text:
    STATE of Louisiana v. Clent SMITH.
    No. 03-KA-786.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, Bradley Burget, Assistant District Attorneys, Parish of Jefferson District Attorney’s Office, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Clent Smith, Winnfield, LA, Defendant/In Proper Person/Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   SOL GOTHARD, Judge.

Defendant, Clent Smith, was charged with one count of theft of U.S. currency valued at over $1,000.00 from Antoun Bou-Mikael in violation of LSA-R.S. 14:67, which allegedly occurred on or about August 4, 1999, and one count of theft of U.S. currency valued at over $1,000.00 from Felix Sapp in violation of LSA-R.S. 14:67, which allegedly occurred on or about August 25, 1999. The defendant filed various pretrial motions, including a motion to suppress identification, which were denied by the trial court. Thereafter, the case was tried before a six-person jury which found defendant guilty as charged. The trial court sentenced defendant on August 20, 2002 to imprisonment at hard labor for nine years on each count to run consecutively. Defendant filed a motion for appeal that was granted by the trial court. For the reasons that follow, we affirm the defendant’s convictions and sentences and we remand the matter for the trial court to notify defendant of the delays for filing for post-conviction relief pursuant to La. C.Cr.P. art. 930.8.

In August of 1999, in two separate incidents, Antoun Bou-Mikael and Felix Sapp were victims of a “pigeon drop.” Detective Sean Watson of the Kenner Police Department, explained that a “pigeon drop” was a crime where a suspect 13approaches an elderly victim and tells that victim that he either has an inheritance or has found money, and that he needs to get rid of the money. The suspect usually asks the victim for his trust and tries to get the victim to withdraw some money from his bank account to show good faith.

Antoun Bou-Mikael testified that he was originally from Lebanon, that he had been in the United States for more than 17 years, and that he was 65 years old at the time of trial. He testified that, on the afternoon of August 4, 1999, while in the Home Depot parking lot on Veterans Boulevard in Kenner, Louisiana, defendant approached him with a piece of cardboard with an address on it and asked for directions. Mr. Bou-Mikael offered defendant a ride. As they were driving, defendant told Mr. Bou-Mikael to stop and pick up another person at a Burger King. Before they left Burger King the second person said that he had $150,000.00 that he wanted to put in the bank, but that he could not do so because he was a black person. The second person explained that the bank did not like black people, and therefore it would not open an account for him with that much money. This person showed Mr. Bou-Mikael four packs or bundles, which he stated was the money. Mr. Bou-Mikael was shown one pack, which consisted of brand new 50 and 100 dollar bills.

Mr. Bou-Mikael drove to his bank with the defendant and the other man, after telling them that he had an account, that he usually withdrew and deposited money, and that he would show them how to do it. He entered his bank and withdrew $7,000.00 from his line of credit. Once he returned with the money he gave it to the defendant to hold. The defendant and the second person then left, and did not come back. Mr. Bou-Mikael then called the police from the bank.

Thereafter, Mr. Bou-Mikael identified defendant from a photographic line-up, as the person to which he gave the money. At trial, he testified that he did not give defendant permission to take his money. He explained that the $7,000.00 was |4a loan from his credit line, that he had to pay it back, and that it was a hardship because he could not work.

Officer Mark Russo, with the Kenner Police Department, testified that on August 4, 1999 at approximately 10:15 a.m., he was flagged down by a Home Depot worker and reported suspicious behavior on the part of defendant, who was in the Home Depot parking lot. Officer Russo approached defendant, who stated that he was getting ready to catch a flight to Texas. Defendant was very nervous and was acting suspicious. Officer Russo filled out a Field Interview Card, with the name, driver’s license and clothing description. Defendant identified himself as Clent Smith, and produced a Texas driver’s license. When Officer Russo learned of the scams, he turned over the Field Interview Card to the investigating officer.

On September 23, 1999, Mr. Bou-Mikael was shown a photographic line-up, and he positively identified the defendant.

Felix Sapp, who turned 78 the day after trial, testified that he worked in the real estate business and was semi-retired. On August 25, 1999, he was at a shopping center on Chateau Boulevard in Kenner when a man, later identified as defendant, stopped him. Defendant had a piece of paper with an address on it and said that he was looking for that address. Mr. Sapp offered to give defendant a ride to that address. While en route, defendant asked him to pull into the Holiday Inn, where they picked up a second man. The man had a roll of money with him, and defendant told Mr. Sapp they needed to go to a bank to deposit the money.

At the bank, defendant stayed in the car with Mr. Sapp, while the other man left for about ten minutes. When the man returned, defendant said that he was settling the estate for his deceased brother, and that he had some property out at the airport that he wanted to sell. Mr. Sapp told defendant that he was in the real estate business and interested in buying it. Defendant requested a cash down payment^ Mr. Sapp stopped at his bank and withdrew $20,000.00 to pay for the lot, which he then placed in the glove compartment of his car. Mr. Sapp testified that he intended to go to his attorney’s office, but that defendant suggested they stop for lunch. At the Taco Bell parking lot, the second man took Mr. Sapp’s money from the glove compartment, and also took a $2,000.00 diamond ring that Mr. Sapp was wearing. After the two men left, Mr. Sapp called the police. Mr. Sapp’s car was dusted for prints, but those prints were never identified.

During the course of the investigation, Mr. Sapp was shown two photographic line-ups. During the first lineup on August 27, 1999, Mr. Sapp tentatively identified Therron Victor as the second perpetrator. On August 29, 1999, Mr. Sapp positively identified defendant in the second photographic line-up.

In his first allegation of error, defendant argues that the trial court erred by not granting a continuance after new evidence was learned about the whereabouts of David Bond, the person who defendant alleges committed the crimes.

La.C.Cr.P. art. 709 provides:

A motion for a continuance based upon the absence of a witness must state:
1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
3) Facts showing due diligence used in an effort to procure attendance of the witness.

In State v. Stevenson, 02-79 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 345, this Court set forth the pertinent law regarding motions to continue trial that involve securing the presence of a witness:

The trial court has great discretion in granting a recess and the denial of a motion for a recess is not grounds for reversal absent an abuse of that discretion and the showing of specific prejudice. LSA-C.Cr.P. art. 712; State v. Luna, 00-858 (LaApp. 5 Cir. 11/2/00), 772 So.2d 249, 255, writ denied. State v. Kelly, 96-903 (La.App. 5 Cir. 11/12/97), 704 So.2d 800, 807-808, twit denied, 97-3104 (La.4/9/98), 717 So.2d 1142. In order to show prejudicial error sufficient to warrant reversal, the defendant must show that the testimony the witness would have given would have been favorable to the defense and would indicate the possibility of a different result. State v. Luna, supra at 256.
The requirements of LSA-C.Cr.P. art. 709 are strictly enforced. State v. Gibson, 572 So.2d 666, 669 (La.App. 5 Cir.1990). In State v. Meyers, 95-750 (La.App. 5 Cir. 11/26/96), 683 So.2d 1378, 1388-1389, writ denied, 97-0234 (La.6/20/97), 695 So.2d 1350, this Court found no abuse of the trial court’s discretion in denying defendant’s motion for a continuance on the basis of absent witnesses, whose testimony the defense claimed was exculpatory, where defendant failed to meet two of the three requirements of LSA-C.Cr.P. art. 709.

On appeal, defendant argues that the trial court erred by not granting his motion to continue trial. However, it appears that he is actually arguing that the trial court erred by not granting his motion for a recess on the day of trial, since he actually sought a recess until the following morning in order to secure the presence of a witness.

Our review of the record shows that defendant failed to comply with the requirements of LSA-C.Cr.P. art. 709. He failed to provide facts to which the absent witness was expected to testify. He failed to state facts and circumstances showing the probability that the witness would be available at the time to which the trial was deferred. In fact, defendant had not even located the witness to determine whether he was the correct Mr. Bond at the time the continuance was requested. Finally, defendant failed to use due diligence in an effort to procure the attendance of the witness. Defense counsel knew approximately seven months'prior to trial that defendant alleged that Mr. Bond committed the crime and that he was in the Bear County Jail in San Antonio, Texas. There was plenty of time for defendant and his counsel to investigate the matter, locate Mr. Bond, compare his fingerprints to those found in the victim’s car, and subpoena him for trial. Further, defendant failed to show that he was prejudiced by the failure of Mr. Bond to testify.

1 ^Additionally, the case was continued numerous times by defense counsel, the State, and the court. In fact, the case was continued eleven times at the request of defense counsel.

We find that the trial court did not abuse its discretion in denying defendant’s motion for a recess.

In his second allegation of error, and in his fourth pro se allegation, defendant argues that the trial court erred in denying the motion to suppress the identifications. He claims that the photographic lineups were suggestive and that the identifications were unreliable.

A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984); State v. Payne, 00-1171 (La.App. 5 Cir. 12/13/00), 777 So.2d 555, 558-559, writ denied, 01-118 (La.11/21/01), 802 So.2d 626.

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

Even if the identification could be considered suggestive, it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

A photographic lineup is considered suggestive if the photographs display the defendant in such a manner that the witness’ attention is unduly focused on the defendant. A lineup is also suggestive if there is not a sufficient resemblance of |scharacteristics and features of the persons in the lineup. State v. Biglane, 99-111 (La.App. 5 Cir. 5/19/99), 738 So.2d 630, 634.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the United States Supreme Court set forth five factors to consider in determining if an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and, 5) the time between the crime and the confrontation. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. Id.

In evaluating a challenge to an identification procedure, courts must consider the totality of the circumstances to determine whether an identification presents a substantial likelihood of misidentifi-cation. Manson v. Brathwaite, 432 U.S. at 113, 117, 97 S.Ct. at 2252, 2254; State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 69, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481. Finally, when determining whether the ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the hearing on the motion to suppress but may also consider pertinent evidence given at the trial. State v. Higgins, 01-368 (La.App. 5 Cir. 10/17/01), 800 So.2d 918, 921, writ denied, 01-3267 (La.11/1/01), 828 So.2d 565, cert. denied, — U.S. -, 123 S.Ct. 2082, 155 L.Ed.2d 1070 (2003), citing State v. Burkhalter, 428 So.2d 449, 455 (La.1983) and State v. Byes, 94-611 (La.App. 5 Cir. 12/28/94), 648 So.2d 1073, 1074.

At the motion to suppress, Felix Sapp testified that Detective Sean Watson showed him photographic lineups twice. He was unable to identify anyone in the first lineup; however, when he was shown the second lineup, approximately two | aweeks later, he identified defendant. Detective Watson did not force or threaten or coerce him into identifying anyone.

Detective Sean Watson testified that he developed a suspect in the case, Clent Smith. Detective Watson further testified that he met with Mr. Sapp twice to show him photographic lineups. In the first photographic lineup, Mr. Sapp identified Therron Victor and that Mr. Sapp was not positive in his identification. Defendant was identified in the second photographic lineup. Defendant’s photograph was not in the first lineup.

Detective Watson testified at trial that the photographic lineups each contained six photographs of individuals of the same approximate age, with the same hair style, and of the same race. A review of the photographic lineups shown to Mr. Sapp, indicate that all of the photographs in both lineups are of black men of approximately the same age, who have short haircuts and facial hair and similarly shaped noses and lips.

Additionally, Detective Watson testified that he did not tell Mr. Sapp who to pick out, nor did he force Mr. Sapp or promise Mr. Sapp anything to pick out defendant’s photograph. Mr. Sapp testified at the suppression hearing that Detective Watson did not force, threaten, or coerce him into identifying anyone.

With respect to the identification by Mr. Bou-Mikael, it is initially noted that Mr. Bou-Mikael had to testify through an interpreter at the suppression hearing and at the trial. At the suppression hearing, Mr. Bou-Mikael testified that he met with a police officer and that the officer showed him photographs of two or three people. Mr. Bou-Mikael explained that he was able to identify someone in those photographs, and that the police officer did not force him or threaten him to pick out someone. He testified that he was ninety percent sure the person he identified, the defendant, was one of the persons who stole money from him on that day. On | ^cross-examination, Mr. Bou-Mikael testified that he did not recall that the person who stole money from him had gold teeth.

At trial, the State showed Mr. Bou-Mikael a photographic lineup marked for identification as State’s Exhibit 1 and asked Mr. Bou-Mikael if he had ever seen those photographs before. Mr. Bou-Mika-el pointed to photograph number 4 of defendant and testified that he recognized that photograph. He subsequently turned the lineup over and identified his signature on the back of the photograph. A review of State’s Exhibit 1 shows six photographs of black men of approximately the same age, who have short haircuts and facial hair and similarly shaped noses and lips.

The defendant argues that Mr. Bou-Mikael testified that he identified the picture of the man wearing the hat. A review of Mr. Bou-Mikael’s testimony indicates that Mr. Bou-Mikael did not understand the questions clearly, but that he was attempting to convey to the court that he chose the photograph of the man who was wearing a hat at the time he committed the crime. Additionally, a review of the photographs contained in State’s Exhibit 1 show that none of the men are wearing hats.

We find that the identifications were not suggestive, that the identifications were reliable, and that the trial court did not err in denying the motion to suppress identifications.

In his third allegation of error, defendant argues that the trial court erred by including a jury instruction on flight because it was not relevant to the facts or supported by the evidence. Defendant argues alternatively, that if this Court finds sufficient evidence of flight in the record, then the trial court erred by telling the jury what they had to infer from the evidence regarding flight.

The State responds that the evidence indicated that defendant fled the jurisdiction after the crimes were committed and, therefore, that the trial judge didj^not err by including the instruction on flight. Alternatively, the State contends that even if the charge was erroneously given, the error was harmless.

The jury charge at issue is as follows:

If you find that the defendant fled immediately after a crime was committed, or after he was accused of a crime, the flight alone is not sufficient to prove that the defendant is guilty. However, flight may be considered along with all other evidence. You must decide whether such flight was due to consciousness of guilt or to other reasons unrelated to guilt.

In State v. Eskano, 00-101 (La.App. 5 Cir. 1/30/01), 779 So.2d 148, 155-156, this Court set forth the pertinent law regarding jury instructions on flight:

If there is testimony of flight after the crime was committed and the jury charge regarding flight is brief when considered in connection with the remainder of the charge, the instruction is neither erroneous nor prejudicial. State v. Bell, 97-896 (La.App. 5 Cir. 10/14/98), 721 So.2d 38, 41 (citing State v. Walker, 93-632 (La.App. 5 Cir. 1/31/95), 650 So.2d 363, writ denied, 95-0545 (La.6/23/95), 656 So.2d 1013).
An erroneous jury instruction is subject to harmless error review. State v. Jynes, 94-745 (La.App. 5 Cir. 3/1/95), 652 So.2d 91, 98. The appropriate standard for determining harmless error is “ ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the instant trial was surely unattributable to the error.’ ” State v. James, 95-566 (La.App. 5 Cir. 11/28/95), 665 So.2d 581, 584 (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

In the instant case, we find that there was sufficient testimony of defendant’s flight, after the crime was committed, to warrant an instruction on flight. The crimes in this case occurred on August 4 and 25, 1999. On August 4, 1999, Officer Mark Russo interviewed defendant and filled out a Field Interview Card on him in the parking lot of Home Depot because defendant was acting suspiciously. At that time, defendant said that he was getting ready to catch a flight and leave for Texas. Defendant gave Officer Russo his Texas driver’s license.

Detective Watson testified that, on October 21, 1999, he sought a search warrant for defendant’s arrest. He sent the arrest warrant to the screening division of the Jefferson Parish District Attorney’s Office, to be sent to the FBI for a' UFAP |ia(unlawful flight to avoid prosecution) warrant, because the officers believed that defendant was in San Antonio, Texas since that was the address he gave when Officer Russo interviewed him. Detective Watson testified that it was not uncommon for people who committed pigeon drop scams to flee back to their home jurisdiction following the commission of the crimes. Detective Watson also testified that defendant was released before they could bring him back to Louisiana, that defendant was re-arrested in San Antonio, Texas on April 29, 2001, and that defendant had to be extradited to Louisiana because he would not come back willingly.

Defendant further argues that, even if this court finds sufficient evidence of flight, the trial court’s instruction defining flight invaded the province of the jury in that, the court instructed the jury that they must make some inference from any evidence of flight that might be introduced. In State v. McIntyre, 381 So.2d 408, 411-412 (La.1980), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Edüd 90 (1980), the Louisiana Supreme Court rejected a similar claim where the defendant alleged that the trial court instructed the jury in reference to evidence of flight that: “You must decide whether such flight was due to consciousness of guilt or for other reasons unrelated to whether or not he was guilty.” The Supreme Court found nothing improper in the trial court’s remarks and stated in pertinent part:

We find nothing improper in the court’s purported remarks. The court was merely reminding the jurors of their duty to review all of the evidence presented and to draw therefrom whatever inference that they thought proper. The court did not force the jurors to choose between two inferences but merely stated that a jury must either consider that evidence introduced is probative of the defendant’s guilt or that.it is not.

We find that the trial court did not err by giving the instruction on flight.

In his fourth assignment of error, defendant argues that the trial court erred by not putting in the record reasons for its excessive sentence as mandated by LSA-C.Cr.P. art. 894.1. He contends that his behavior was not that egregious so as |13to justify near maximum sentences, and then to impose them consecutively. He also claims that the State did not offer proof of his previous convictions.

Defendant failed to file a timely motion to reconsider sentence under LSA-C.Cr.P. art. 881.1. Defendant also failed to make an oral objection at the time of sentencing. Such an omission by the defense precludes review of a sentence on appeal. See, State v. Ewens, 98-1096 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. Defendant is not now entitled to review of his claim of statutory excessiveness. State v. Egana, 01-100 (La.App. 5 Cir. 7/30/01), 792 So.2d 931, 937, writ denied, 01-2609 (La.6/21/02), 818 So.2d 793. Regarding the issue of consecutive sentences, this Court has recognized that in order to preserve the issue for appellate review defendant must assert the ground in the motion to reconsider sentence. State v. Calvin, 00-1505 (La.App. 5 Cir. 2/28/01), 781 So.2d 827, 833, writ denied, 01-1112 (La.1/4/02), 805 So.2d 1182. Accordingly, defendant’s failure to file a motion to reconsider sentence limits him to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). The trial judge has wide discretion in imposing sentences within the statutory limits, and sentences will not be set aside absent manifest abuse of that broad discretion. State v. Lanclos, 419 So.2d 475, 478 (La.1982); State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1106, writ denied, 98-3219 (La.5/17/99), 741 So.2d 28. Three factors 114shouId be considered in reviewing a judge’s sentencing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and, 3) the sentence imposed for similar crimes by the same court and other courts. State v. Le, 98-1274 (La.App. 5 Cir. 6/30/99), 738 So.2d 168, 171, writ denied, 00-2174 (La.4/12/01), 789 So.2d 587; State v. Medious, 98-419 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086, 1092, writ denied, 98-3201 (La.4/23/99), 742 So.2d 876.

Defendant was charged with and convicted of two counts of theft in violation of LSA-R.S. 14:67. Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. LSA-R.S. 14:67 B(l).

We find that the sentences were not constitutionally excessive. Defendant induced Mr. Sapp and Mr. Bou-Mikael, two elderly and vulnerable men, to withdraw a total of $27,000.00 from their banks and give it to him. He also stole Mr. Sapp’s diamond ring. Defendant fled the jurisdiction after committing the two crimes. The trial judge did not order restitution and, therefore, it appears that the victims will not be getting their money back. Additionally, defendant had a lengthy criminal history involving prior convictions for similar conduct.

Defendant also argues that the State did not offer proof of his prior convictions. In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2 Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Jones, 31,569 (La.App. 2 Cir.l2/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App. 2 Cir. 10/29/97), 702 So.2d 40, 42.

In the instant case, the record reflects that the prosecutor enumerated defendant’s prior convictions for the trial judge. He did not introduce into evidence any exhibits regarding those convictions. Therefore, the sources of information the prosecutor relied on are unknown. Defense counsel did not object after the prosecutor listed defendant’s prior convictions. In light of the above-cited jurisprudence, we find that the trial court did not err in considering those prior convictions even in the absence of proof that defendant committed those crimes.

In his first pro se assignment of error, defendant argues that the trial court erred by ignoring defendant’s motion for a speedy trial. Because defendant has already been tried and convicted, his allegation of the violation of the statutory right to a speedy trial raised after trial is moot, since the only remedy for violation of the statutory right to speedy trial is a release from the defendant’s bail obligation. See, State v. Price, 96-680 (La.App. 5 Cir. 2/25/97), 690 So.2d 191, 197.

In his second pro se assignment of error, defendant contends that the trial court erred because his trial was not held within two years after the bill of information was filed as mandated by La.C.Cr.P. art. 578.

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. LSA-C.Cr.P. art. 532(7); State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286. Defendant failed to file a motion to quash and, therefore, the issue is waived. Further, there is no ruling for this Court to review.

In his third pro se allegation of error, defendant argues that he was denied effective assistance of counsel. Defendant attached numerous documents to his pro se brief, these documents are not contained in the record. It is well-settled that |1fian appellate court is precluded from considering evidence which is not part of the record. State v. Pertuit, 95-935 (La.App. 5 Cir. 3/13/96), 673 So.2d 1055, 1057.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, 636 So.2d at 1075.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. Only when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, may it be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, 708 So.2d at 1075. In this case, the appellate record does not contain sufficient evidence for this Court to consider defendant’s claim of | -^ineffective assistance of counsel. Accordingly, we decline to address this allegation of error.

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find that the transcript does not reflect that the trial judge adequately advised defendant of the two-year prescriptive period for seeking post-conviction relief pursuant to La. C.Cr.P. art. 930.8. Accordingly, we remand this case and order the trial judge to send written notice to the defendant of the prescriptive period, along with a notice of when the period begins to run, within ten days of the rendering of this opinion, and then to file written proof in the record that the defendant received this notice. State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

For the above discussed reasons, the defendant’s convictions and sentences are affirmed, and the case is remanded for the trial court to notify the defendant of the two year prescriptive period for seeking post conviction relief as ordered above.

CONVICTIONS AND SENTENCES AFFIRMED; CASE REMANDED.


source: Caselaw Access Project

author: I JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jon QUINONES.
    No. 03-KA-907.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Hilary B. Taylor, Indigent Defender Board, Gretna, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Ralph C. Cox, III, Donald A. Rowan, Jr., Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   I JAMES L. CANNELLA, Judge.

The Defendant, Jon Quinones, appeals from his conviction of carnal knowledge of a juvenile. We affirm the conviction, vacate the sentence and remand.

The Defendant, Jon Quinones, was charged by bill of information on August 2, 2000 with the carnal knowledge of a juvenile, a violation of La.R.S. 14:80. He was arraigned on August 9, 2000 and entered a plea of not guilty. Subsequently, the Defendant filed pretrial motions. On September 15, 2000 and September 29, 2000, the Defendant received open file discovery from the State and his discovery was satisfied.

Trial was initially scheduled for October 16, 2000, but was continued to October 30, 2000, pursuant to the Defendant’s motion for continuance. When the Defendant did not appear for trial, the judge issued an attachment for his appearance and ordered the surety, Amwest Surety Insurance Company, to produce the Defendant in court on November 17, 2000. On November 17, 2000, the surety, the Defendant, and counsel failed to appear and the trial judge forfeited the Defendant’s bond.

j3On May 23, 2001, the surety filed a Motion to Set Aside the Judgment of Bond Forfeiture, contending that the reason the Defendant failed to appear at trial was that he had been arrested on October 18, 2000 and incarcerated in Orleans Parish Prison, where he was held in the custody of the U.S. Marshall. On June 29, 2001, the trial judge set aside the bond forfeiture and reset the trial for July 30, 2001. The minute entry for June 29, 2001 states that the Defendant is in “Facility unknown at this time.” On July 30, 2001, the rescheduled trial date, the Defendant’s counsel moved for a continuance, which was granted by the trial judge. Another new trial date was set for August 13, 2001. Again, neither the Defendant nor his counsel appeared in court on the day of trial, and the trial judge ordered the prior attachment to remain outstanding.

On December 4, 2002, the Defendant filed a pro se “Motion to Dismiss and/or Request for Fast and Speedy Trial.” In the motion, he alleged that a detainer letter had been forwarded to the Jefferson Parish Sheriffs Office advising of his whereabouts. He attached a copy of a Detainer Action Letter that had been issued by the Federal Bureau of Prisons on December 11, 2001, which indicated that the Defendant was being held in the Federal Correctional Complex in Beaumont, Texas. His expected date of release was in 2019.

In January of 2003, Defendant’s private counsel filed a motion to withdraw from the case. On that same date, the State filed a Petition and Order for Writ of Habeas Corpus Ad Prosequendam. The motion to withdraw was granted in February of 2003 and the State’s writ petition was granted in April of 2003. On June 24, 2003, the Defendant appeared in court and the trial judge recalled the outstanding attachment and appointed counsel to represent the Defendant.

On June 25, 2003, a hearing was held on the Defendant’s pro se motion to quash, which the trial judge denied without reasons. On the same day, the ^Defendant advised the trial judge that he wanted to enter a negotiated plea of guilty to the charge, reserving his rights under Crosby, to appeal the decision on the motion to quash. He was advised of his constitutional rights and executed a Waiver of Constitutional Rights form, which stipulated that he would receive a sentence of two years of imprisonment at hard labor, to be served concurrently and coterminously with the federal charges. The State agreed not to file a habitual offender bill of information and the trial judge agreed to waive the sex crime registration requirement. The trial judge accepted the plea and sentenced the Defendant as agreed upon in the plea agreement. A written motion for appeal under Crosby was subsequently filed and granted.

On appeal, the Defendant asserts that the trial judge erred in denying his motion to quash the bill of information for failure to timely proceed to trial. He also assigns patent errors.

The Defendant contends that the State failed to bring him to trial within two years, as required by La.C.Cr.P. art. 578, and thus, the bill of information should have been quashed. He alleges that he was unable to appear because he was incarcerated. The Defendant argues that the State should not be allowed to use his non-appearance as a basis for excusable delay of trial because it failed to show that it exercised due diligence in discovering his whereabouts, citing La.C.Cr.P. art. 579(A)(2), as interpreted by State v. Amarena, 426 So.2d 613 (La.1983).

The State responds that the Defendant’s trial was timely because there are statutorily excused periods of time contained in the time between the commencement of prosecution and the Defendant’s trial, citing La.C.Cr.P. arts. 580, 579(A)(3). The State argues that the time limitation was initially interrupted by the Defendant’s failure to appear for trial on October 30, 2000, after he had | Breceived actual notice of the trial date. It contends that all the information in the record prior to that time, including an attempt at service indicated that the Defendant’s whereabouts were unknown. Furthermore, the State further alleges that, although the Defendant was being incarcerated in Texas on federal charges, this fact was unknown to the State until May 23, 2001, when such information appeared in a pleading filed by the Defendant’s surety. The State notes that subsequently, when the Defendant filed his pro se motion to quash on December 4, 2002, the trial date was suspended until June 25, 2003 when the trial judge denied that motion.

In the case of a non-capital felony, the time limitation for commencement of trial is “two years from the date of institution of the prosecution.” La.C.Cr.P. art. 578(2). The date of institution of prosecution is the date when the indictment is returned or the bill of information is filed. State v. Gladden, 260 La. 735, 257 So.2d 388 (1972), cert. denied, 410 U.S. 920, 93 S.Ct. 1377, 35 L.Ed.2d 581 (1973); State v. Watts, 99-57, p. 3 (La.App. 5th Cir.1999), 738 So.2d 628, 629. If the time limitation for trial expires and the defendant files a motion to quash before trial, the trial court shall dismiss the indictment and there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts. La.C.Cr.P. 581. La.C.Cr.P. art. 579 provides for the interruption of the time limitation, as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3)The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
lfiB. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

La.C.Cr.P. art. 580 provides that the time limitation is suspended when a defendant files a motion to quash or other preliminary plea. A preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Brooks, 02-792, p. 2 (La.2/14/03), 838 So.2d 778, 782, reh’g denied, 02-792 (La.3/21/03). These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. Id.

In State v. Rome, 93-1221, p. 4 (La.1/4/94), 630 So.2d 1284, 1287, the Louisiana Supreme Court discussed the distinction between “interruption” and “suspension.” The Court stated:

An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, in this case two years.... Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim.Proc.Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that “in no case shall the state have less than one year after the ruling to commence the trial.” La.Code Crim. Proe.Ann. art. 580. (Footnote omitted)

When the defendant brings an apparently meritorious motion to quash the bill of information, the state bears a heavy burden to demonstrate that the time limit has not been interrupted (under La. C.Cr.P. art. 579) or suspended (under La. C.Cr.P. art. 580). State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205 (per curiam); State v. Rome, 93-1221 at 3, 630 So.2d at 1286. However, the trial judge’s denial of a motion to quash should not be reversed in the absence of a clear abuse of the trial court’s discretion. State v. Love, 00-3347, p. 6 (La.5/23/03), 847 So.2d 1198, 1208.

|7In this case, the State instituted prosecution on August 2, 2000 by the filing a bill of information. Under La.C.Cr.P. art. 578, trial should have begun on or before August 2, 2002. However, trial was not commenced at that time. The hearing on the motion to quash and the subsequent plea bargain occurred on June 25, 2003. The minutes in the record reflect the following chronology of events:

August 2, 2000 — The Bill of information was filed.
September 15, 2000 — The trial is set for October 16, 2000. The Defendant is present and has notice.
October 16, 2000 — The trial date. The Defendant moves for a continuance. Trial is reset for October 30, 2000. The Defendant signs an order/notice on October 16, 2002 evidencing his knowledge that he is to appear for trial on October 30, 2000. [Prescription is suspended.]
October 17, 2000 — A subpoena is issued to the Defendant for trial, although he had actual notice.
October 24, 2000 — The return on the subpoena states that he is no longer at the address and cannot be served. [Prescription is now interrupted.]
October 30, 2000 — The Defendant fails to appear for trial, although he had notice. An attachment issues. The trial is reset for November 17, 2000. [Prescription continues to be interrupted.]
November 17, 2000 — Defendant and his counsel fail to appear for trial. A judgment of Bond Forfeiture is rendered. [Prescription continues to be interrupted.]
May 23, 2001 — The surety moves to set aside the forfeiture asserting that the Defendant was in federal custody in Orleans Parish Prison at the time of his non-appearance. [The State is put on notice of the Defendant’s whereabouts. Interruption ends. The new prescriptive period begins and will end on May 23, 2003.]
July 30, 2001 — The hearing on the surety’s motion. It is continued pursuant to the Defendant’s request.
August 13, 2001 — The second date for the hearing on the surety’s motion. The Defendant fails to appear. The attachment is continued in effect.
| ^December 11, 2001 — A federal detainer letter is issued showing that the Defendant’s incarceration in Beaumont, Texas.
December 4, 2002 — The Defendant files the motion to quash, attaching a copy of the detainer letter issued on December 11, 2001. [Prescription is suspended until the motion is decided.]
January 23, 2003 — Defense counsel files a motion to withdraw.
February 3, 2003 — The motion to withdraw is granted. The State files a Petition for Writ of Habeas Corpus ad Pro-sequendam.
April 3, 2003 — The State’s writ is granted.
June 24, 2003 — The Defendant appears in court and counsel is appointed to represent him.
June 25, 2003 — A hearing is held on the Motion to Quash, which is denied. The Defendant enters into a Crosby Plea.

In support of his argument that the State failed to use due diligence in locating the Defendant, he cites State v. Chadbourne, 98-1998, p. 2 (La.1/8/99), 728 So.2d 832. There the Louisiana Supreme Court noted that the state’s burden of proof in establishing an interruption of the prescriptive period includes the duty to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence. In that case, the state knew less than two weeks after the state instituted prosecution in Jefferson Parish that the defendant had been arrested and incarcerated in Orleans Parish. The Court noted:

The state thereafter did not discharge its heavy burden of prosecuting the defendant within the applicable one-year time limit, La.C.Cr.P. art. 578(3), by assuming, without a single inquiry to the Department of Corrections, that the subsequent ex parte withdrawal of the detainer at defense counsel’s request in March of 1995 meant that relator had been released from custody and thereby interfered with its ability to secure his presence at trial. The withdrawal of the detainer therefore did not serve to interrupt the running of the prescriptive period by May 9,1998 ...

State v. Chadbourne, 98-1998, p. 1-2 (La.1/8/99), 728 So.2d 832, 832-833.

In this case, there is nothing in the record to support the Defendant’s argument that the State knew or should have known in October of 2000, or anytime prior to May of 2001, that on October 18, 2000 the Defendant had been arrested 19and was incarcerated in Orleans Parish in the custody of federal authorities. And, we do not find Amarena dispositive of this issue. In that ease, the state was well aware of the defendant’s location during the two year prescriptive period. In Amarena, the defendant robbed a jewelry store in Louisiana and fled to California in an attempt to sell the stolen jewelry. During the investigation in California, the Louisiana authorities were notified of defendant’s apprehension. He was arrested in California by federal authorities and imprisoned there. The authorities in Louisiana sought defendant’s extradition. There was correspondence and a couple of writs of habeas corpus filed to secure the defendant’s return. After a second writ of ha-beas corpus ad prosequendam was issued, the defendant was successfully returned to Louisiana for arraignment. The Louisiana arraignment occurred two years and nine months from the filing of the bill of information. Defendant moved to quash the bill of information under La.C.Cr.P. art. 579. The state argued that, under La. C.Cr.P. art. 579(2), the prescriptive period was interrupted because of the defendant’s incarceration in California and because attempts to secure the defendant’s presence had previously proved fruitless. The Louisiana Supreme Court rejected this argument because the whereabouts of the defendant were known to Jefferson Parish officials for more than two years and the defendant’s presence in Louisiana was easily obtainable. The Court noted that, when the prosecution finally took the appropriate steps to obtain Amarena’s presence in Jefferson Parish, he was promptly delivered. The Court also rejected the state’s argument that the time limitation on his trial was interrupted simply because he was in prison outside the state, and beyond the control of the state. “The mere physical detention of the defendant in a state or federal prison will not alone serve to interrupt prescription.” Amarena, 426 So.2d at 617. The present case is distinguishable from Amarena.

|10In addition, we note that the cases under La.C.Cr.P. art. 579(A)(2) involving out of state incarceration turn on the actions taken by the state after it had actual knowledge of the defendants’ locations. If the state makes some effort “during the two-year prescriptive period to bring a defendant back to Louisiana for trial when he is incarcerated in another state, (even if extradition is not allowed), that action would arguably constitute an interruption under La.C.Cr.P. art. 579(A)(2).” State v. Manuel, 98-2175, p. 5 (La.App. 4th Cir.10/17/98), 720 So.2d 395, 397; State v. Groth, 483 So.2d 596 (La.1986).

Based on the chronology of events in this case, the time limitation for the State to commence trial was interrupted in October of 2002. The State did not receive notice of the Defendant’s whereabouts until May of 2001. There is nothing in the record to indicate that the State knew or should have known that the Defendant was incarcerated elsewhere. When the State was informed that the Defendant was incarcerated in a federal prison in Texas, the interruption ended and a new two year period commenced, which was subsequently suspended in December of 2002, when the Defendant filed his motion to quash. With the knowledge of the Defendant’s whereabouts, the State then began the process to obtain the Defendant’s presence for trial and the case proceeded timely. Thus, we find that the trial judge did not eiT in denying the motion to quash the indictment.

PATENT ERROR

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

The Defendant was convicted of a sex offense as defined by La.R.S. Inl5:541(14.1). The registration procedures to be followed by sex offenders are set out in La.R.S. 15:542. La.R.S. 15:543(A) requires the trial judge to provide written notification to a sex offender defendant of the registration requirement of La.R.S. 15:542. In this case, the trial judge did not provide the required written notice to the Defendant, apparently because the plea agreement contained a provision to waive the requirement. The State raises this issue in brief.

The duty to register under La.R.S. 15:540 et seq. is mandatory. La. R.S. 15:544. Thus, the agreement to waive this requirement creates an illegally lenient sentence. Under La.C.Cr.P. art. 882(A), the trial court that imposed the sentence or the appellate court on review may correct an illegally lenient sentence at any time, but the correction is not mandatory. La.C.Cr.P. art. 882(A).

In State v. Massey, 02-872, p. 7 (La.App. 5th Cir.2/11/03), 841 So.2d 862, writ denied, 03-805 (La.10/17/03), 855 So.2d 758, this Court refrained from correcting an illegally lenient sentence. In that case, the state did not raise the issue. The defendant had been convicted of possession of cocaine and subsequently pled guilty to being a fourth felony offender, after negotiating a sentence of 15 years of imprisonment at hard labor. The mandatory sentence at the time was life imprisonment without benefit of parole, probation or suspension of sentence. The Court stated:

It is well established that the defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So.2d 790, 797. We note that the Louisiana Supreme Court stated the following in State v. Campbell, 01-0329 (La.11/2/01), 799 So.2d 1136:
The appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in disposition of the case favorable to the defendant.
Following that edict, we will not disturb defendant’s sentence.

Massey, 02-872, p. 7 (La.App. 5th Cir.2/11/03), 841 So.2d at 865.

In State v. Chisley, 03-426, p. 9-10 (La.App. 5th Cir.10/15/03), 860 So.2d 45, the defendant was found guilty of possession of cocaine and later pled guilty to being a second felony offender. This was not raised by the defendant or the state, but on appeal, this Court noticed in the error patent review that the sentence of 20 years was illegally lenient because the sentencing range at the time of the underlying offense as a second felony offender was 60-120 years. There, the Court acknowledged the illegal leniency of the sentence and remanded the case to the district court for re-sentencing, reserving the defendant’s right to withdraw his second offender guilty plea.

La.R.S. 15:540 A provides the public purpose for the sexual offender registration law. It states in part:

A. The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest. The legislature further finds that local law enforcement officers’ efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses and crimes against victims who are minors, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders, sexually violent predators, and child predators who live within the agency’s jurisdiction, and the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety....

Because of the strong public policy expressed by the Legislature for registering sexual offenders, we are compelled to vacate the illegally lenient sentence and remand the matter to the trial court for resentencing in accordance with the sexual offender law. However, we reserve the Defendant’s right to withdraw his guilty plea since it was predicated in part on the waiver.

| ^Accordingly, we hereby affirm the Defendant’s conviction. The sentence is vacated and the case remanded to the trial court for resentencing. The Defendant’s right to withdraw his plea of guilty to the crime of carnal knowledge of a juvenile is reserved.

CONVICTION AFFIRMED; SENTENCE VACATED, CASE REMANDED.

      . The motion was interpreted by all parties to be a Motion to Quash the Bill of Information for failure to timely proceed to trial.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The tentative federal release date is specified in the record as being October 23, 2019.

      . The record is devoid of any facts relating to the carnal knowledge of the juvenile.

      . Defendant was present for the next three hearing dates (i.e., arraignment and discovery) held on August 9, September 15 and September 29, 2000.

      . See, State v. Devito, 391 So.2d 813 (La.1980) (after notice of out-of-state incarceration, failure to extradite timely); State v. Kraft, 501 So.2d 313 (La.App. 5th Cir.1987), writ denied, 505 So.2d 1140 (La.1987) (after notice of out-of-state incarceration, nothing done to secure presence or show presence unattainable); State v. Amarena, supra (no action for period of two years after defendant's presence known).

      . The definitions of sex offenders previously contained in La.R.S. 15:542(E) were moved to La.R.S. 14:541(14.1) in Acts 2001, No. 1206.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Eric H. TRICHE.
    No. 03-KA-910.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Eric H. Triche.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Andrea Long, Appellate Counsel, Donald A. Rowan, Jr., Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

Defendant is before us on second appeal. On May 4, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Triche, with possession with intent to distribute marijuana. La. R.S. 40:966 A. After trial, the twelve-person jury returned a verdict of guilty as charged. On November 9, 2001, the trial court sentenced defendant to 15 years at hard labor.

On November 9, 2001, the State also filed a habitual offender bill of information, alleging that defendant was a second felony offender. After a hearing on February 1, 2002, the trial judge found defendant to be a second felony offender. On March 1, 2002, the trial court imposed an enhanced sentence of 20 years at hard labor, without benefit of parole, probation, or suspension of sentence. On November 22, 2002, the trial court granted defendant an out-of-time appeal.

In his first appeal, defendant assigned only one error: the trial court erred in denying his motion to suppress the evidence. This Court found no merit to defendant’s assignment and affirmed his conviction. State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80. Upon reviewing the record for errors patent, |3this Court recognized that the trial court had imposed an illegal sentence. Accordingly, we vacated the defendant’s sentence and remanded the matter for re-sentencing.

On July 11, 2003, the trial court imposed a new habitual offender sentence of fifteen years at hard labor, without benefit of probation or suspension of sentence. Defendant filed a motion for appeal on July 14, 2003, which the trial court subsequently granted.

On second appeal, defendant assigns two errors: the district court erred in finding the appellant to be a second-felony offender and the appellant’s fifteen[-]year sentence was “indeed excessive.”

In his fust assignment of error, defendant complains that the trial court’s February 1, 2002 finding that he was a second felony offender was erroneous. Defendant does not, however, give reasons to support his argument. Instead, he asks this Court to conduct an “errors patent review of the multiple bill hearing.”

Defendant is not entitled to review of the habitual offender proceeding. In our previous opinion, this Court affirmed the trial court’s habitual offender finding, vacated the original sentence, and remanded solely for re-sentencing. Defendant is, therefore, only entitled to raise issues pertaining to that re-sentencing. Accordingly, we will not consider defendant’s first assignment of error.

In his second assignment of error, defendant complains that the trial court’s revised habitual offender sentence of fifteen years is excessive. We note that defendant did not make an oral or written motion to reconsider sentence in the I ¿district court. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Dillon, 01-906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, 773, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is constitutionally excessive, even if it is within statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Zaldivas, 02-0690, p. 9 (La.App. 5 Cir. 12/30/02), 836 So.2d 577, 583, writ denied, 03-0705 (La.10/17/03), 855 So.2d 757. Trial judges are granted great discretion in imposing sentence, and if the record supports the sentence imposed, the court of appeal will not set it aside on grounds of excessiveness. La. C.Cr.P. art. 881.4(D); State v. Richmond, 98-1015, p. 8 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

As noted by the State in its appellee brief, when the trial judge re-senteneed defendant, he reduced defendant’s term of imprisonment from twenty to fifteen years. Defendant’s current sentence is the mandatory minimum sentence set forth in the statute that was in effect at the time defendant committed the underlying offense. La. R.S. 40:966(B)(2); La. R.S. 15:529.1(A)(l)(a). The mandatory 1 ^minimum sentence under the Habitual Offender Law is presumed constitutional. State v. Williams, 01-1007 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1032.

If, however, a trial court finds that an enhanced punishment mandated by La. R.S. 15:529.1 makes “no measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial court has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). In this case, defendant failed to argue at either his original habitual offender sentencing or his re-sentencing that his sentence made “no measurable contribution to acceptable goals of punishment” or that his sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and was “grossly out of proportion to the severity of the crime.” Moreover, on appeal, defendant fails to provide a viable argument as to why the trial court should have deviated below the statutory minimum in his ease. We find that defendant did not present any evidence, much less clear and convincing evidence, sufficient to rebut the presumption that the mandatory minimum sentence mandated by the legislature is constitutional.

In this case, although the trial judge did not articulate reasons for this sentence, it was unnecessary for the trial judge to do so because this sentence was mandatory. State v. Windham, 99-637 (La.App. 5 Cir. 11/30/99), 748 So.2d 1220, 1224 (citing State v. Haynes, 98-588 (La.App. 5 Cir. 2/23/99), 729 So.2d 104, 109). Furthermore, there is nothing in the record to show that defendant’s sentence is grossly out of proportion to the severity of his crime. Defendant’s predicate conviction alleged in the habitual offender bill of information was for possession of cocaine. In the instant case, defendant was arrested after police observed him distributing cocaine from the trunk of his car behind the restaurant where he was |fiemployed. The record reflects that defendant demonstrated a pattern of drug activity.

In sum, we find that the trial court did not abuse its wide discretion in imposing the mandatory minimum habitual offender sentence of fifteen years. We conclude that defendant’s second assignment of error lacks merit.

Finally, we have reviewed the instant record and found no errors requiring remand. State v. Gassenberger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 274. Based on the foregoing, we affirm defendant’s habitual offender sentence.

AFFIRMED.

      . The trial court, in imposing the habitual offender sentence, improperly denied defendant parole eligibility. See La. R.S. 15:529.1(G).

      . We note that, in his first appeal, defendant did not challenge the trial court's finding that he was a habitual felony offender. See State v. Triche, supra.

      . In fact, after defendant was re-sentenced as a second felony offender on July 11, 2003, defense counsel stated:
      Mr. Triche had indicated to me that, that he wanted to appeal the issue, not of the sentencing that was just done, but of the multi bill hearing itself, and that he indicated to me that that was not made an issue on the original appeal, and that he wanted to bring it up, and so I told him, I think the best thing to do, is — because this is sentencing, to treat it as though you’re starting all over, and to appeal that particular issue.

      . When a defendant is sentenced as a habitual offender, ”[t]he penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.” State v. Fletcher, 03-60, p. 13 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222, quoting State v. Bruins, 407 So.2d 685, 687 (La.1981).


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. William BLACK.
    No. 03-KA-911.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant-Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, William Black, with distribution of oxycodone, in violation of LSA-R.S. 40:967(A). The matter proceeded to trial before a twelve person jury, which found defendant guilty as charged. Defendant thereafter filed a motion for new trial, which the trial judge denied. After defendant waived delays, the trial judge sentenced him to imprisonment at hard labor for twenty years.

The state filed a multiple offender bill of information alleging that defendant was a fourth felony offender pursuant to LSA-R.S. 15:529.1. After being advised of his rights, defendant admitted to the allegations contained in the multiple bill. The trial judge vacated the original sentence and imposed an enhanced sentence of twenty years at hard labor without benefit of probation or suspension. Defendant now appeals.

FACTS

On May 16, 2001, the Jefferson Parish Sheriffs Office received information from a confidential informant regarding defendant’s residence on 5th Street in Gretna. Based on that information, Sergeant Ren-ton arranged for undercover Agent Casey Moore to purchase ten or more oxycodone pills the next day from defendant, a white male, who lived at the residence.

hOn May 17, 2001, Sergeant Renton called the confidential informant to make sure that the pills were still at the residence. Sergeant Renton also provided Agent Moore with eight $20 bills in case she was able to purchase more than twenty pills. At approximately 2:00 p.m., Agent Moore, accompanied by the confidential informant, went to defendant’s residence. When Agent Moore knocked on the door, defendant opened the door and invited her into the house. Agent Moore separated from the confidential informant after entering the house. Defendant asked Agent Moore “how many [she] wanted.” When Agent Moore responded, “20 pills,” defendant replied that “all he had was ten left, that he had just gotten rid of ten.” Defendant then asked how “did [she] use them,” and Agent Moore replied that she “shot them up,” meaning that she injected the pills with a syringe after melting them. After this exchange, Agent Moore felt that she had gained defendant’s confidence.

Agent Moore heard someone call out to defendant, which surprised her because she had expected defendant to be alone in the house. She looked toward the direction of the voice and saw a black male, later identified as Calvin Ward, sitting on a bed in the next room smoking crack cocaine in a glass pipe. Defendant asked Agent Moore if she knew where the nearest drug store was located. Agent Moore believed defendant wanted her to obtain some syringes at the drug store and “just stay there.” However, Agent Moore told defendant that she had to leave because her boyfriend was waiting on her. Thereafter, defendant pointed to Calvin Ward and said, “He’ll deal with you. I’m going to take a hit off that crack pipe.”

When defendant entered the bedroom, Ward handed the glass pipe to him. Ward exited the bedroom and defendant shut the door. Ward introduced himself to Agent Moore, asked how many she wanted, and Agent Moore told him that she wanted twenty pills. Ward explained that he only had ten because “they had just got rid of ten for the crack cocaine they were smoking.” Agent Moore told him |4that she could easily access crack cocaine and asked if he would be willing to trade pills for crack. Ward responded affirmatively, returned to the bedroom and shut the door.

A few seconds later, Ward came out of the bedroom with ten pills wrapped in newspaper that Agent Moore exchanged for $80. Following a brief conversation in which Ward provided Agent Moore his telephone number for future contact, Agent Moore left. At a prearranged location, Agent Moore gave the pills and remaining money to Agent Heggelund. According to the state’s expert chemist, all of the pills were similar in appearance and he tested only one of the pills, which was positive for oxycodone. Sergeant Renton obtained arrest warrants for defendant and Ward, who was at large at the time of trial.

Mary Maggiore, defendant’s mother, testified on behalf of the defense. Ms. Maggiore said that she took defendant to the hospital on May 17, 2001, for outpatient surgery. However, she acknowledged that he returned home sometime after lunch.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him. Specifically, defendant asserts that there was no evidence that he orchestrated or facilitated the drug sale between Agent Moore and Calvin Ward, and thus, the state failed to prove that he acted as a principal to the drug transaction.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

| ¡¿Distribution of oxycodone is defined in LSA-R.S. 40:967(A)(1), which provides that it is unlawful for any person to knowingly or intentionally distribute a controlled dangerous substance classified in Schedule II. Oxycodone is classified in Schedule II as a controlled substance. LSA-R.S. 40:964(A)(l)(o). The term “distribute” is defined as “to deliver a controlled dangerous substance ... by physical delivery.” LSA-R.S. 40:961(14). Delivery is defined as the “transfer of a controlled dangerous substance whether or not there exists an agency relationship.” Delivery has also been jurispru-dentially defined as transferring possession and control. State v. Celestine, 95-1393 (La.1/26/96), 671 So.2d 896, 897.

A defendant may be guilty of distribution as a principal if he “aids and abets in the distribution or if he directly or indirectly counsels or procures another to distribute a controlled dangerous substance .... ” State v. Bartley, 00-1370 (La.App. 5 Cir. 2/14/01), 782 So.2d 29, 32-33, writ denied, 01-717 (La.2/22/02), 809 So.2d 981.

To support a defendant’s conviction as a principal, the state must show that the defendant had the requisite mental state for the crime. State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, 941, writ denied, 01-3406 (La.10/4/02), 826 So.2d 1122. Distribution of a controlled dangerous substance only requires general intent. State v. Banks, 307 So.2d 594, 596-597 (La.1975); State v. Ruffin, 02-798 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 631. General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10(2).

In the present case, although defendant did not hand the pills to Agent Moore and Agent Moore did not hand the money to defendant, Agent Moore’s testimony established that the defendant arranged the transaction with Ward and | ^procured Ward to sell the pills to her. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Simmons, 03-20 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1255. By returning the guilty verdict, the jury obviously believed Agent Moore’s testimony. After reviewing the record, we find that rational jurors, viewing the evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant was a principal to distribution of oxycodone. Based on the foregoing discussion, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant contends that the trial court erred in denying his motion for new trial. Defendant asserts that the motion for new trial should have been granted because the trial court improperly allowed evidence of defendant’s prior drug problem and also improperly excluded the police report as evidence. For the reasons which follow, we find that the trial court did not abuse its discretion in denying defendant’s motion for new trial.

Pursuant to LSA-C.Cr.P. art. 851, a motion for new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied no matter upon what allegations the motion is grounded. The ruling on a motion for new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only where there is a clear showing of abuse of that discretion. State v. Badeaux, 01-618 (La.App. 5 Cir. 11/27/01), 802 So.2d 905, 908.

In the motion for new trial, defendant urged that the trial judge should have granted his motion for mistrial because inadmissible other crimes evidence was introduced during the prosecutor’s cross-examination of his mother. When the prosecutor asked defendant’s mother if defendant “has a drug problem smoking 17crack,” she responded, “I know he had.” Defendant objected and moved for a mistrial, which the trial judge denied. Subsequently, the prosecutor revisited the subject when he stated, “Now, ma'am, you said that you are aware that your son had a problem with smoking crack cocaine. Is that correct?” Ms. Maggiore replied, “He had, yes.” The defense objected again, pointed out there was no notice of defendant’s past drug use at the pre-trial Prieur hearing, and reurged the mistrial motion. The state argued that the testimony was relevant to the credibility of Agent Moore, who had testified about the defendant’s crack cocaine use at the house. The trial court agreed with the state and denied the motion for mistrial. The trial court reaffirmed its ruling when denying the motion for new trial.

LSA-C.Cr.P. art. 770 provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[.]

As a general rule, Article 770 does not apply to testimony by a state witness, since a witness is not considered a “court official.” However, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the state and triggers the rule mandating a mistrial. State v. Jones, 00-162 (La.App. 5 Cir. 7/25/00), 767 So.2d 862, 866, writ denied, 00-2484 (La.6/22/01), 794 So.2d 783.

A “[mjistrial is a drastic remedy and is warranted under La.Code Crim. Proc. art. 770 only when a remark or comment referencing an accused’s commission of other crimes results in prejudice to his substantial rights sufficient to undermine the fairness of trial.” State v. Broaden, 99-2124 (La.2/21/01), 780 So.2d 349, 360, fn. 5, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). The determination of prejudice and the ruling on a mistrial is within the sound discretion of the trial court. Id. at 361.

An exception to Article 770’s rule requiring a mistrial is made if the evidence is substantially relevant to some purpose other than to show that the defendant is a bad person and, therefore, more likely to have committed the crime. The trial judge must balance the pertinent factors to determine whether the probative value of the evidence is outweighed by its prejudicial effect. State v. Kirkpatrick, 443 So.2d 546, 556 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984).

In the present case, the complained of evidence is attributable to the state, since the prosecutor twice elicited the same response from the witness. However, we find that the references to defendant’s past crack cocaine use were independently relevant to negate defendant’s theory that he was an innocent bystander. Moreover, even if the evidence of defendant’s past drug use should not have been introduced, we find any error in its admission to be harmless. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 785, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Considering that there was evidence of defendant’s present cocaine use and considering the evidence against the defendant, we find that the guilty verdict was surely unattributable to any error in the brief references to defendant’s past crack cocaine use.

Defendant also contends that the trial judge erred in denying the motion for new trial on the basis that the police report was improperly excluded. However, defendant did not urge this claim in the motion for new trial or at the hearing on the motion. Since the issue was not before the trial judge, the judge could not have abused his discretion in denying the motion for new trial on this basis. However, 19since defendant strenuously objected at trial to the exclusion of the police report, we will consider the merits of this argument.

At trial, defendant asserted that the police report was admissible because it showed that Agent Moore and Sergeant Renton had embellished the facts to implicate the defendant. The state argued the document was hearsay, and the trial judge ruled the police report was inadmissible.

According to LSA-C.E. art. 803(8)(b)(i), investigative police reports are inadmissible hearsay. State v. Berkeley, 00-1900 (La.App. 5 Cir. 5/30/01), 788 So.2d 647, 653, writ denied, 01-1659 (La.4/26/02), 814 So.2d 549. Therefore, the trial judge did not err in excluding the report. Moreover, the trial court gave defense counsel wide latitude in questioning both Sergeant Ren-ton and Agent Moore. Sergeant Renton testified that his report did not contain many of the statements Agent Moore said the defendant had made. Additionally, Sergeant Renton admitted that his report contained many omissions. Sergeant Ren-ton explained that he does not include every detail of an occurrence in a police report because it would be physically impossible due to his workload. The trial court even permitted the defense to read portions of the police report, so that the jury heard the actual verbiage of some of the report. Accordingly, we find that the trial judge did not err in excluding the police report at trial.

On appeal, defendant also asserts that the trial court erred by refusing to continue or to stay the trial after granting the “State’s Notice of Intent” so that he could apply for supervisory writs to this court. Before trial, the district court held a hearing on the state’s notice of intent to introduce other crimes evidence, specifically the defendant’s statements and actions at the time of the incident regarding crack cocaine. Although defendant noticed his intent to apply for writs, neither the record nor this court’s computer system reveals that defendant filed a writ.

ImThe defendant did not include this claim in the motion for new trial. Although he contemporaneously objected to the court’s ruling, the defendant does not on appeal, specify how he was prejudiced by the lack of a stay or continuance, nor does he cite any legal authority in support of his position.

According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Inzina, 31,439 (LaApp. 2 Cir. 12/9/98), 728 So.2d 458, 469; State v. Bell, 00-1084 (La.App. 5 Cir. 2/28/01), 781 So.2d 843, 848, writ denied, 01-0776 (La.4/26/02), 813 So.2d 1098.

Considering that defendant merely asserts his position, but fails to include argument or any legal citation in support of the position, we find that defendant has not briefed this position. Thus, this assertion presents nothing for review.

Considering the foregoing discussion, we find that the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action at this time.

For the reasons set forth herein, we hereby affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . State v. Prieur, 277 So.2d 126 (La.1973)