. Rodriguez. He said that when he exited his apartment to go back downstairs to meet her, the stairwell was full of police. He said they asked him who was in his apartment. Mr. Horton said that defendant had asked to use his apartment to meet a female friend. However, he told the police no one was inside. After police asked him specifically if defendant was inside, he admitted it. He denied that the defendant had been chased by police into the apartment, or that he had been chased by police. Mr. Horton said defendant lived with a female in an apartment in the same housing development. Mr. Horton was positive that police detained him before noon, because the “Young and Restless” was on teleyision. .

Det. Robert Ferrier, recalled as a witness by the defendant, testified again that defendant was arrested at 1:35 p.m., as reflected by the police report. He said he did not come to work on July 5 until 11:25 a.m., and that he routinely worked from 11:25 a.m. until 8:00 p.m.

REVIEW FOR ERRORS PATENT; DEFENDANT’S SECOND ASSIGNMENT OF ERROR NO. 2

A review of the record reveals one error patent. The trial court sentenced the defendant to five years at hard labor without benefit of parole, probation or suspension of sentence. Defendant was sentenced pursuant to La. R.S. 40:966(B)(1), as amended by Acts 2001, No. 403, § 4, effective. June 15, 2001, which provides for denial of the benefits of probation and suspension of sentence only, not parole. Accordingly, we amend the defendant’s sentence to eliminate the denial of the benefit of parole.

DEFENDANT’S FIRST ASSIGNMENT OF ERROR: The trial court erred in denying defendant’s motion for mistrial, based on improper comments by the State during closing argument.

Defendant cites several instances when he objected to comments made by the prosecutor. However, in only one instance did defense counsel move for a mistrial. The prosecutor referred to defense counsel’s haying stated during voir dire that the police officers violated defendant’s rights. Defense counsel objected, whereupon. the trial court sustained the objection. The prosecutor told the jury that they were the “force” today, and that defendant was not the victim, but that “we’re the victims.” Defense counsel objected again, and the trial court sustained the objection. Defense counsel then moved for a mistrial, which was denied.

The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments that referred to “smoke screen” tactics and defense as “commie pinkos” inarticulate but not improper). Furthermore, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397. Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who heard the evidence. Williams, supra; Ricard; supra.

The only applicable mistrial provision is La.C.Cr.P. art. 775, which states, in pertinent part, that a mistrial shall be granted whenever prejudicial conduct in the courtroom makes it impossible for the defendant to obtain a fair trial. According credit to the good sense and fairmindedness of the jurors who heard the evidence, it cannot be said that the prosecutor’s comment that the defendant was not the victim, but that, in effect, society was, made it impossible for the defendant to obtain a fair trial. Accordingly, the trial court properly denied the motion for mistrial.

In one of the other instances objected to by defense counsel, the prosecutor stated, with reference to Det. Ferrier’s position during his surveillance, that there was no question in his mind about Det. Ferrier’s position, and that the reason it did not come out during trial was because it may be used later. Defense counsel objected on the ground of a comment on facts not in evidence, which objection was overruled. Defendant cites authority for the proposition that it is reversible error when a prosecutor prejudicially refers to matters allegedly within his personal knowledge, which are not in the evidence. However, it was apparent that the prosecutor was merely speculating. It is true that Det. Ferrier’s observations were crucial, in that he was the only person who observed defendant exercising dominion and control over the magnetic box containing the thirty-three foils of heroin. However, once again crediting the good sense and fair-mindedness of the jurors who heard the evidence, we are not thoroughly convinced that the prosecutor’s speculative comment influenced the jury and contributed to the verdict. Therefore, there is no reversible error as to this comment.

Defendant also objected to the prósecutor’a having referred to the officers being in the courtroom for one reason, because they started the investigation. The objection was overruled. Lastly, defendant complains of the prosecutor’s comment made in rebuttal to defense counsel’s argument that a conviction would impinge upon defendant’s freedom. The prosecutor asked rhetorically, “We’re trying to take away his freedom. What about my freedom?” Again, crediting the good sense and fairmindedness of the jurors who heard the evidence, we are not thoroughly convinced that these comments by the prosecutor influenced the jury and contributed to the verdict. ,

There is no merit to any part of this assignment of error.

CONCLUSION AND DECREE

For the foregoing reasons, we affirm defendant’s conviction and amend his sentence to delete the denial of the benefit of parole, and that the sentence be affirmed as amended.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Keith LeBLANC.
    No. 2003-KA-0276.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2003.
    Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

STATEMENT OF CASE

On April 11, 2002, the grand jury indicted the defendant, Keith LeBlanc, with the second-degree murder of Michael Thomas, a violation of La. R.S. 14:30.1, and possession of cocaine, a violation of La. R.S. 40:967. The trial court denied the defendant’s motion to suppress the cocaine evidence on May 3, 2002, and denied his motion to suppress the identification in the second-degree murder charge on May 31, 2002. A jury found the defendant guilty as charged as to second-degree murder on August 8, 2002. The court sentenced the defendant on August 23, 2002, to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. That same day, the defense filed a motion for appeal. On August 28, 2002, the State nolle prossed the cocaine charge.

STATEMENT OF FACTS

On February 12, 2002, EMS technicians William Niemack and Racquel Tillery were fueling their ambulance at approximately 3:00 p.m. at the city’s gas pumps on Lafitte Street. NOPD Sgt. William Matthews also was fueling his police vehicle at the same time and location. Ms. Tillery observed the defendant walking in the 2600 block of St. Louis Street. The defendant removed a gun from his | {.waistband, walked up to a silver-colored vehicle traveling on St. Louis Street, and fired several shots into the vehicle through the front seat passenger window. As Niemack and Ms. Tillery looked in the direction of the sound of the gunfire, they saw the silver vehicle accelerate, and then crash into a nearby garage. Niemack and Ms. Tillery watched as the defendant then walked to the driver’s side of the disabled vehicle and unsuccessfully attempted to pull the victim from the vehicle. The defendant shot the victim two more times. Sgt. Matthews reacted to the gunfire, asking Niemack and Ms. Tillex-y what happened. The pair related to Matthews what they witnessed, and identified the black-clothed defendant as the shooter. Ms. Tillery and Mr. Niem-ack tended to the victim until medical personnel transported him to the Medical Center of Louisiana where he later died.

Matthews radioed police dispatch for assistance in the wake of the shooting, and described the shooter as a black male wearing a black jacket and black pants. Matthews followed the defendant on foot; however, feedback from Matthews’ police radio alerted the defendant of Matthews’ presence, and the defendant ran. Matthews could see the defendant holding a gun in his right hand as he continued to chase the defendant into the parking lot of a Broad Street grocery store, where Matthews lost sight of him.

Officer Bruce Gentry heard Sgt. Matthews’ radio call for assistance. As Gentry proceeded to the location Matthews gave the police dispatcher, he heard several gunshots. When Gentry arrived at the scene, he noticed the defendant, clothed in black, standing beside the disabled car. Gentry heard two more gunshots, and then saw the defendant begin walking toward Claiborne Avenue. Immediately after-wards, Sgt. Matthews ran past Gentry in pursuit of the defendant. Gentry joined the chase, as the defendant ran into the parking lot of a grocery store on Bienville Avenue, where Gentry also lost sight of the defendant.

Officer Fred Connerly also responded to Sgt. Matthews’ call of a shooting in the 2600 block of St. Louis Street on February 12, 2002. Police dispatch directed him to the defendant’s flight route and advised Connerly that the defendant was a black male wearing a black jacket and black pants. Connerly pursued the defendant in his police vehicle until the defendant turned onto Conti Street, where Connerly lost sight of him.

Officer Tanya Watson, Lt. Rubin Stevens, Sgt. Virgil Duplessis and Officer Robert White joined the chase to capture the defendant. Watson and Stevens were a block away from the scene when they heard the report of the defendant’s escape. As they drove into the grocery store parking lot, Watson noticed Sgt. Matthews chasing a black male wearing a black jacket and black pants. Watson and Stevens drove along side of the defendant and then exited their vehicle, when the defendant entered the loading dock in the rear of the grocery store. The defendant slid under the dock and ran toward Bienville Avenue. Sgt. Virgil Duplessis and his partner, Officer Robert White, came upon the scene as Officer Watson chased the defendant on foot. Duplessis and White entered the foot chase and ultimately apprehended the defendant in the 2600 block of Bienville Street. Officer White searched the defendant and found a semiautomatic weapon and magazine in the defendant’s pants pocket.

NOPD officers transported the defendant back to the scene of the shooting, where Ms. Tillery and Mr. Niemack positively identified the defendant as the man they saw shoot the victim. Officers Gentry, Connerly, White and Watson and Sgts. Matthews and Duplessis, as well as Lt. Rubin, positively identified the defendant at the scene as the suspect they chased pursuant to the information received from Ms. Tillery, Mr. Niemack and the police dispatcher.

Ms. Robin Rucinski, an NOPD crime scene technician, testified that she recovered seven bullet casings from the street and photographed the victim’s vehicle, which had crashed into a garage about a half block away from where she recovered the bullet casings. The driver’s door of the vehicle was open, and the front passenger side window was shattered by gunfire. She recovered a spent bullet from the front passenger door and another from the driver’s door. As part of her investigation, Ms. Rucinski diagramed the crime scene, and photographed the defendant’s bloody hands.

Detective Frankie Watts assisted in the investigation of the shooting by retrieving the victim’s clothing and personal effects from the Medical Center of Louisiana. The hospital staff gave him the defendant’s black jacket, black pants, white T-shirt and tennis shoes. The staff also gave him a pellet recovered from the victim’s body. Watts logged the victim’s clothing and the pellet into evidence at headquarters. In securing the victim’s vehicle for transport to the “cage”, Watts discovered a cell phone in the driver’s seat of the vehicle; however, he was unable to retrieve any names or numbers from the phone.

Detective Eduardo Calmenaro testified that he and his partner were dispatched to the shooting scene; however, by the time they arrived, the defendant was in custody, and the crime scene technician was processing the area for evidence. Later, Detective Calmenaro collected the defendant’s clothing from central lockup and logged the items into Central Evidence and Property. Calmenaro identified the clothing as one white T-shirt, a black “Platinum FUBU” top, one pair of black “CMON” pants, one black nylon jacket with a “C” emblem, and one pair of silver Nike tennis shoes. Calmenaro further testified that his partner, Detective Pakaskin, found crack cocaine in the defendant’s clothing.

Dr. James Traylor, an expert in forensic pathology, performed the autopsy on the victim’s body. He testified that the victim suffered eight gunshot wounds to his arms, torso and legs. The “kill shot” entered the victim’s right shoulder, pierced the right lung, left ventricle of the heart, severed the thoracic aortic blood vessel, and exited the body under the left armpit. Dr. Tray-lor recovered one bullet from the victim’s body during the autopsy.

The State and defense stipulated that if Officer Ken Leary were called to testify, he would be qualified as an expert in ballistics and the testing of firearms, and that he would certify that the bullet casings retrieved from the scene and the bullet retrieved from the victim’s body during autopsy, as well as the bullet recovered by the hospital staff, were fired from the hand gun seized from the defendant at the time of his arrest.

ERRORS PATENT

A review of the record for errors patent reveals one. The record does not reflect that the defendant was arraigned. However, La. C.Cr.P. art. 555 provides that an error in failing to arraign a defendant is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty. Even though the defendant may not have been arraigned, the record reflects that he proceeded to trial without objecting thereto. Accordingly, the error is harmless.

COUNSEL ASSIGNMENT OF ERROR NUMBER 1 AND PRO SE ASSIGNMENT OF ERROR NUMBER 2

In his first assignment, the defendant argues the trial court erred by refusing to quash the indictment based upon the State’s failure to preserve evidence seized from the crime scene. Specifically, the defendant points out that although a cell phone appears in crime scene photographs, the phone was lost by the State, and thus unavailable to the defense for testing for fingerprints or other evidence.

A motion to quash is a mechanism by which a defendant raises pretrial pleas or defenses, which do not go to the merits of the criminal charge. State v. Rembert, 312 So.2d 282 (La.1975); State v. Marrero, 2001-1658 (La.App. 4 Cir. 3/27/02), 818 So.2d 211. The motion to quash concerns a defense, which if successful, requires dismissal of the indictment or information regardless of the issue of the defendant’s guilt or innocence. Marrero, 818 So.2d at 213 citing State v. Reaves, 376 So.2d 136 (La.1979).

The defendant in this ease did not file a motion to quash the indictment. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.C.Cr.P. art. 841. Accordingly, this alleged error was not preserved for review on appeal. However, even if the issue were preserved for appellate review, there is no merit to the defendant’s argument. The defendant offers no facts to prove he was prejudiced by the loss of the cell phone or that the police acted in bad faith thus denying him due process. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988) (Due Process Clause prohibits only the bad faith destruction of evidence). The defendant merely assumes that “it was likely [the cell phone] was handled by the perpetrator, because the item had been stolen from police custody.” There is no evidence in the record to support the defendant’s assumption. Even if the cell phone had been produced for testing and the defendant’s fingerprints were not found on the phone, this fact would not have exonerated the defendant. None of the witnesses to the shooting ever testified that he saw the defendant with a cell phone.

The defendant pro se further argues that the State failed to preserve other items of evidence. More particularly, he complains that the police mishandled the gun that was confiscated from him, thereby destroying fingerprint evidence, and failed to test his hands for gunpowder residue.

The State stipulated that its ballistics expert Officer Kenneth Leary would not be able to offer any scientific evidence linking the defendant to the confiscated gun. Nevertheless, the defendant’s assertions are groundless because the State and the defense also stipulated that Officer Leary would testify that ballistics testing on the casings recovered from the scene, and the bullets retrieved from the victim’s body during the autopsy were fired from the gun seized from the defendant at the time of his arrest.

The evidence of the defendant’s guilt is so overwhelming, that the defendant is unable to prove any bias attributable to the loss of the cell phone or the State’s handling of the murder weapon and/or failure to test his hands for gunpowder residue.

There is no merit in these assignments of error.

ASSIGNMENT OF ERROR NUMBER 2 AND PRO SE ASSIGNMENT OF ERROR NUMBER 1

By this assignment, the defendant argues the trial court erred by allowing Officer Bruce Gentry to identify the defendant at trial as the suspect he saw at the scene of the crime. The defendant complains that he was not allowed to test Officer Gentry with regard to possible misidentification at a motion to suppress the identification.

The record indicates that the trial court heard the defendant’s motion to suppress the identification on May 31, 2002. Ms. Tillery, Mr. Niemaek and NOPD officers Richard Chambers and Bill Matthews testified. Officer Gentry did not testify at the motion hearing. The record shows that Officer Gentry was added to the witness list on the day of trial. Following his trial testimony, Officer Gentry identified the defendant as the man he pursued after the shooting. Defense counsel moved for mistrial. As the jury deliberated, defense counsel explained to the Court that because Officer Gentry did not testify at the motion to suppress the identification, the defense had no opportunity to test his identification for constitutional muster. The trial court denied the defense motion for mistrial.

In State v. Thibodeaux, 98-1673 pp. 20-21 (La.9/8/99), 750 So.2d 916, 932, certiorari denied sub nom., Thibodeaux v. Louisiana, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000), the Louisiana Supreme Court discussed the test for determining the admissibility of an out-of-court identification:

As a general matter, the defendant has the burden of proof on a motion to suppress an out-of-court identification. La.Code Crim. Proc. art. 703(D). To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). However, even when suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d at 738.
The Supreme Court held in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.” Under Manson, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include: 1) the witness’ opportunity to. view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Id.

See also State v. Simmons, 99-1154, (La.App. 4 Cir.12/6/00), 779 So.2d 856, writ denied sub nom, State ex rel. Simmons v. State, 2001-0767 (La.11/9/01), 801 So.2d 364, where this court emphasized that a defendant must first establish that an identification procedure was suggestive before an identification can be suppressed.

In this case, Officer Gentry observed the defendant from the time he (the defendant) stood beside the disabled vehicle, began to walk away from the area, and joined Sgt. Matthews in pursuing the defendant on foot. Gentry accurately described the defendant, his clothing and escape route. Within minutes of the defendant’s apprehension, Gentry returned to the scene and identified the defendant as the suspect he and Sgt. Matthews pursued. Gentry’s identification of the defendant in conjunction with the identifications made by Ms. Tillery, Mr. Niemaek, Sgt. Matthews, Officers Watson, White, and Duplessis, proves there was no substantial likelihood of misidentification in this case. This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 3

In this assignment, the defendant argues that the evidence is insufficient to support his conviction.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, in viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/2896), 668 So.2d 1132. A reviewing court must consider the record as a whole, as would any rational trier of fact. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. State v. Mussall, 523 So.2d 1305 (La.1988). The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. 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 (La.1992).

The defendant in this case was charged with second-degree murder. In order to convict the defendant of second-degree murder, the State must prove (1) the killing and (2) specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1).

Specific criminal intent is “that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific criminal intent is a question of fact. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, 373, cert. denied, Seals v. Louisiana, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). Specific intent may be inferred from the circumstances and the actions of the defendant. Seals, 684 So.2d at 373.

In this case, two eyewitnesses to the crime identified the defendant as the shooter. EMS technicians William Niem-ack and Racquel Tillery both testified that they saw the defendant shoot the victim several times as the victim sat in his vehicle. Niemack and Ms. Tillery further testified that they watched as the defendant then walked to the driver’s side of the victim’s disabled vehicle, and attempted to pull the victim from the vehicle. Niemack and Ms. Tillery observed the defendant shoot the victim two more times. The State’s eyewitness evidence left no question as to the defendant’s specific intent to kill the victim. This assignment is without merit.

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

AFFIRMED.